The morning of May 4, 2011, Jameelah El-Shabazz watched out the window of her Bronx apartment as a team of police officers fanned across the rooftop of Banana Kelly High School. The 43-year-old mother of five said she didn’t think much of the scene — drug raids were common in her neighborhood.
As she did most mornings, El-Shabazz said she went to her bedroom to feed her newborn son and to worship before a shrine of candles and carvings arranged atop her wardrobe. Her most treasured object was a wooden tray her father had brought her from Nigeria. A deity of the Ifa religion, which she practices as a high priestess, was carved on its surface and covered in a residue of finely crushed eggshells. El-Shabazz used the substance, known in her faith as efun powder, to cleanse the shrine. She took fresh clumps of the powder from a cup and began to break it up in her hands.
That’s when the narcotics officers kicked in the door.
Her baby shrieked as the gun-wielding officers tore apart rooms looking for PCP, which an anonymous informant had claimed was being sold from the apartment. They ordered everyone to lie on the ground, then turned to her eldest son, Akin Shakoor, who along with another son was having frequent run-ins with police. El-Shabazz said the officers told Shakoor if he didn’t give up the drugs, “they would take all of my children away from me and make sure that I was put out of my apartment.”
As evidence, police seized 45 paper cups of the eggshell powder, the sacred wooden tray, and a small amount of marijuana. They arrested El-Shabazz, her teenaged sister Najah El-Shabazz, and Shakoor, then 21, and took them outside past the handcuffed residents of four other apartments that were raided that morning.
Najah was released, court filings say, but Jameelah El-Shabazz and Shakoor sat in cells on Rikers Island for the next week awaiting the results of police lab tests. Finally, the results confirmed what she had told the officers all along: the wooden tray and the 45 paper cups of powder were drug-free. Jameelah El-Shabazz and Shakoor were released from Rikers and fully exonerated.
But El-Shabazz’s battle with New York’s legal system was only beginning. That September, another of her sons called to say the police were back, this time with a lawyer and a court order to seal the Bronx apartment. Her entire family had to leave — immediately.
El-Shabazz was facing a nuisance abatement action, a little-known type of lawsuit that gives the city the power to shut down places it claims are being used for illegal purposes. The case against her was based on the same drug allegations that had been dismissed in May. Incredibly, the filing, signed by a New York Police Department attorney, stated: “recovered during the execution of the search warrant were forty-five (45) paper cups of cocaine.”
The nuisance abatement law was created in the 1970’s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences.
The process has remarkably few protections for people facing the loss of their homes.
Three-quarters of the cases begin with secret court orders that lock residents out until the case is resolved. The police need a judge’s signoff, but residents aren’t notified and thus have no chance to tell their side of the story until they’ve already been locked out for days. And because these are civil actions, residents also have no right to an attorney.
Perhaps most fundamentally, residents can be permanently barred from their homes without being convicted or even charged with a crime.
A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her.
In partnership with ProPublica, the Daily News reviewed 516 residential nuisance abatement actions filed in the Supreme Courts from Jan. 1, 2013 through June 30, 2014. Our analysis also reviewed the outcomes of the underlying criminal cases against hundreds of people who were banned from homes as a result of these actions.
- 173 of the people who gave up their leases or were banned from homes were not convicted of a crime, including 44 people who appear to have faced no criminal prosecution whatsoever.
- Overall, tenants and homeowners lost or had already left homes in three-quarters of the 337 cases for which the Daily News and ProPublica were able to determine the outcome. The other cases were either withdrawn without explanation, were missing settlements, or are still active.
- In at least 74 cases, residents agreed to warrantless searches of their homes, sometimes in perpetuity, as one of the conditions of being allowed back in. Others agreed to automatically forfeit their leases if they were merely accused of wrongdoing in the future.
- The toll of nuisance abatement actions falls almost exclusively on minorities, our analysis showed. Over 18 months, nine of 10 homes subjected to such actions were in minority communities. We identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white.
Runa Rajagopal of the Bronx Defenders, who leads a division that represents people in the civil courts, called the practice a “collective punishment” on the entire family of those accused of a crime, “used by the NYPD to exert power and control largely over communities of color.”
The NYPD declined to answer any questions about specific cases.
Officials emphasized that because these are civil cases, they’re handled separately from criminal cases and thus have lower standards of proof.
“The law does not require criminal conviction, does not require [a] particular disposition of a criminal case, does not even require an arrest of anyone,” said Lawrence Byrne, the NYPD’s Deputy Commissioner of Legal Matters in an interview with the Daily News last year.
Assistant Commissioner Robert Messner, who heads the NYPD’s Civil Enforcement Unit, concurred, saying, “You have to remember, it’s an action about a place. It’s not about people.”
The department’s chief spokesman, Stephen Davis, said in a statement that the suits are intended to prevent crimes from reoccurring at ‘repeat offender’ locations. “Each nuisance abatement order and settlement is signed-off by a judge.” Davis added.
Though a nuisance abatement threatened to force El-Shabazz out of her home, she doesn’t appear to have been the intended target. Two of El-Shabazz’s sons were already known to police when her apartment was raided in 2011.
Akin Shakoor had been arrested at the building at least twice before, in 2009, for misdemeanor possession of drugs. He pleaded both cases down to non-criminal violations. Her other son, Jehadh Shakoor, was arrested in the neighborhood with marijuana in 2008, and with PCP in 2009, and convicted of misdemeanor possession charges. (El-Shabazz said the officers also often harassed a third son, who was an honor student in high school and is now in college.)
The narcotics officer behind nuisance abatement cases against El-Shabazz and others, Detective Peter Valentin, has his own history. The Daily News earlier identified him as the most-sued officer on the NYPD’s 35,000-member force. Valentin was put on desk duty in 2014 for allegedly fabricating buys from confidential informants.
The NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones.
This decades-old approach — which has introduced large numbers of black and Hispanic New Yorkers to the criminal justice system through stop-and-frisks, summonses and misdemeanor arrests — has touched off waves of protests in recent years.
Though little heard of, nuisance abatement actions have long been a key component of the strategy. William Bratton, fresh into his first tenure as the city’s top law enforcement official, hailed such actions in a 1995 white paper on quality-of-life policing as “probably the most powerful civil tool available to the police,” allowing officers to “sweep down on a location and close it without warning.”
Since Bratton wrote those words, the number of nuisance abatement actions filed each year has quintupled.
Bratton was hired back as police commissioner in 2014. While he has significantly reformed other aspects of quality-of-life policing, the department does not appear to have adjusted its policies when it comes to nuisance abatement actions.
Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.
“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”
In most other cities, officials can’t initiate a nuisance abatement action unless they’ve given landlords the opportunity to solve problems first. Authorities can only restrict access to a home after a court process that involves all parties.
But in New York, the NYPD begins nearly every nuisance abatement action by making an emergency appeal to a civil court judge without the landlord or tenant present, alleging the dangers a residence poses. Affidavits detailing three instances of a particular crime, such as drug dealing or gambling, in a one-year period are enough for a judge to authorize an action.
The allegations can be based entirely on the work of confidential informants or undercover officers and need not have led to arrests. The Daily News and ProPublica identified 17 nuisance abatement actions against residences and 64 against businesses in which no arrests were documented.
When they file a case, the police always ask the judge for permission to lock out the occupants of the residence until the case is resolved. These requests for what’s known as “temporary closing orders” state that the location is being used in an “ongoing illegal manner,” and that the “public health, safety and welfare require immediate abatement of the public nuisance.”
However, the NYPD’s court filings routinely do not describe the alleged “ongoing” illegal activity that would justify immediately throwing people out of their homes. Instead, the Daily News and ProPublica analysis found, police filings describe purported offenses that occurred, on average, at least five months earlier for businesses and six months earlier for residences.
Judge Fern Fisher, the deputy chief administrative judge for the city’s courts, expressed concern. “If it’s six months old, then it’s not all that much of an emergency that you can’t wait three or four days for the (other) party to come in and tell their side of the story,” she said.
Prompted by the Daily News and ProPublica’s findings, Fisher issued an advisory notice to judges on Feb. 1 that recommended limiting the granting of temporary closing orders of homes before the tenant or homeowner has come to court. The notice also cautioned against granting such orders when the evidence of alleged illegal activity is old, or based on “statements with multiple layers of hearsay” and the word of confidential informants.
The Daily News and ProPublica found temporary closing orders were granted in 75 percent of the residential cases examined. Some judges granted the requests nearly every time. Queens Judge Orin Kitzes signed them in 235 out of 236 cases that came before him. Others, such as Manhattan Judge Michael Stallman, routinely crossed out that portion of applications. Stallman said he does this because the NYPD’s attorneys never have any evidence of ongoing illegal activity or information about the outcomes of the underlying criminal cases.
“I can’t remember the last time that I’ve ever had information about the disposition of a criminal case,” he said. “I’ve repeatedly indicated that it’s difficult for me to evaluate a civil case where I don’t even know whether the criminal case is pending.”
NYPD’s Messner said his lawyers “talk to” the precinct officers to confirm the location still poses a problem, but don’t include this information in court filings for the sake of efficiency.
“The judges don’t want to read tomes,” he said. “We could do 100 cases a year instead of 800 cases a year, with, you know, tremendous levels of detail. But we wouldn’t end up with a better product. We’d just end up helping a lot less people.”
The NYPD’s Byrne said when officers serve temporary closing orders, they can use their discretion to determine if certain family members can stay.
By law, people affected by temporary closing orders have a right to a court appearance within three business days. But they could wait as long as five days if their court date would otherwise fall on a weekend. At the courthouse, the NYPD’s attorney usually offers to settle the case without going to trial — often by requiring tenants to bar specific people from their homes or to give up their leases. Then the closing order is lifted.
But if tenants decide to fight the case, they may not be allowed to go home until the case is resolved. Though cases rarely go to trial, settlement negotiations can take weeks.
Luis Rivera, 58, was shut out of his apartment in the Bronx for nearly a month in 2013 while he fought his case. It alleged the requisite three violations: Five months earlier, police said a confidential informant had bought heroin at the apartment on two occasions. Shortly thereafter, during a raid on the apartment, police said they found seven small paper envelopes of white powder, a marijuana cigarette and two gravity knives. They arrested Rivera, along with two other men who were staying with him.
Rivera was described by people who knew him as having significant mental and physical impairments. One woman, who asked not to be named, said she let Rivera sleep on a chair in her studio apartment after the nuisance abatement action left him homeless. She said the officers should have known he was too sick for the streets.
“He was not doing good at all,” she said. “He had cancer; he was on the transplant list. You could tell he was very sick. There were times when he didn’t remember what was what. He would shit on himself and everything.”
In court filings, Rivera said he did not understand what was happening when the police arrested him a second time as they served him with the nuisance abatement action. When he was released, he simply went home, then was arrested a third time for violating a temporary closing order.
“My understanding was that I could go back to my apartment because I was given my keys. I was handed some papers but I am not able to read or understand them on my own,” he said in an affidavit filed through his attorney, Rajagopal. “I am still very confused as to how or why the police were able to evict me from my home without a hearing or trial.”
The criminal charges against Rivera and the other two men were eventually dismissed, and Rivera was allowed back in his apartment after signing a settlement with strict terms limiting who could visit.
He died last September.
The nuisance abatement law arose from New York’s downward spiral during the 1970s. At the time, Sidney Baumgarten, a top aide to Mayor Abe Beame, was leading a campaign to rid Times Square of streetwalkers, pimps and peep shows. Conventional law enforcement tactics had been as effective as a game of whack-a-mole. Arrest a petty lawbreaker; watch another one pop up.
Baumgarten, who gamely sported a big white button that read “Vice President in Charge of Vice,” searched for more creative solutions. Using the city’s zoning and public health laws, he unleashed code inspectors on seedy establishments. After enough violations and arrests, he would file suit in civil court to shut down the businesses for a year.
But the process was cumbersome. The city prevailed only after giving notice to tenants and winning protracted court battles. With advanced warning, proprietors of brothels had enough time to move to new locations. Even the fleabag Belmore Hotel, where a teen prostitute was strangled to death with her gold chain necklace in 1975, continued business as usual for a year until the city won its case.
Baumgarten commissioned the drafting of the nuisance abatement law in the summer of 1976 to address these shortcomings. The law defined 12 categories of violations — including prostitution, illegal gambling and drug sales — that could trigger enforcement actions. Most notably, the city could surprise businesses with temporary closing orders secured in secret court hearings. During the closure, police could go room-to-room inventorying people and paraphernalia.
After the law was enacted in 1977, the city put it to swift use. Within five years, the mayor’s office shuttered 100 sex businesses in Midtown, reducing the number by nearly half, according to city archives. But some officials felt the law was being used too narrowly, focusing on only one problem in one area at a time when many neighborhoods were engulfed in crime.
In 1991, during Raymond Kelly’s first tenure as police commissioner, the city allowed the NYPD to initiate nuisance abatement actions with its own lawyers. The move was part of the police department’s Civil Enforcement Initiative pilot project, led by Messner, which focused on a few precincts outside the city center. The initiative was widely credited with bringing down crime and was soon expanded citywide.
In the early 1980s, documents show city officials believed they needed criminal convictions – not merely accusations or arrests — before initiating nuisance abatement actions. But by the time the NYPD started bringing its own cases, the courts had interpreted the statute’s wording to mean that wasn’t necessary.
The NYPD has since dramatically expanded the law’s reach, wielding it against drug dealers, underground gambling dens, illegal chop shops, fencing operations, after-hours clubs, counterfeit handbag hawkers, and bodegas selling alcohol and cigarettes to minors. Last year, the City Council passed legislation that added selling K2, a highly addictive form of synthetic marijuana, to the list of offenses that could lead to nuisance abatement actions.
The number of nuisance abatement cases filed by the NYPD grew from 214 in 1994 to 1,082 in 2013. The department would not disclose the number of cases it filed in 2014 and 2015, but incomplete data obtained via a Freedom of Information request indicates the unit’s caseload has remained steady.
Messner said he was pleased that his staff’s caseload increased even as the department was cut from 65 to 55 people. “I’m an astronomically good manager,” he said. “This is an efficient way to address crime and provide police services.”
Over the 18-month period examined by the Daily News and ProPublica, 44 percent of the cases took aim at residences.
Messner said this reflects a shift in the drug trade since the early 1990s. “In those days, you know, all the drugs were being sold out of storefronts,” he said. “When they moved into apartments, it caused a problem.” Messner said dealers now use their children, parents and grandparents as “human shields.”
The nuisance abatement law was created to clean up rough neighborhoods and, indeed, some who have lived in buildings with addicts nodded out in stairwells, fights in the hallways, and crews of lookouts stationed by the door, said it has been a blessing.
Marychel Mendez, a young woman who lives in a seven-unit apartment building in Corona, Queens, recalled the stream of unsavory people her neighbor, a 34-year-old woman named Asia Short, allowed into her home.
“It was so scary because sometimes there were people sitting there,” Mendez recalled, gesturing toward a short set of steps that led to their shared landing. “Or sometimes there were drugs right on the floor.”
Mendez said Short’s three children didn’t always make it to school and would cry when a noxious smell, which she described as “like Clorox,” filled the hallway. So Mendez said her mother complained to the landlord and the police. Her mother even let detectives use her peephole to photograph the people who passed through Short’s apartment.
Not long after a raid of Short’s home in 2012 in which the police found five plastic twists of crack, more than 100 pills, Ziploc bags used to package drugs, and bullet cartridges, Short and the crying children were gone. There were no more drugs scattered in the hallway. No more addicts on the steps. Mendez and her family felt safe.
But Short and her family didn’t disappear into thin air. When the police put her out with a bag of clothes and toiletries that night, she said she had to leave her cat behind because she didn’t have a pet carrier, or any idea of where she was going. At the courthouse, she said the NYPD’s attorney, who was standing out in the hallway with her landlord, told her the only way she would be able to get back in her apartment was if she agreed to move out.
“They was like, ‘We’re not going to let you in for the cat. We’re not going to let you in for clothes. We’re going to let you in when you sign this agreement.” So she signed.
The criminal charges against Short were ultimately dismissed. A friend who was arrested at the house with her, Jonathan Donaldson, took responsibility for the drugs and was sentenced to a year and a half in prison. Meanwhile, during the four months between when the nuisance abatement case was filed and when it was settled, Short said her cat died of starvation.
Today, she never seems to stay at any one place for too long. Sometimes she sleeps on a relative’s couch, sometimes on the subway or at a homeless shelter. The chaos of her life makes it difficult to hold down a job. “Right now, I still have nowhere to stay,” Short said, sitting on the stoop of a tattered brownstone in Bedford-Stuyvesant last August. At her feet sat a crinkled black plastic bag she was using as a purse.
“You hang out until 4 a.m., ride the train until noon, find a house to shower at, and then on to the next place,” she said wearily.
For her, the apartment provided a better life she just couldn’t hang onto. “I was in the shelter for four and a half years, then I get that apartment,” she said. Her time on the streets made her generous with friends who needed a place to sleep or shower. “Jonathan didn’t even live with me,” she added before trailing off.
Short said her three kids are living at a homeless shelter in the Bronx with their father.
The Daily News and ProPublica spoke to five other people who said they spent time living on the streets or in homeless shelters after being subjected to nuisance abatement actions, and many more who were left scrambling to find friends or relatives to take them in.
Juan Vadi, a 53-year-old recovering addict, pleaded guilty to misdemeanor drug possession and was fined $500 after police turned up a Ziploc bag of crack, two pipes and a plate with crack residue, and a marijuana grinder during a search of his parents’ Jamaica, Queens apartment.
Eight months later, police issued a nuisance abatement action detailing the arrest and claiming Vadi was using the apartment to sell crack. He insisted he would never sell drugs from the family home, where multiple generations share four bedrooms, and said he believes an acquaintance who always seemed to get arrested but never did any time fabricated allegations about buying drugs there. Nonetheless, in order to protect his family members from losing their home, Vadi agreed never to sleep there again for the rest of his life.
Now he sleeps in a waist-high cubicle with three other men at a shelter on the Bowery in Manhattan. He said he can’t afford an apartment on his disability payments alone until he can get rental assistance, which could take years. Every day, he said he takes the subway an hour and a half to Queens to spend time with his family and help care for his sick parents.
“If you do a real bad act — major drugs, guns — I can see them doing this. But for a misdemeanor fine? That’s all it was,” he said.
Few landlords would comment on the record about nuisance abatement actions, but some acknowledged they were grateful for the help with removing nightmare tenants in a city that otherwise makes it extremely difficult to do so.
Wavecrest Management owns a building in the Longwood neighborhood of the Bronx where three people were excluded after police said they were using an apartment to sell marijuana. “It helps us keep the building safe for everybody,” said Susan Camerata, a property manager with Wavecrest, “We were grateful to get this information because we were stymied, we had no other way to enact change.”
NYPD’s Messner said compassion for those who have been made homeless by a nuisance abatement action is misplaced.
“I’m protecting the kid who wants to go to school and shouldn’t have to walk past the drug dealer’s door every time. I’m protecting that kid’s grandmother,” he said. “I’m not as concerned about the drug dealer. If the guy ends up in a homeless shelter, yes, I’m sorry he ended up in a homeless shelter. But if that’s what it takes so that a whole generation of kids can grow up and whose parents can’t afford to send them to fancy schools, if that’s what it takes, I’m okay with it.”
Because nuisance abatement actions are civil proceedings, defendants have no right to an attorney. The tenants and homeowners interviewed by the Daily News and ProPublica were elderly, ailing, poor or unable to speak English and, thus, ill-equipped to navigate the legal maze on their own.
The vast majority of residential tenants and homeowners represent themselves, often ineffectively, the Daily News and ProPublica found. Just 22 percent of those without lawyers reached settlements with police that allowed them to keep their apartments without barring anyone, versus 43 percent of tenants with lawyers.
The settlements often impose provisions that critics say erode tenants’ constitutional rights. The Daily News and ProPublica identified 74 cases in which tenants or homeowners agreed to allow warrantless searches in order to get back into their homes. They routinely waive their right to sue, and promise to vacate the home immediately and surrender their lease without going before a judge if accused of wrongdoing in the future.
Sometimes judges are not even present in the courtroom to ensure tenants are fully informed of their rights and understand what they are signing when such deals are struck. The Daily News and ProPublica interviewed several people who said they were left to fend for themselves against the NYPD’s attorney in a hallway while a judge was nowhere to be seen.
Carmen Otero, a grandmother from Puerto Rico who faced a nuisance abatement action in 2013 after police found 10 strips of suboxone in her apartment, claims she wasn’t provided a Spanish-speaking interpreter when she showed up at Bronx Supreme Court and was led into a room by the NYPD’s attorney.
“They didn’t talk Spanish. They were just pressuring me to sign,” said the 75-year-old woman, whose fuchsia pink nightgown exposed a scar from open-heart surgery. “I didn’t want to sign, but I did because they were insisting … I thought if I didn’t sign it I would go to prison.”
Otero signed a settlement that says the NYPD can make unannounced inspections for a year, and if anyone besides her and her son are found in the apartment during the first six months, she will immediately surrender her lease. The Bronx Supreme Court was unable to verify whether Otero was provided an interpreter. But at least one other settlement involving a Spanish-speaking tenant included an “affidavit of translation.” Otero’s did not.
The Daily News witnessed such scenarios playing out in Judge Kitzes’ courtroom in Queens during court dates for four nuisance abatement cases.
At one hearing, Lillie Capers, a 90-year-old woman so frail she could barely speak above a whisper, arrived at court to discuss whether she could remain in the Jamaica, Queens home her family has owned since the 1960’s. An undercover officer had bought heroin and cocaine from her adult son, Rodney Capers, several times, and when police searched the house, they found a crack rock, two pipes and a straw with crack residue, and other drug paraphernalia.
Rodney Capers was already living in a treatment facility after pleading guilty to felony drug possession by the time the police filed the nuisance abatement action against Lillie Capers. Kitzes never entered the room on the day of her hearing. Instead, the NYPD attorney invited her and her daughter-in-law into the hallway to discuss a settlement, which they agreed to sign.
When Lillie Capers and her daughter-in-law returned to the courtroom, the Daily News asked if they had a copy of the stipulation — the technical term for the settlement. They didn’t know what that was. When the Daily News asked if they understood the agreement meant that if Rodney were found living at Lillie Capers’ home any time within the next year, the police could immediately move to close it down for a year, they said no. When asked if they understood the agreement meant the family could not sue the city, they said no.
Then the judge’s law secretary, Cassandra Johnson, called them to a long wooden table in front of the judge’s bench, along with the NYPD attorney. Capers was concerned because her son, 46 years old and with a lengthy rap sheet, didn’t have a job or a place to stay. Johnson explained that the rules were strict on that. “The effectiveness is from the date you’re signing, for a full year,” she said. Capers said she might not be able to stand up to her son if he resisted. “In order for him to help himself, you have to stay strong,” her daughter-in-law urged. “You can’t afford to lose your house for Rodney.”
Capers nodded feebly and signed. Then the judge’s clerk, John Sullivan, carried the papers behind a door, where Kitzes’ chambers are located. Sullivan emerged 10 minutes later and gave them a copy.
Sullivan was asked if someone always went over the agreements between tenants and the NYPD before they were signed, like Johnson had done. “Not always. If they can work it out amongst themselves, why would the court need to get involved?” he said. Kitzes, who retired in December, declined an interview request.
At her home months later, Capers told the Daily News barring her son was for the best. Since he’s been in the treatment program, he has a job and looks healthy, she said.
Some of those facing nuisance abatement actions told the Daily News and ProPublica they thought the NYPD attorney was actually there to give them advice, unaware they weren’t entitled to free counsel and that the attorney actually represented the other side.
“The attorneys that the court appointed to me ended up saying the risk that I’m taking if I fight is too big of a risk,” said David Diaz, a custodian at a synagogue who faced losing his apartment in the Bronx after cops found a small amount of cocaine, along with a scale, straw, razor blades and plate with cocaine residue, in bedrooms where two relatives, aged 19 and 23 at the time, slept.
Diaz said the attorney led him into the hallway, where Diaz tried to argue the only people who should be excluded from his apartment were the two guys who had the drugs in their room. The rest were just sleeping over from a family BBQ the night before. But he ended up having to ban his two brothers and another woman, who were also arrested that day but had their charges dismissed.
“He [the lawyer] said I could try to fight it but I’m risking losing the whole apartment, and he said, ‘With your daughter and everything, that’s a big risk,’” Diaz recalled. “And I was like, ‘You know what, you’re right.’ So I just agreed to it.”
When the Daily News informed Diaz that civil courts don’t appoint attorneys for defendants, he said, “I don’t know if he was representing me or if he was representing the city, but it was a lawyer that I was talking to.”
Judge Fisher, the deputy chief administrative judge, advised judges in her Feb. 1 notice that they should speak to all parties in open court, and ensure that defendants who do not have attorneys fully understand any agreement they are signing.
Miguel Gomez, Otero’s son, said it was unfair that his mother had to face off against the NYPD without an interpreter.
“They took advantage of her, that’s what I see,” Gomez fumed. “They took all her rights away right there. It’s like candy from a baby. What’s a baby going to do? She can’t defend herself.”
Jameelah El-Shabazz didn’t lose her apartment in the Longwood section of the Bronx as a result of the nuisance abatement action filed against her in September 2011.
Two days after she was shut out of her home, she reached a settlement with the NYPD. She agreed to bar her oldest son, Akin Shakoor, for life — even though the district attorney had dropped the criminal charges against them four months earlier, and court filings say they received city payouts totaling $37,500 stemming from the raid.
During settlement negotiations in the nuisance abatement case, the NYPD’s attorney said he could still use evidence against Shakoor that a confidential informant had bought drugs from the home, El-Shabazz’s attorney said. To challenge that, the family would have had to demand a hearing before a judge — and to wait to get back into the apartment.
“If you did that they probably couldn’t produce the witnesses or anything like that,” said Jonathan Levy, her attorney. “But in the meantime you’re locked out of your house … and that’s just incredible leverage.”
Even after agreeing to bar her son, El-Shabazz had to fight a separate eviction case in Housing Court initiated by the Bronx District Attorney’s Office, and an administrative hearing over her Section 8 benefits, both prompted by the same dismissed drug allegations. (The Daily News identified multiple instances where tenants had to defend their homes against multiple government-initiated cases.)
El-Shabazz remains defiant about the nuisance abatement case, insisting she would never banish her son from her home even though it’s clearly written in the agreement she signed. “Never am I going to tell my son that I’m still raising that he can’t come to my house,” she said. “Who does that? I’m not doing that.”
Levy said it’s possible the experience was so traumatic she didn’t fully grasp what happened.
“Getting locked out of your home without warning is as traumatic as losing a job, witnessing a shooting, being robbed, any number of things that violate your sense of personal integrity and safety,” Levy said. “In general, I think it’s one of the most pernicious things about using this law against residential properties as opposed to commercial.”’
Correction, Feb. 12, 2016: A chart in this story, showing judges' approvals of temporary closing orders, was incorrectly labeled. The chart shows the percent of times judges approved such requests for both businesses and residences, not just for residents. Further, the judges’ combined rate of approval is 70 percent and not 75 percent.
If you have information about nuisance abatement actions in New York City or elsewhere, please email firstname.lastname@example.org.
Additional reporting and research by Barry Paddock of the New York Daily News; and Edwin Torres, Christine Lee, Pia Dangelmayer and Andrea Hilbert, special to ProPublica. Production by Hannah Birch, Rob Weychert, and David Sleight.