Series: Nuisance Abatement The NYPD’s Aggressive Enforcement of a Little-known Law

The New York City Council is set to introduce legislation that would significantly curtail the police department’s practice of displacing families and closing businesses over alleged criminal activity before the accused have had their day in court.

The Council’s action comes months after a New York Daily News and ProPublica investigation found that the police department regularly moved against households and businesses over low-level drug and alcohol charges, many of which were ultimately dismissed. In order to avoid permanent eviction or sanctions, tenants and business owners often agreed to onerous restrictions — such as the exclusion of specific family members for life, steep fines and unannounced warrantless searches. The police started nearly every case with a request to close the location before the accused were afforded a chance to plead their case before a judge.

The targets were almost exclusively located in black and Hispanic neighborhoods.

City Council Speaker Melissa Mark-Viverito said the police’s enforcement powers — authorized under the city’s nuisance abatement law — were meant to address only “extreme situations.” She said the proposed legislation would toughen the requirements for bringing cases over drug and alcohol offenses, and end the department’s ability to seek sanctions against households or businesses without a judge hearing from the accused.

"The laws are currently overly broad,” Mark-Viverito said.

The city originally enacted the nuisance abatement law in 1977 to combat the sex industry in Times Square during its heyday as a red light district. The police have since used the civil mechanism to fight many other vices, including violent bars and clubs, drug trafficking and illegal gambling. Former Police Commissioner William Bratton once called nuisance abatement law “probably the most powerful civil tool available,” to the authorities, allowing officers to “sweep down on a location and close it without warning.”

Mark-Viverito said she believed she had enough support in the Council to pass the legislation and overcome any possible mayoral veto. Mayor Bill de Blasio, in response to the investigation by ProPublica and the New York Daily News, has said he believed all residents and businesses were entitled to due process. But lawyers for the city recently defended the police department’s use of ex parte closing orders in court filings in a federal lawsuit over the practice.

The mayor, at a news conference on Wednesday, said he was glad to examine the proposed legislation.

“I certainly will talk to the Council about it,” de Blasio said. “We have said, the NYPD has said, that we can and will and are making improvements in some of the due process issues. But we still believe that there's an appropriate use of this strategy.”

The Nuisance Abatement Fairness Act includes 13 bills sponsored by Mark-Viverito and several other council members. Under the proposed legislation, the police would have to detail at least four instances of drug sales at any location — instead of three under the current law — and an officer would have to be present during at least one of those instances. To date, police have often taken action based entirely on the word of confidential informants, or where searches had only turned up evidence of drug possession. The police would also need to include lab tests as exhibits.

The legislation would also limit the punishments police could impose on residents. Under the council’s proposed rules, a resident could only suffer “the least restrictive means” to ensure the cessation of the nuisance, and the maximum amount of time a person could be excluded from a home would be one year, or three years in the most exceptional cases. This bill would also prohibit the police from restricting the rights of any person who was not aware of the alleged nuisance activity.

“Obviously we want to delineate and make sure there’s a clear cut case that is really built on sale of drugs and not actual possession,” said Councilwoman Vanessa Gibson, chair of the committee on public safety.

Gibson’s committee will hold a hearing on the bills Nov. 2.

ProPublica and the Daily News, in an analysis of over 1,100 cases, found numerous instances in which residents agreed to give up their leases or banned specific family members from their homes for life — even when they weren’t ultimately prosecuted for a crime.

“I’m glad that they’re making the changes. I mean, it’s a little too late for me, but I’m glad that they’re making the changes,” said Jameelah El-Shabazz, a Bronx mother who permanently barred her adult son from her home as a result of a nuisance case.

Police had claimed they found a small amount of marijuana and 45 cups of cocaine during a search of her apartment in 2011, but a lab test came back negative on the powder. El-Shabazz said it was crushed eggshells she uses in a spiritual ritual.

Read the Series How New York City police are using little-known laws to kick people out of their homes, even they have haven't been charged with a crime. See the series.

Under the proposed bills, in order to close a business accused of selling alcohol to minors, police would need to document four sales, instead of just one under the current law. Other offenses, such as code violations and air pollution, would be completely eliminated.

Police Commissioner James P. O’Neill has not yet seen the council package. But in an earlier statement he called nuisance abatement “one of many important tools we use as part of precision policing.”

On Wednesday, Lawrence Byrne, the NYPD’s Deputy Commissioner of Legal Matters, said: “We’re in dialogue with the council. We welcome the oversight and review of the issue. It’s an important tool to keep communities safe. Removing criminals from residential and commercial establishments is something we’ve been doing for over 20 years. We will work with the council, and if they feel there are changes they want made in the program, we will work with them to do that.”

Mark-Viverito said she’s found O’Neill to be more open to legislative reforms. “I’ve dealt with the two prior commissioners, and definitely there’s a whole different approach here, and more openness to engaging, to listening, and figuring out ways that we can solve these issues, and legislation being one option.”

The council’s legislation would also require the NYPD and the city Law Department to issue regular reports of its nuisance activity to ensure the actions are being used fairly.

“That’s an overall concern, that communities of color are over-policed or that the law applies differently depending on your zip code,” Mark-Viverito said.