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Lawsuit to Seek Rollback of NYPD’s Controversial Nuisance Abatement Efforts

A legal move in federal court will ask for class action status to protect renters and business owners from alleged unconstitutional police enforcement.

Three tenants are banding together to challenge the New York Police Department’s use of the city’s controversial nuisance abatement law, asserting the police routinely move to oust people from their homes and businesses while denying them basic legal rights.

The Institute for Justice, a libertarian nonprofit organization based in Arlington, Virginia, and acting on behalf of the three tenants, is expected to file suit in federal court on Wednesday. The suit will seek to have all existing, “coercively obtained” settlements with tenants across the city declared unconstitutional “and therefore unenforceable.”

The NYPD has called the decades-old law a key component of its ability to close down locations that have allegedly become hubs of illegal activity, such as unruly nightclubs, drug locations, brothels, and more recently, bodegas selling synthetic marijuana.

However, an investigation by the Daily News and ProPublica — analyzing more than 1,100 cases filed during 2013 and the first half of 2014 - found police also frequently used the civil actions against households where one or two family members had faced drug charges that were ultimately dismissed, as well as bodegas caught selling beer to under-age undercover auxiliary officers. The targets were almost exclusively located in black and Hispanic neighborhoods.

In order to settle their nuisance abatement cases, two of the plaintiffs agreed to bar specific family members from their apartments forever, even though some of those relatives were never prosecuted for the drug activity alleged in the nuisance complaints. The third plaintiff, a laundromat owner in Inwood named Sung Cho, had to agree police could conduct warrantless searches and review his security footage at any time.

“It’s not about money. It’s about doing what’s right,” said David Diaz, one of the three tenants.

A representative for the city’s Law Department, which has not yet seen the new filing, called the nuisance abatements law “a useful tool for the police department, and we are continually reviewing and improving our protocols in this area. The City is committed to ensuring due process and protecting individuals who are not involved in criminal activity."

In Cho’s case, the police claimed in court filings that Cho’s business was facilitating an illegal fencing operation because an undercover detective sold “stolen” electronics to people hanging out there on two occasions in 2013. None of Cho’s employees were accused of a crime.

“I couldn’t really defend myself, that’s why we had to settle prior to going to the judge,” said Cho, who worked as a computer consultant before opening the laundromat. “Just because it happened nearby, under the law I am guilty, and that is not right."

As was routine in the nuisance settlements examined by the Daily News and ProPublica, Cho agreed to give up his right to a hearing before being fined and agreeing to be shut down if police accuse anybody at his shop of breaking the law in the future. He also must allow the police to search his business and access his security footage at any time. The terms continue in perpetuity, and pass on to any new buyer or partner in Cho’s business, which he said makes it essentially worthless.

The suit intends to nullify any provisions of the law and its enforcement that strip people who were not convicted of a crime of their right to live with family members, to be free from warrantless searches, and for defendants to have a hearing before being penalized in the future.

“We’re prepared to take this case all the way to the Supreme Court,” said Robert Johnson, the lead attorney on the case.

The Law Institute won a recent partial settlement in a case against the city of Philadelphia challenging the constitutionality of its civil forfeiture program. The city agreed to discontinue many of the same practices at issue in the New York case.

Johnson said the new case seeks to have the courts grant the plaintiffs class action status and recognize that renters are entitled to the same constitutional protections as property owners. The suit will seek a token $10 in monetary damages for each named plaintiff.

Diaz said he got involved with the suit “because I don’t want this to happen to nobody else.”

Diaz is a 40-year-old single father who works as a custodian at a synagogue. Police searched his East Tremont apartment in the Bronx in 2013, the morning after a family memorial party for his late mother. They found two rocks of cocaine, a scale, a straw, razor blades and three plates covered with cocaine residue in the bedrooms where two relatives were staying, records show.

Police arrested all seven adults in the apartment at the time, but only one person was convicted, records show.

Four months after the arrests, police served Diaz with what is known as a closing order while the nuisance case was being decided. He said they allowed him to stay temporarily because he has a small child. When he showed up at Bronx Supreme Court for his first appearance, he said an NYPD attorney, who he mistook for a court-appointed lawyer, pulled him in the hallway and convinced him “fighting the case is not worth it because I could be homeless.” So Diaz settled, agreeing that five of the people who were arrested would never come to his house again.

“It’s basically like taking your family away from you,” Diaz said.

The third plaintiff, Jameelah El-Shabazz, had to agree to exclude her son from her home forever in order to avoid eviction.

The NYPD had said in nuisance filings that narcotics detectives seized 45 cups of cocaine from a bedroom during a 2011 search. But a laboratory test of the powder came back negative for narcotics — El-Shabazz said it was crushed eggshells that she uses in a spiritual ritual — and nobody was prosecuted in the criminal case.

Four months later, she was served with the nuisance case and an order forcing her from her apartment while the case was being decided. El-Shabazz, who had four of her children living in her apartment at the time, said she didn’t realize the settlement she ultimately signed meant her son Akin Shakoor, who is now 27 and has had several run-ins with the police, could never return.

“I’m not going to make my son homeless because of the false accusations,” she said.

The Daily News and ProPublica found that fewer than half of those who were excluded from apartments or gave up leases as part of nuisance settlement agreements were convicted in the underlying criminal investigation. Many weren’t even prosecuted.

“The mere fact that someone’s been arrested is just not a reason why they should be kicked out of an apartment,” Johnson said.

All three plaintiffs were featured in series by the Daily News and ProPublica that first published in February.

If the judge approves class action status and the plaintiffs win, the outcome could affect “hundreds or even thousands” of business owners and residents who have signed settlements in nuisance abatement cases, Johnson said.

This would be the second federal lawsuit filed in the wake of the reports by the Daily News and ProPublica.

The NYPD Is Kicking People Out of Their Homes, Even If They Haven’t Committed a Crime

And it’s happening almost exclusively in minority neighborhoods. Read the story.

Austria Bueno, a housekeeper who lives in the Queensbridge Houses, filed the first case. Her family was shut out of their home for four days in December 2015 after the NYPD taped a closing order to their door based on 10-month-old evidence of drug sales, records show. There’s no indication anybody from the NYPD contacted the city housing authority to verify whether the alleged drug dealers still lived in the apartment, and as it turned out, they had moved eight months prior to the order being served.

Immediately following the report by the Daily News and ProPublica, Mayor Bill de Blasio said at a press conference, “We absolutely believe in due process and every one, every individual’s right to a fair hearing, a fair adjudication of their situation.”

But city attorney Nicholas Ciappetta argued in a motion filed last month that Bueno “was not entitled to any additional process” before being kicked out of her apartment.

He wrote that the fact a judge had to review the NYPD’s evidence prior to issuing a closing order was sufficient, adding that the required court appearance three business days after the order is served “provides a robust opportunity to address any alleged error in the granting of the temporary closing order.”

A recent analysis of cases by the Daily News and ProPublica indicates that the NYPD has amended its practice of seeking complete closures of homes while the nuisance case is being decided.

“The NYPD is continuing to use the nuisance abatement law to address repeated criminal activities at residential and commercial locations throughout the City,” Police Commissioner James P. O’Neill said. “This is one of many important tools we use as part of precision policing to continue to drive down crime and protect the public.”

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