Illegal Immigrant Charges Retaliation by City Officers

Published: April 2, 2008 – New York Times

The fine for a disorderly conduct summons can be as little as $25. But Waheed Saleh, originally from Jenin in the occupied West Bank and now living in Yonkers, did not want to pay it because, he contends, a principle was at stake.

So, four years and four months after exchanging words with a police officer as Mr. Saleh smoked a cigarette outside Keenan’s Bar and Grill in the Bronx, he found himself on Tuesday in federal court in Manhattan defending, in his mind, his constitutional rights.

In 2005, about a year after the disorderly conduct summons and after he had filed a harassment complaint with the Civilian Complaint Review Board against the police officer, Mr. Saleh was taken into custody by federal immigration officials as an illegal immigrant, which he is.

Mr. Saleh says his detention, along with the threat of deportation to the West Bank, was in retaliation for complaining about the police officer, Kishon Hickman. Deportation proceedings are pending while the trial continues.

In his civil lawsuit, which seeks unspecified damages, Mr. Saleh contends that his right to free speech and to petition the government for a redress of grievances was abridged.

By telling immigration officials that he is illegally staying in the United States, the police have committed an unconstitutional act of official retaliation, Mr. Saleh contends. Mr. Saleh claims that the harassment extends to an unjustified charge of unlicensed cab driving and suggests that entrapment was at work.

There is a local issue, too. Mayor Michael R. Bloomberg, in what is known as Executive Order No. 41, issued in 2003, encouraged all residents to seek aid from city agencies without fear that their immigration status would be used against them. Mr. Saleh says the city failed to protect him under that order.

Added to the dispute is the mood of anti-Arab sentiment after the terror attack on the World Trade Center in 2001. Mr. Saleh says he remembers the police officer’s “very sharp” tone when he said, “Go back to your country.”

With Judge Sidney H. Stein presiding, two men and six women were selected as jurors on Tuesday. (One woman in the jury pool said she would have difficulty believing the testimony of an illegal immigrant; she was excused.)

The jurors heard opening arguments from both sides and testimony from Mr. Saleh.

Besides Officer Hickman, who has since been promoted to sergeant, the suit names Capt. Kevin Nicholson as a defendant. Susan Scharfstein, a city attorney representing officers, said in her opening arguments that Mr. Saleh was not singled out for harassment by the two officers; his arrest on the unlicensed cab driver charge followed a widespread crackdown on gypsy cab drivers. Far from being a hapless target of official misconduct, she said, Mr. Saleh had been given as many as 30 tickets and summonses for double parking, unlicensed cab driving and other vehicular offenses.

And the Police Department did not conspire with immigration authorities to retaliate against Mr. Saleh, as the lawsuit claims. Instead, the immigration case against Mr. Saleh developed from a “chance” meeting between Captain Nicholson, then a police lieutenant, and an immigration agent visiting Captain Nicholson’s precinct house.

But to Mr. Saleh’s lead lawyer, Tushar J. Sheth, the case is indeed about official retaliation. When the Police Department directly communicated with Immigration and Customs Enforcement about Mr. Saleh’s immigration status, “they did this to silence him, to hurt him,” Mr. Sheth said.

Mr. Saleh, who now works in Yonkers installing security cameras, testified that Sergeant Hickman was so bent on revenge that he induced an attractive female acquaintance to flirt with him on May 22, 2004.

When she asked for a ride to a nearby spot, he agreed to drive her. When the police stopped his car, the woman opened her handbag to give him $4, and he was then ticketed for illegal cab driving, he testified.

The city is scheduled to cross-examine Mr. Saleh on Wednesday in an attempt to undermine his testimony, presumably including the account of trickery by the female passenger.

But two facts are not in dispute. Mr. Saleh challenged the original disorderly conduct summons from November 2003 and lost, ultimately paying $100.

And the police review board examined Mr. Saleh’s complaint of police harassment, which was filed on Dec. 19, 2003. The board rejected the complaint.