Until this year, jaywalking was illegal in New York City. Yet, it would be quite a challenge to find a New Yorker who never jaywalked before 2025. While low-level offenses like jaywalking or littering can be cause for arrest, police officers typically exercise personal discretion in deciding whether to pursue such cases. As affirmed by Justice Gorsuch in Nieves v. Bartlett, “no one doubts that officers regularly choose against making arrests, especially for minor crimes, even when they possess probable cause [for arrest].” This subjective arrest standard can allow for the infiltration of personal bias into arrestmaking decisions. In these cases, someone may face arrest not solely because of their illegal conduct, but because of their expression. For example, a police officer who typically does not arrest for jaywalking may be incentivized to arrest a jaywalking civilian wearing a political slogan that the officer disagrees with.

Read More