Graffiti and Police Misconduct: Knowing and Understanding Your Rights
Recently, police officers in the United States have been under fire for their violent and brutal arrests of suspects and inhumane treatment of those under their custody and control. According to www.mappingpoliceviolence.org, a research collaborative, collecting comprehensive data on police killings nationwide in efforts to quantify the impact of police violence in communities, in 2014 alone, at least 1,149 people were killed by the police, 304 black people and more than 100 unarmed people of color were victims of police brutality or misconduct. Since January 2015, at least 415 people have been killed by U.S. police, according to www.killedbypolice.net, a site that collects corporate news data on people killed by nonmilitary law enforcement officers, whether in the line of duty or not, and regardless of reason or method.
Whites have also been victims of police violence, in fact, in more frequent numbers than minorities. However, such instances have been receiving far less media attention. Hispanics and those from other ethnic backgrounds have also received their share of discriminatory and violent policing, such as the tragic death of young graffiti writer, Israel Hernandez, known as “Reefa.” Hernandez died after a chase by Miami Beach Police in August of 2013. While working on a piece on Collins Avenue and 71st Street in Downtown Miami Beach, he was spotted by a police officer. He most likely became alarmed by the presence of the police because chase ensued. The chase and Hernandez’s life ended when the police caught up to him and he was tasered. He was only 18 years old and had recently received legal status – a full life ahead of him.
This could have been avoided.
Laws Regarding Graffiti-Writing
As a lawyer, I have always advised my clients to know and understand the laws that relate to their job or chosen activities. When you know your rights and the law, you can respectfully assert them in the face of police encounters.
In Florida, where the Hernandez incident occurred, like in most states, graffiti writing is categorized as vandalism or criminal mischief (see Florida Statute 806.13 where criminal mischief is defined as willfully or maliciously damaging real or personal property). If found guilty, in addition to being sentenced to pay a fine or serve up to 60 days in prison, one is required to perform at least 40 hours of community service and at least 100 hours of community service related to graffiti removal. For minors, both the defendant and his/her parents are jointly-liable for the fines. But, it doesn’t end there. If the defendant minor is of driving age, his driver’s license may be revoked up to a year (or withhold issuance of license, if he does not have one and is planning to apply).
One interesting provision in this statute is that the Florida legislature made it their responsibility to confront the “blight of graffiti,” that they are not allowing any municipalities to create any ordinances related to the making of graffiti. Furthermore, they are even encouraging municipalities to increase the punishment for graffiti-related offenses. I find this quite ironic especially because Hernandez was tagging the wall of an abandoned McDonald’s in a blighted area, and if given time to finish, would have likely improved the appearance of the area.
In New York, in order to be found guilty of Making Graffiti (NY Penal Law 145.60) one needs to have 1). etched, painted, covered, drew or marked on public or private property intending to damage the property; and 2). have no express permission from the owner or operator of the property. Unlike Florida, New York does not impose jail time for graffiti-writing, but sentences the writer to a period of probation (which could last up to three years – for an amusing example, click here) and perform community service involving graffiti removal.
Also, unlike Florida, the New York municipalities are given free reign to enact graffiti-related ordinances. For example, New York Administrative Code 10-117 prohibits graffiti writing without the express permission of the owner or operator of the property, but it also criminalizes the sale and possession of spray paint cans, permanent markers and etching acid in certain instances (no sale to minors). Anyone who is found violating these provisions could be sentenced to pay a fine of up to $1,000, jail time of up to a year, or both. New York Administrative Code 10-117 also authorized the creation of an Anti-Graffiti task Force (see NYC Admin. Code 10-117.1); the offer of a $500 reward for anyone “providing information leading to apprehension, prosecution or conviction of a person for crimes involving graffiti vandalism” (see NYC Admin. Code 10-117.2); and imposes a duty on owners of commercial and residential buildings to keep their properties graffiti-free (see NYC Admin. Code 10-117.3).
Why No Graffiti Love?
So you might ask, why are the state legislatures hating on graffiti? To put things into context, let’s explore the history of graffiti and the government.
According to sociologists, Ernest Abel and Barbara Buckley, the advent of graffiti began in the 1920s, but it didn’t really catch on until the 1960s when it became a form of artistic expression for political activists and young people. At this time, NYC was in the throes of economic depression and was hard-up for money and personnel to clean up or prevent subway graffiti writing. The government deemed graffiti as a blight and a quality-of-life issue. This view was buttressed by the Broken Window Theory by social scientists James Wilson and George Kelling, which proposes that signs of urban decay or blight (broken windows) or an unmaintained area (excessive litter, graffiti, etc.) send a message that the area is not monitored and that one can engage in criminal activity without fear of detection.
This view has been criticized by other social scientists, such as Robert Sampson and Stephen Raudenbush, who show the faulty causal chain between physical disorder and the crime rate, but instead propose other factors that contribute to criminality. Also, state governments, such as New York City, have misused this theory by enacting “zero tolerance” policies against crime, by ignoring other social factors that could contribute to criminality, effectively criminalizing poor people of color for living in impoverished communities that lack resources to keep their communities as well-kept as more affluent neighborhoods.
This is the reason for the lack of graffiti love from the government – it is a justification for more police surveillance and extreme social control for poor people of color.
Know-Your-Rights within Police Interactions
So now that you know the relevant laws, what about your rights? There are a lot of good resources out there, but I would like to point out two that are very informative and user-friendly. The information below has been taken from ACLU’s Know-Your-Rights materials. I also like Cop Watch’s informative brochure, which includes information about how to deal with the police in your home, car and if you belong to a special or vulnerable group (minors, LGBT, homeless, undocumented, etc.). Recently launched, Just Info (1-85- JUST-INFO) offering free access to legal information about the criminal penal system for any New Yorker, 24 hours a day, is also a good resource.
Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.
IF YOU ARE STOPPED IN YOUR CAR
Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
Upon request, show police your driver’s license, registration and proof of insurance.
If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.
IF YOU ARE QUESTIONED ABOUT YOUR IMMIGRATION STATUS
You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)
If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
Do not lie about your citizenship status or provide fake documents.