A freelance reporter recently publicized her shocking evening in a New York City jail cell following her arrest while riding the subway. One might think conduct would have to be quite outrageous to justify arrest on the nation’s busiest subway system.
What was she doing to bother fellow passengers to the point that she needed to be removed by police? This “criminal” had the audacity to put her foot up on an adjacent, empty subway seat. That’s right, a woman was arrested and spent four hours in a holding cell for conduct that interfered with no one.
While putting your feet on the furniture might be considered rude—it certainly would get you a tongue-lashing in the average childhood home—is it necessary to make such conduct criminal?
The New York City Transit Authority’s rules of conduct specifically forbid one from placing “his or her foot on a seat on a station, platform or conveyance,” under Section 1050.7(j), along with a host of similar misbehaviors. While it is unclear whether the reporter was familiar with Section 1050.7(j)—which details “disorderly conduct” on the subway—New York City police officers sure are.
According to a 2012 report, in 2011 more than 6,000 tickets were handed out, and some 1,600 New York City transit deviants were arrested for violating Section 1050.7(j) train etiquette rules. Putting your foot up on the empty seat in front of you is not the only act that has drawn the ire of police:
- Last year, two men were reportedly arrested by New York police for “manspreading” on the subway;
- A guitarist was arrested for strumming on a subway platform, over the objection of an onlooker who suggested to police that New York City has “bigger problems” to address than the sound of music; and
- In Washington, D.C., a 12-year-old was arrested in a transit station for eating a french fry, as part of a “zero tolerance” crackdown against misconduct on the Metro.
Given the disproportionate nature of the D.C. arrest, lawyers for the pommes frites-eating student challenged the legality of her arrest in court. In Hedgepeth v. Washington Metro Authority (2004), then-D.C. Circuit Judge John Roberts wrote the majority opinion upholding the constitutionality of the arrest, explaining that the question that courts have to answer “is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution.”
That’s where the rubber meets the road. Disorderly conduct laws that criminalize transit faux pas are a policy concern for citizens to address through their elected representatives. Roberts correctly implied that just because a law is unprincipled or draconian does not mean it is an unconstitutional law that courts are equipped to strike down. As the late Justice Antonin Scalia might have said, such laws are “stupid but constitutional.”
Arresting someone, rather than issuing that person a warning or a citation, for conduct as inconsequential as putting a foot up on the subway imposes real consequences on the real people who are harmed by policymakers who fail to consider the gravity of their actions. Congress and state legislatures should reform criminal laws that attach the state’s greatest power—that is, to arrest, prosecute, and, in some cases, imprison someone—to the most trivial mishaps.
There is hope for those who wish to curtail the misuse of the criminal justice system. In June, New York Mayor Bill de Blasio signed the Criminal Justice Reform Act in an effort to take certain low-level offenses—mischief like jumping a subway turnstile—out of the criminal justice system and subject violators to civil penalties instead.
In Washington, D.C., the zero-tolerance policies that resulted in the arrest of the french fry culprit were changed too, according to Roberts, now United States Supreme Court chief justice, “after those responsible endured the sort of publicity reserved for adults who make young girls cry.”