UPDATE: The Manhattan District Attorney's office said in a statement after publication that after the DA was "provided with the available footage last night" that prosecutors would "dismiss the Assault charge" and offer an adjournment in contemplation of dismissal for the remaining charge, which the Legal Aid lawyer said was inadequate. Scroll down for further updates.
Manhattan District Attorney Cy Vance has charged a homeless man with assaulting an officer, despite body camera footage showing how cops punched, pepper-sprayed, and held his neck on the ground for allegedly taking up more than one seat on the subway car.
Joseph, a 30-year-old Bronx hair stylist, was on a 6 train on May 25th heading to Brooklyn when NYPD Officers Adonis Long and Shimul Saha told him to get off the train because he was taking up more than one subway seat, the man's public defense attorneys say.
"Step off or I have to drag you off," one officer said, telling him he's keeping the train from continuing, in a video made public by the Legal Aid Society.
"Why am I holding up a train when I'm sitting on here when I'm going to Brooklyn?" the man said in the video.
Officer Long attempts to physically remove him from the train and Joseph pulls back and tries to take the officer's hand off of his body, the video shows.
Long responds by punching him in the face, twice, with his right hand.
Joseph's glasses fly off his face. During the encounter, Joseph screams in pain as he is attacked.
"Don't touch me, get off of me," he says. "Why are you fucking hitting me?"
He's thrown to the subway platform floor. When he's standing back up again near a trash can on the platform, standing what appears to be at least a few feet from the officers, Long pepper sprays him in the face.
A group of officers detains him and searches his belongings, which they have tossed and kicked off the train car. They pull his hair, hold a hand on his neck, yell at him to relax while he tells them he's having a panic attack, and force him face down with his hand and legs bent behind his back, the video of his arrest shows. His face began bleeding during the arrest, and medical personnel took him to a hospital on a stretcher.
"I felt like my heart was going to fall out," Joseph told THE CITY, which first reported on his arrest. He was originally arrested for resisting arrest, obstruction of governmental administration and a local law violation for taking up more than one seat on the subway.
Ultimately, DA Vance charged him with second degree assault and resisting arrest.
The officers said Joseph was "flailing his arms and kicking his legs" and had kicked Long's right hand, the criminal complaint says. As a result, Long told Saha that "because of the swelling he is unable to open and close his hand without experiencing pain."
It is not clear from the video that the Legal Aid Society released where Joseph kicked the officer's hand. Long punched Joseph's face two times with his right hand, which was the same one that was injured.
"We are reviewing the footage and continuing to investigate all aspects of this interaction," DA Vance's spokesperson Caitlyn Fowles said in an email.
During an arraignment, prosecutors said officers told Joseph to leave the train multiple times since it is only for essential workers during the COVID-19 pandemic and that the injured officer would be off-duty for two weeks due to the knuckle injury.
Vance's office has said publicly he'll no longer prosecute low-level offenses—including taking up two seats on the subway. The policy has been in place since March 2016. During the protests against police brutality and the historic curfew in NYC, Vance similarly said he'd decline prosecution for low-level protest arrests, but has not committed to dismissing criminal summons for curfew violations.
In the subway attack, Joseph was not criminally charged with taking up two seats in the subway. But the allegation of such is what spurred the officers' physical force against him on a mostly-empty train about 12:30 a.m. that Monday—in the middle of the subway system's ongoing overnight closures in which unhoused people are booted from trains.
The man's attorney, Edda Ness with the Manhattan Trial office at Legal Aid, called for the officers, Long and Saha, to be fired immediately and DA Vance to dismiss charges.
"The brutal attack on Joseph by these officers is both unconscionable and completely indefensible," Ness said in a statement. "It’s equally shocking that the Manhattan District Attorney’s Office, despite seeing this video, chose to bump up the charges against our client."
The NYPD did not immediately respond to questions.
UPDATE, 4:15 p.m.: After publication of this article, Manhattan DA Vance's spokesperson Fowles said Joseph's felony assault charge would be dismissed.
The DA would offer an adjournment in contemplation of dismissal (ACD) for the separate misdemeanor charge for resisting arrest, which would mean the case would be dismissed and sealed if he is not arrested for six months after taking the ACD.
She added "potential police misconduct" was also under review.
"Our office has charged dozens of uniformed officers for official misconduct and violence since 2010, and will continue to do so in any case where such charges are supported by the facts and the law," Fowles said.
Joseph's lawyer, Ness, said the "offer of an ACD falls woefully short."
"Up until yesterday, the DA's office fully intended to prosecute this case as a felony. It's shameful that it takes a bad headline for Vance and his ADA's to finally do right by our vulnerable clients," Ness said. "We demand that DA Vance immediately dismiss all charges pending against Joseph."
The NYPD said the incident is "under review."