Sarah Ryley for ProPublica and the New York Daily News
Amid outrage over a law that empowers the NYPD to remove people from their homes without giving them the opportunity to go before a judge, the de Blasio administration is resisting legislative reforms.
City Hall argues that safeguards are already in place to protect the rights of defendants, and that any changes can be handled internally.
But two lawyers who have worked the front lines, both representing the NYPD in these types of cases, told the Daily News that the department routinely skirts the law and does nothing to make sure innocent people aren’t kicked to the curb.
The law - known as nuisance abatement - uses civil suits to uproot illegal activities conducted in both homes and businesses. Unlike in most cities, the NYPD can initiate these cases by requesting a secret order from a judge closing the premises before the occupants have been notified or given a chance to defend themselves.
But the NYPD, the lawyers said, brings the cases to court without so much as checking if anyone still lives at the home they are seeking to close, or if its targets have been exonerated of the criminal charges on which the nuisance abatement actions are based.
The lawyers requested anonymity before describing a process both were involved with as part of the NYPD’s Civil Enforcement Unit.
In making its case, the unit skirts the law - rarely, if ever, presenting a required photographic inventory of illicit materials found at the premises upon serving the closing orders, the lawyers said.
The NYPD also violates state law by failing to seal documents in criminal cases that have been dismissed, the lawyers said. As a result, they sometimes wind up filed as exhibits in nuisance abatement actions.
But none of that seemed to faze some judges, who routinely signed off on the secret closing orders and settlements that bar people from homes, sometimes for life. A judge who has signed several such orders was also unaware of the required inventories and told the Daily News “never once” have such inventories been provided.
The NYPD and Mayor Bill de Blasio deferred requests for comment to the city Law Department.
The Law Department did not address the two lawyers’ claims, but the department head Zachary Carter said in a statement that the city is still committed to using nuisance abatement to “address community complaints of criminal activity while at the same time ensuring that residents are treated fairly.”
Carter said the use of ex parte orders - the legal term for when an order is sought without the other party present - would be reviewed “to ensure that such orders would only be used in cases of appropriate urgency.”
Overall, the two lawyers who spoke to the Daily News depicted a slipshod operation, basing court filings on police vouchers that list contraband seized during an investigation.
“Everything is kind of like, you know boilerplate, like fill in the blanks or whatever,” one of the lawyers told the Daily News. “Like we get the vouchers, we just plug in the time, the date. Like there’s a lot of mistakes in these (nuisance abatement) orders, you know? Like a lot of them are just a mess.”
The Law Department, tasked with reviewing every case before it is filed, amounted to little more than a “rubber stamp,” the lawyers said. They could not recall one instance when anyone from the Law Department raised a major concern about a case.
In an investigation published last month, the Daily News and ProPublica reviewed 1,162 cases filed during 2013 and the first half of 2014, and found roughly 43% were filed against residences, predominately over alleged drug sales.
The Daily News/ProPublica found that many of the targets pleaded guilty to moving large amounts of narcotics through their apartments. But more than half who gave up their leases or were barred from homes - 173 in total - were not convicted of, or in some cases even prosecuted for a crime stemming from the underlying police investigation.
The revelations contained in the Daily News/ProPublica investigation sparked an outcry from elected officials, with calls for an independent probe.
Congressman Hakeem Jeffries (D-Brooklyn/Queens) said Thursday that the NYPD’s procedures raise serious constitutional concerns. Troubled that minorities are unfairly targeted, he plans to bring “concerns that have been raised around the nuisance abatement program” to the Department of Justice’s Civil Rights Unit.
Over 18 months, 90% of the homes subjected to such actions were in minority communities. the Daily News/ProPublica investigation identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five were white.
Several City Council members said they are in the process of drafting legislation to add stricter requirements to the law, and Speaker Melissa Mark-Viverito’s office said they are studying the issue “extensively.”
In response to the Daily News/ProPublica’s earlier investigation, NYPD Commissioner Bill Bratton and Carter, the city’s top lawyer, held a closed-door briefing on Feb. 25 with City Council members. Some of the Council members were contemplating changes to the law.
Several in attendance told the Daily News that police showed no intention of curtailing their use of secret closing orders, despite Bratton’s statement at a press conference just two weeks earlier that this aspect of the program would be “changing very quickly.”
The Council members said Bratton assured them the NYPD could work out any problems with the program in-house.
“That’s been their constant position,” said Councilman Mark Levine (D-Manhattan), who was at the briefing. “Every issue related to policing policy, including this one, they strongly resist legislative action by the council. They believe that their internal policy-making suffices.”
But Levine said he’s still pursuing changes to the law, and expects the council to introduce a package of bills in the coming weeks.
“We have a democracy and a duly elected body, and it’s our job to draft laws in the interest of the city and we will certainly continue to do so,” he said.
And it’s happening almost exclusively in minority neighborhoods. Read the story.
The mayor’s office also said there would be a review of the NYPD’s nuisance abatement program, but later clarified it would be by the same agency that has been approving the filings. Read the story.
Carter said the council members were given a detailed presentation of the measures taken “to ensure that residents not involved in criminal activity are never summarily excluded from their homes and that they will always have the protections of the courts to ensure that they receive due process.”
The NYPD emphasizes that nuisance abatement cases are adjudicated separately from criminal cases, and that the two have no bearing on one another. Critics say therein lies the problem.
Criminal cases have more safeguards because the district attorney’s office independently vets allegations made by the police, and defendants have the right to an attorney. In nuisance abatement cases, the police prosecute their own allegations, and because there is no right to a court-appointed attorney in civil court, the vast majority of residential tenants end up fending for themselves.
The attorneys who spoke to the Daily News said it was routine practice within the Civil Enforcement Unit to simply “fill in the blanks” on nuisance abatement filings with documents forwarded to them by detectives without any further scrutiny.
“We have no idea what the reality is, we just go by the property voucher,” said one attorney, referring to a document from the property clerk’s office that lists items obtained during investigations or arrests.
“It’s not clear to me that Commissioner Bratton should be effectively running a private litigation department paid for by tax payer dollars without meaningful oversight or scrutiny,” Jeffries said. “The Law Department should reassume its role of prosecuting these abatement cases in a manner that has been consistent with the way separation between police and the Law Department has traditionally occurred.”
The attorneys also said there was a push to keep numbers up, and that they had their own incentive to maintain a high volume of cases because serving orders, which can extend past midnight, was the only way to make overtime. Payroll data on some attorneys assigned to nuisance abatement cases showed they earned an average of $24,000 in overtime during the 2013 fiscal year, or an average a 21% boost in pay.
NYPD officials did lay out modest changes at the February briefing: They said they are trying to make sure no more than three months passes between the last alleged offense and their request for closing orders, and would specify who the orders bar from homes, rather than asking for a blanket closure.
The NYPD maintains that officers serving notices have refrained from displacing small children and the elderly.
That wasn’t always the case.
Jameelah El-Shabazz, 47, was with her three children at her mother’s house in Harlem when the NYPD served her older son an order closing her Bronx apartment in advance of her first hearing on a nuisance abatement case. Because she wasn’t present, her whole family was shut out.
The NYPD claimed a confidential informant had bought drugs at the home twice, then narcotics officers found 45 paper cups of cocaine during a search.
Although two of her sons had previous run-ins with the police over drugs, the charges that sparked the nuisance abatement action had long been dismissed. Four months before the action was filed, a police lab test on the powder had came back negative. El-Shabazz said it was crushed eggshells used as part of a religious ritual.
It’s unclear if the NYPD lawyer who filed the complaint knew it contained a false statement or that the documents from the criminal investigation should have been sealed.
The attorneys who spoke to the Daily News said the Civil Enforcement Unit did not have a database to check the outcomes of criminal cases, and did not make a practice of reaching out to the prosecutors for this information, in order to ensure their targets had not already been exonerated. This step was not required because a nuisance abatement action can be brought without a conviction or even an arrest. The work of confidential informants and an officer’s allegations are enough.
“The more seamless line is, ‘O.J. Simpson got away with a criminal act but was still found liable in a civil matter,’” said one of the attorneys.
Perhaps as a result, it appears the unit sometimes accesses files it shouldn’t. the Daily News and ProPublica investigation identified nine nuisance abatement actions where sealed documents in criminal cases were filed as exhibits.
There could be many more. The investigation only tracked the outcomes of criminal cases where someone was barred from a home, and the date of dismissal was not given for 73 sealed cases because even that information is supposed to be confidential.
State law requires law enforcement agencies to seal records from dismissed criminal cases in order to protect the rights of defendants cleared of charges.
These records are not supposed to be used against the defendants in future cases, or to deprive them of any right.
But the Daily News’ sources said the NYPD doesn’t actually seal cases after they’ve been dismissed, let alone notify the Civil Enforcement Unit this has happened.
“They’re never sealed, that’s a myth,” said one attorney.
The NYCLU’s Chris Dunn, who won a settlement in a class action lawsuit against the NYPD over their violation of the sealing law, said the new findings that sealed criminal cases have been used to shut people out of their businesses and homes “provides a dramatic example of why we need an independent investigation into the NYPD’s handling of sealed records.”
The attorneys who have worked in the Civil Enforcement Unit told the Daily News they also never requested any corroborating evidence, such as videos or audio recordings of the confidential informant buys, and lab results of drug tests. An NYPD database of nuisance abatement cases obtained via a Freedom of Information request has a column for “labs ordered date,” but the Daily News found that column blank every time.
NYPD officials have repeatedly pointed out that nuisance abatement cases are subject to their own layer of judicial review by a civil court judge. In addition, they say the criminal court judge has already vetted the confidential informant claims used to secure the search warrants that led to the arrests.
But the Daily News and ProPublica identified more than 80 cases against businesses and residences that did not mention a search warrant, arrest or summons. And judges complained to the Daily News that the NYPD lawyers rarely could produce corroborating evidence of confidential informant buys.
The NYPD begins nearly every nuisance abatement action with a secret request to a civil court judge to close the location before the occupants have had a chance to defend themselves.
The Daily News/ ProPublica investigation found judges granted requests for closing orders 75% of the time for residences, although the rate varied widely by judge. NYPD officials have said the surprise orders prevent criminals from destroying evidence or planning to ambush the officers.
But the attorneys who spoke to the Daily News said the orders are also about leverage. “When you get a closing order, there’s way more pressure on the defendants to settle because they just want to get back in there. They’ll do anything, pay anything, to get back in there,” said one attorney.
While the requests for the emergency closures cite “ongoing” illegal activity, they routinely don’t include any evidence of that, even though the Daily News/ProPublica analysis found they come an average of six months after the last alleged incident for residences.
The head of the Civil Enforcement Unit, Robert Messner, said his attorneys “talk to” the officers to see if the location still poses a problem before filing a case. But the lawyers who spoke to the Daily News said there were no rules in place mandating that they check for ongoing illegal activity, and they often never did. They said they went forward even if they weren’t sure anyone was still living there.
“A lot of times we go to a place, a location, after you get an order signed. That place has been shut down and it’s been shut down for months. We just didn’t know about it,” said one attorney. (the Daily News/ProPublica investigation identified scores of cases where orders were served on places that court filings said had already been vacated.)
The city’s nuisance abatement law requires the police who serve the temporary closing order or temporary restraining order to take a photographic inventory of anything used for illegal activity at the location, and to promptly return that inventory to the judge who approved the order. But the attorneys interviewed by the Daily News said they weren’t even aware of this requirement.
And a judge who has signed several such orders was also unaware of the rule and told the Daily News that “never once” have such inventories been provided.
The Daily News and ProPublica did not come across such inventories in the 1,162 cases it reviewed.
As a result of the Daily News/ ProPublica findings, Deputy Chief Administrative Judge Fern Fisher sent an advisory notice to judges on Feb. 1 recommending limiting the granting of requests for closing orders when the evidence is stale or “based on statements with multiple layers of hearsay and with unidentified confidential informants.”
The two attorneys who spoke to the Daily News said the detective making the allegations isn’t always present when affidavits in their names are written up. They said attorneys use the property clerk vouchers and any other documents to fill in the blanks on “templates” from previous nuisance abatement filings.
In fact, one civil enforcement attorney, Evan Gluck, admitted during a 2011 deposition that he falsely notarized affidavits in up to 20 cases by allowing the detectives to sign them while not in his presence. Gluck said his supervisor was aware of this in at least two instances. They were both granted immunity in that case by a judge as “prosecutors performing duties related to their prosecutorial function,” and still handle nuisance abatement cases for the NYPD.
Gluck said in his deposition that he received no official training on the cases and was only a few years out of law school when he started doing them. He said he was given an “outdated” internal memorandum on nuisance abatement to peruse in his free time, sample cases that had already been filed to use as templates, and “verbal directives” from his boss on cases he was working on.
The two attorneys who spoke to the Daily News also said they didn’t receive a manual or formal training on how to properly apply the nuisance abatement law.
The NYPD’s Patrol Guide, which contains detailed rules that officers must follow when they carry out their duties, also has no section on nuisance abatement cases, even though there is a nine-page section on the Padlock Law, which is a similar statute with far stricter requirements that Messner estimated the department hasn’t used for 15 years.
Sarah Ryley is the data projects editor and an investigative reporter at the New York Daily News. You can email her at firstname.lastname@example.org
For more reporting like this, read The NYPD Is Kicking People Out of Their Homes, Even If They Haven’t Committed a Crime.