James Shalley has decades of experience handling Desk Appearance Tickets in New York City, Westchester, Nassau, and Putnam Counties.
NYPD Campaign of Bad Appearance Ticket Advice
NYPD War on Lawyers: Misinformation and Bad Legal Advice in DAT Cases
By James Shalley
For reasons that I have never fully understood, the NYPD has been engaged in a long standing, relentless, and aggressively obsessive war on lawyers. As a longstanding criminal defense firm in New York City, we get telephone calls from people who have received Desk Appearance Tickets just about every single day. Therefore, for more than two decades I have been regularly hearing the stories of people who have been arrested by the NYPD and given Desk Appearance Tickets.
In a vast, overwhelming majority of Desk Appearance Ticket cases, callers who received DATs report receiving the following information and advice from the police officer or Detective who arrests them:
You haven’t been arrested. You “just got a DAT”.
You don’t need a lawyer.
You SHOULDN’T hire a lawyer.
Your case will “Just be dismissed.”
These items of misinformation are so routinely reported to me over the years, that I can only conclude that it is a policy, if perhaps unwritten, of the NYPD to provide this bad legal advice to people they arrest and process through Desk Appearance Ticket procedures.
I routinely have to get into debates with people who disregard the advice of the police sufficiently to make a call to a lawyer, but still can’t quite surrender to the notion that the police officer who arrested them might not be the best source of legal advice.
Personally, I believe that advising people that they don’t need a lawyer or that their cases will be dismissed is itself a form of legal advice. How do you know that a person does not need a lawyer unless you are a lawyer familiar with the precise legal situation of the person? Telling someone that a case will be dismissed is also a form of legal opinion that a police officer is not qualified or authorized by law to provide. At the very best, this sort of advice occupies a gray area in terms of the unauthorized practice of law. At less than the very best, it represents the crime of unauthorized practice of law.
When police make arrests, they occupy a particular position of authority to those they arrest, and the psychological dynamic of the situation is such that providing bad legal advice is especially horrific. People frequently have an odd affinity for the police officers who arrest them. At the same time as people report the false, and horrifically bad legal advice provided by the police, they will often report how nice and kind and polite the officer was. This professional attitude of the police, when it occurs, is of course ideal in several ways, but it creates problems when the nice police officer is providing bad and wrong legal advice, sometimes extremely dangerously wrong.
People often forget that when a police officer is nice to you, this doesn’t somehow make him or her a lawyer, and it certainly doesn’t make him or her your lawyer. In fact, of course, the police officer who arrests you is about as far opposite “your lawyer” as is possible.
You Haven’t Been Arrested? Really?
This old saw is one of the favorites of the NYPD in their obsessive policy of making the lives of lawyers more difficult. I feel sometimes as if I have spent a good portion of my professional life arguing with callers about whether or not they have been arrested. People call me for help presumably because they want to take advantage of my experience and expertise as a criminal defense lawyer, and then they proceed to debate me when talking about the “arrest”. “I wasn’t arrested, I was given a DAT.” they will say. To this I will gently remind the caller that in fact he or she was arrested. Thanks to the misinformation campaign of the NYPD in its insane war on lawyers, however, about 75% of the time, I will hear back something like, “No the police officer told me I wasn’t arrested. I just got a DAT.”
Further, this common NYPD legal advice tidbit is actually a dangerous notion for the person to believe, because there are several circumstances in which telling someone that you have never been arrested (because the nice police officer told you so) can get a person who in fact was arrested into significant difficulty.
One example is a non-citizen who tells immigration (on the strength of the nice police officer’s advice) that he has never been arrested. The non-citizen is at risk of having an application denied, or even potentially being removed from the country or even being prosecuted for lying on a federal form. Similarly, a person who is seeking certain secure employment and who is asked about prior arrests, could be denied employment or potentially prosecuted for lying for failing to disclose the DAT arrest.
You Don’t Need a Lawyer, You Shouldn’t Hire a Lawyer?
Another old favorite in the arsenal of weapons in the NYPD war on lawyers is to tell people not to bother with a lawyer. This is astounding to me, not just because I am a lawyer, but because how it illustrates the psychological power the police have over the people they arrest to cause them to think and behave counter to logic and their own interests.
You have been arrested. You are charged with a crime. You are being forced to appear in Criminal Court. If you don’t show up when they tell you to show up, they will send armed officers to find you and drag you into Court in chains. You technically, at least, are at risk of a criminal conviction and jail.
What exactly is it about this scenario that suggests to anyone that actual legal advice is not worth getting? You have about twenty days before court, but never mind. What could possibly go wrong for you in a criminal case in New York City Criminal Court? Forget about it. Just show up in Court that day and hope for the best.
Does this sound like the smartest course of action to you, really? If you think about it, not seeking legal advice as soon as you are able in this situation is probably just about the opposite of the smartest course of action.
I have never understood what motivates this policy of the NYPD to provide the worst possible legal advice to people (not to seek legal advice). Just say nothing about it. Ignore questions from those they arrest seeking legal advice. Remind the people they arrest that they are not lawyers and that they should talk to a lawyer if they need legal advice. How on Earth it got to the point where someone in the NYPD decided to affirmatively go out of their way to provide bad legal advice is unfathomable.
The only way really to know that you “don’t need a lawyer” is to be a lawyer capable of grasping the legal situation and knowing the client’s precise circumstances.
Sometimes, the NYPD will modify the general advice about not needing a lawyer at all and tell everyone in the world, regardless of financial circumstances, that lawyers are generally available for free at taxpayer expense. I have had countless wealthy, non-indigent clients, including doctors, lawyers, hedge fund managers, real estate investors, and others over the years tell me that the police attempted to convince them that NYC taxpayers will give them a lawyer for free.
This is obviously false. I’m certain NYC taxpayers would be quite alarmed, to say the least, at the notion that they are providing legal services for all comers in Criminal Court, regardless of their financial circumstances.
NYC taxpayers are only required to pay for the lawyers for indigent people, as in people who generally meet Federal poverty guidelines, not for doctors, lawyers, hedge fund mangers, and other folks as far from indigent as we are from the moon.
Not only do the public defender organization jealously guard their limited resources thorough financial screening to make sure that only the truly indigent get to take advantage of their services, Judges in Criminal Court are of course also especially vigilant in Desk Appearance Ticket cases to make sure that the people who use taxpayer funded lawyers are in fact indigent.
James Shalley has been practicing criminal defense in New York for more than 30 years.