They Fought the Law and the Law Didn’t Win…at First

By: - December 28, 2018

NYPD police union boss Patrick Lynch came out fighting Wednesday morning after an incident (which went viral over the weekend) portrayed a sole NYC transit cop outnumbered by a gang of “vagrants” on a Manhattan subway platform. The group of five men appearing to be intoxicated grousers decided to go up against the lone police officer. How do we even know about this incident? Well, yet again, one of those lovely, ubiquitous cellphone-carrying videographers was generous enough to capture the life-threatening action, opting to exercise civic duty by capturing footage (evidence) of an outnumbered cop trying to repel the fever-pitch frenzy of several rebels with an unknown cause. God Bless America.

U.S. Army veteran and NYPD police Officer Syed Ali fended off the five drunken men who advanced at him on an East Broadway subway station. As is often the case, only a brief portion of the incident went viral, portraying Officer Ali maintaining distance from the five subway lumpers in bundled formation, each taking stumbled and fumbled turns at the lead agitator role. Swinging his ASP (retractable baton) and kicking throughout repeated commands to get back, one of the staggering assailants fell onto the railroad track—equilibrium stolen by alcohol. (The labyrinth of the NYC subway system does not operate according to any strict schedule; trains come and go 24/7/365.)

From the video we do not have a complete picture leading up to the event, other than print-media reports that a female subway rider alerted Officer Ali of a group of vagrants badgering her at the far end of the platform. Evidently, Officer Ali found them carpeting the rank concrete subway platform and asked them to move along. None obliged. In fact, it was as if he stirred five scruffy bears.

In the context of the video footage, ordinarily a lone cop confronting too many variables (subjects, cars, etc.) is going to summon backup via police radio. I presumed that was already done, since all we see in the video is one cop holding five hoodlums at bay and no movement to call for additional police units. Having grown up in NYC, with thousands of train rides under my belt and urban grunge on my sneakers, I can attest that when a transit cop needs help, back-up seems to fall from the sky. I’ve witnessed platforms go from dank gray dirt to a sea of NYPD blue in nanoseconds. One police code—four digits hyphenated in the middle—garners more than enough cop cavalry. I am surprised to see a solitary NYPD cop on a subway platform; traditionally, there were typically at least two patrolling as a set. Since that era, however, NYPD police administration somehow found it acceptable to assign transit cops to solitary patrols for its vast subterranean territory. Because of this incident (as if this is a new and inconceivable thing), NYC Mayor Bill de Blasio and NYPD police Commissioner James P. O’Neill altered course and boosted transit cop staffing:

According to the NYPD website, the 55,000-member police agency (36,000 sworn) has “12 transit districts to police the subway system and its nearly six-million daily riders.” Nothing like way too many people in tunnels. eh? And one of those subway patrons, a woman, alerted one NYC transit cop, Ali, about five men who were harassing her. Pointing them out, Officer Ali approached the gaggle and requested they move on. I guess they took exception to the policeman’s request and decided to test his authority (ASP). Technically, Officer Ali fared well. So did all five assailants —Oseas Garcia, 32, Juan Munez, 27, Raul Ruiz, 29, Elisoe Alvaraz Santos, 36, Leobardo Alvarado, 31— whose crimes against justice simply resulted in a catch-and-release scenario.

But that was not the end of it. Fireworks would follow.

Early Wednesday morning, the police union figureheads learned that the Manhattan district attorney, Cyrus Vance, decided to decline prosecutions of the five cop-assaulting subway dwellers, returning them back to the wilds of the Big Apple.

Lynch, who heads the Patrolmen’s Benevolent Association (PBA), put it this way: “There’s no telling how much damage these mopes would have done to that courageous police officer had he not been equipped to handle them. Had it gone the other way we might have had a seriously injured or dead police officer instead.” That is fairly accurate. What causes wonder is why Officer Ali did not arrest them on charges of assaulting a law enforcement officer. He clearly felt the need to defend himself and used justified use of force to do so. Yet, he only charged them with “illegal sleeping” on public (Metropolitan Transit Authority) property.

And that explains why the district attorney had a hands-off response.

Others, including New York politicians, question the downgraded charge which, since 2016, is no longer a criminal offense in New York City. Per the New York Post, “Those men were all released when prosecutors dropped the illegal-sleeping charges Monday night, citing a 2016 policy endorsed by the NYPD.” Some reports claim that Officer Ali elected only to charge them with the lesser “offense” since he believed all five men were emotionally disturbed and felt they may actually need mental health evaluations at an area hospital. Although compassion is commendable and police assessments are most often formed in scant seconds, many bellowed it fell far short and essentially cheated justice. But, if the police officer is the victim (as he was in this particular case), he has the right to downgrade criminal charges or not charge at all. Although not necessarily rebuking Officer Ali, most of the comments/opinions I came across are for charging the five agitators with the full monty. Momentum gained steam.

Also in the New York Post was the following from another NYC politician: “City Council Public Safety Committee Chairman Donovan Richards (D-Queens) said, ‘These [five suspects] should have been arrested and charged with something higher’ than sleeping in the subway.” Ding-ding! The consensus kept blooming.

Without Monday-morning quarterbacking, the premise of offsetting criminal charges based on the officer’s belief that the drunkards may be better served by mental health evaluations has validity, but that decision could have been exercised along with still filing assault charges against the men. Ultimately, if hospital personnel distinguish that the five men are perfectly mentally composed and were basically acting out from too much hooch, then the charges go forward in the criminal justice system. Conversely, if the five men are deemed mentally deficient/incompetent, then the system has another route to take—mental health provisions via whatever New York statutes mandate such measures…while also dropping charges is considered.

In Florida, the Marchman Act is on the books and designed for severely inebriated folks whose welfare literally/figuratively falls into the hands of law enforcement officers. Marchman Act precepts are as follows: “…a Florida Statute created to help individuals who: (1) have lost the power of self-control over their substance abuse; (2) do not appreciate their own need for help and cannot make rational decisions regarding their care as a result of their substance abuse; (3) have become a danger to themselves or others.

“Given the right circumstances, the Marchman Act can be an effective tool to compel an addict or alcoholic to engage in treatment when they refuse to do so voluntarily.

“Under the Florida Marchman Act, a civil court can issue an order that requires an impaired individual to comply with a drug and alcohol assessment and treatment. Failure to comply with such a civil court order may result in legal consequences.” Sound sorta familiar? Does this befit the situation which NYPD Officer Ali confronted on the subway a few days ago? Is this relative to him going lightly on the gang of five?

Kind of a moot point now. After all the rebuke stemming from the viral video spreading far and wide, the Manhattan DA’s office came under heavy fire. Declining prosecution seems to be two-fold in this case and the reasoning behind the prosecutor’s office to toss the five cases. Again, the “illegally-sleeping” charge was reportedly decriminalized in 2016, so there is nothing for a prosecutor to nibble on. (For edification and to overcome semantical misinterpretations: just because something is “illegal” does not make it criminal. A red light violation is illegal but only chargeable as a civil infraction, recorded on a traffic citation.) Also, prosecutors act upon what they are given by arresting officers. This circles back to Officer Ali’s decision not to charge the five men with any criminal offenses.

Per the New York Daily News, “As of Tuesday night, none of the men were to be prosecuted, said Danny Frost, a spokesman for Manhattan DA Cy Vance. Frost said the problem is that the police never charged the men with attacking Ali.” Per “Typically, prosecutors base their initial charging decisions on the documents sent to them by the arresting police officers (usually called police reports or arrest [affidavits]). The police complete an arrest report soon after they make an arrest and then quickly forward the report to a prosecutor assigned to do case intake.” That is the conventional definition as to how the arrest/prosecution process works. District attorneys operate with what they are provided by police.

As Mr. Frost defended upon post-release criticisms against the district attorney’s office: “When people are arrested for attacking officers, we prosecute them. These men were not arrested for attacking an officer.” He means they were not formally charged. That is accurate and fair, but during my career I received a call from time to time, with a prosecutor on the other end of the line sparking why I didn’t charge the defendant with this crime or that statute (based on my arrest affidavit narrative). Ethically, they were recommending a more suitable statute to charge,  supplanting the one I went with (even though both were applicable). My explanation was usually founded in officer’s discretion—lightening the load because the arrested party’s behavior was decent and I am a fair-minded guy. This highlights the possibility that Officer Ali’s report did not narrate the melee (unusual…I’m curious). Further, in a metropolis like NYC, it is easily understandable that the prosecutor’s office caseload is too gargantuan to scrutinize each and every police report in order to render suggestions to arresting officers working the beat in a city comprising almost nine million residents (excludes visitors).

Pertinent to the discussion and my professional experience as a cop whose prosecutors sometimes reached out to clarify matters of justice, the Manhattan DA’s office said they didn’t even know about the viral video portraying the attack on Officer Ali until after the men were released. Had they been aware of such criminal deeds against justice and evidence bolstering criminal charges, matters would have been decidedly different.

Despite all this he didn’t and they couldn’t and what the heck! banterthe volume of voices decrying the mildly charged subway bandits and their quick release compels speculation as to what went wrong or who was responsible. Ultimately, the Manhattan DA formally charged the five men; some of them were ultimately collared (arrested) and booked into jail. This engenders an amended or a supplemental police report was written, likely at the behest of the brass at One Police Plaza seeking to put this to bed and signaling that lawlessness will not be tolerated.

Notwithstanding notions of de-policing and the hellfire arguments that police officers fail to de-escalate and only exacerbate situational encounters, Officer Ali explained how and why he countered this specific incident as is exhibited on the bystander’s cellphone video.

Underscoring this entire eye-opening event and the proverbial underworld having nothing to do with organized crime, union boss Lynch coined it quite curtly: “Had it gone the other way, we might have had a seriously injured or dead police officer.” Indeed. On that note, members of the media asked Officer Ali why he didn’t use his service weapon given the circumstances that we now know. His response had to do with the preciousness of life:

Even though a life-threatening situation was forming against life (his and potentially other bystanders on the platform), Ali cited restraints taught in the NYPD police academy and experiences serving in the United States Army.

Going back to what union head Lynch said about almost having “a seriously injured or dead police officer,” what are your opinions about how this played out? By the way, media accounts now state Officer Ali had not called for back-up units until one of the five vagrants fell onto the subway tracks; that is when he requested additional cops and to have the MTA cut off power to the rails since he saw the man laying there while the other four advanced still. Remember: NYC subway trains fluidly come and go, so this ordeal for Officer Ali went from life-threatening to life-saving. And we wonder why cops are a thoroughly unique breed.

NYPD Muslim Officers Society president and NYPD police Captain Adeel Rana said, “We’d like to commend him for his use of restraint where he made sure that he utilized the minimum [force] necessary. It might have something to do with his military training but the majority of it is him being calm under pressure situations.” There is no denying Officer Ali’s actions were commendable…but how close he came to trading his life for restraint remains a palpable factor…and it would have been all on tape.

Should the videographer have gotten more involved (intervened) than just recording video footage of the incident? (Evidence has value, but not more than life itself.) Another view of the viral video portrays a good Samaritan (tan jacket, black baseball cap) attempting to aid Officer Ali by directing the bundle of five to reverse course. Strength in numbers cuts both ways. Had Officer Ali exercised police officers’ discretion to excess by not formally charging accordingly from the get-go? (No judgments —it’s his discretion— but the police union unambiguously thought so, as do others opining publicly.)

As of this writing, three of the five men have been “re-arrested.” Alvarado and Munez were charged with obstructing governmental administration and rioting. Santos faces numerous charges to include attempted assault, menacing, and rioting. Two of the five men remain at large.

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