Police camera footage of Officer Erickson holding a joint (Legal Aid Society)
A Staten Island police officer accused of planting marijuana in a black teenager’s car won’t face any discipline, officials said Monday, despite two newly released videos that have raised serious concerns about the circumstances of the arrest.
In police body camera footage shared by the Legal Aid Society, and first published by the NY Times, Officer Kyle Erickson can be heard fuming about the lack of contraband found on a young man, whom he believes to be a gang member. Shortly after, he’s seen on video dropping something into the backseat of the suspect’s car. According to public defenders and police accountability activists, it was the joint that landed Lasou Kuyateh, then 19 years old, in a Brooklyn jail for two weeks.
“It’s really brazen and unbelievable, but it happens right there in front of you,” said attorney Taylor Poor, who represents Kuyateh. “Officer Erickson fabricated evidence that resulted in my client spending two weeks in jail.”
The incident happened on February 28th of this year, when Kuyateh was driving through the Park Hill neighborhood of Staten Island with three friends. Officer Kyle Erickson and his partner Elmer Pastran pulled over the vehicle, initially claiming that the windows were illegally tinted and that the driver had failed to signal before turning. They said the car smelled like marijuana, and after one of the passengers admitted to smoking weed prior to the traffic stop, the officers searched all four men and both rows of the car. No incriminating evidence was found at first, to the apparent dismay of the officers.
“We gotta find it. We have to find something,” Erickson told Officer Pastran. “You know what I mean?” Moments later, Erickson’s body camera turns off—the result of a malfunction, he’d later claim.
Though the camera does not turn on again for nearly five minutes, Erickson is sometimes visible on Pastran’s body camera. At one point, he can be seen fiddling with something behind the driver’s seat. The footage, according to Poor, shows Erickson “leaning into the back left passenger seat of the car, placing an object on the seat, arranging it, then wiping his hands.” Seconds later, Kuyateh becomes angry, accusing the officers of “putting something in my car.” He’s subsequently handcuffed and prevented from filming.
According to the NYPD’s body camera policy, police officers in New York City are required to turn on their devices when searching someone’s property or conducting a car stop. But as a “failsafe” mechanism, the cameras are technically always running, and are programmed to preserve thirty seconds of soundless video prior to their activation. Cops seeking to manipulate their own recordings have occasionally been stymied by the feature, most notably in Baltimore, where an officer was recently indicted after he unwittingly recorded himself planting pills on a suspect.
In this case, the 30 second automatically recorded video captures Erickson fingering an evidence bag in the center console, moments before reaching purposefully into the space behind the driver’s seat. The area had been repeatedly searched by both officers, and deemed “all clear” by Pastran minutes earlier. But just as the video’s audio is reactivated—signalling that the camera has been switched on—Erickson recovers a joint, which he proudly presents to his partner.
“I found this blunt, okay?” he says. “It was lit when I found it on the floor. Do you want to take them all?” The joint does not appear to be lit as Erickson holds it up. When told by Pastran that only the driver should be arrested, Erickson responds, “All right, listen, we found it, okay?”
Kuyateh—who pleaded guilty to assault as a minor, but had his record adjudicated and sealed—was arrested for the small quantity of weed. A judge granted the prosecution’s request for $1,000 bail, which Kutayeh couldn’t meet, and he spent fourteen days in the Brooklyn Detention Complex. Over the last eight months, he’s appeared in court on ten different occasions, at one point rejecting a plea deal that would’ve given him no additional jail time.
In a phone interview on Tuesday, Kuyateh said that since the arrest, he’s been routinely targeted and harassed by Staten Island police officers. Last month, he was ordering food at a deli when he overheard a shooting. Erickson arrived on the scene and threatened him, Kuyateh says, before directing detectives to cuff him and take him to jail. Despite have no connection to the shooting, he spent eight hours handcuffed in a cell, according to his attorneys.
“Sometimes I can’t sleep. I can’t drive my car. I just keep thinking: if he can put me behind bars for two weeks, if he can direct another man to arrest me, then what else can he do to me?” Kuyateh told Gothamist. He added that many of his friends in Park Hill had some experience with police brutality or misconduct. “These aren’t the white neighborhoods where you can just chill. They want to lock everyone here up.”
The most unusual part of this case, public defenders say, came during an evidentiary hearing last month, when Kuyateh’s attorneys had their first opportunity to grill the police officers about the suspicious footage. But as Poor was preparing to cross-examine Erickson, Judge Christopher Robles abruptly intervened, stopping the hearing for the day and informing the assistant district attorney that Erickson should consider seeking a lawyer. The following day, the case was dismissed and sealed by the Staten Island D.A.’s office, with no further explanation from prosecutors or the judge, according to attorneys.
“It’s hard to see it as anything other than the judge trying in some way to protect the officer,” Poor told Gothamist. “Our client sat in jail because of evidence planted in his car, so we’re absolutely calling for the officer to be fired, at the very least.”
When our attorney complained he said, “This case is dismissed and sealed. What I’m not going to allow happen is my courtroom to become a political place where these things are brought up.”
— Rebecca J. Kavanagh (@DrRJKavanagh) November 19, 2018
The defendant and his attorneys have encountered fierce resistance in their search for answers and accountability regarding the arrest. Both officers were cleared following a “thorough investigation,” according to NYPD spokesperson Phillip Walzak, which determined that there was “no evidence that the officers conducted anything but a lawful stop, performed a consensual search, and had probable cause to arrest the defendant.” Walzak also claims that internal investigators have made several attempts to get in contact with Kuyateh; Kuyateh says he spoke to them once, and that they never called him back.
Meanwhile, a spokesperson for the Civilian Complaint Review Board confirmed to Gothamist that they’d received a complaint, but wouldn’t say whether an investigation was underway. The Staten Island District Attorney’s Office did not respond to our request for comment.
Beyond the apparent lack of consequences for Officer Erickson, police reform advocates say the case illustrates the ongoing failure of New York’s incremental approach to marijuana decriminalization.
Despite Mayor Bill de Blasio’s announcement that police would no longer arrest New Yorkers for smoking pot in public, glaring loopholes in the policy have essentially “shifted the evidentiary threshold to incentivize cops” to make bad arrests, said Jeffrey Fagan, a law professor at Columbia University specializing in police accountability and criminal law. Smokers can still be arrested if they don’t have identification, if they have an open arrest warrant, if they’ve been convicted of a violent crime, or if they’re on parole or probation.
Without full legalization, police can continue using the smell of weed as a pretext for stopping and frisking those deemed suspicious—an outcome repeatedly shown to disproportionately impact people of color. And the NYPD’s reliance on technically illegal arrest quotas, advocates says, means that persistent racial disparities in low level arrests will likely continue in New York City, regardless of piecemeal announcements on marijuana enforcement.
“This is the quota system in action,” Fagan told Gothamist. “If they’re going to incentivize arrests, but there’s not much crime out there, that’s incentivizing police to create crimes.”