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The NYPD is being sued over its alleged use of sealed arrest records as part of its policing practices, according to The Bronx Defenders. Photo Credit: Lavanya Sunkara

A Bronx public defense nonprofit is suing the city and the NYPD in an attempt to stop the department from using information on arrestees who haven’t been convicted of a crime during daily policing activities, a practice they argue unfairly targets communities of color.

The Bronx Defenders and Cleary Gottlieb Steen & Hamilton LLP filed the class-action lawsuit Tuesday afternoon on behalf of three New Yorkers using the pseudonyms R.C., J.J. and A.G.

The NYPD is barred from using or sharing sealed records, including mug shots and fingerprints, related to arrests that did not end in a criminal conviction under the state’s long-standing privacy laws unless the department can obtain a court order to do so. But the NYPD consistently flouts the court requirement, sharing sealed arrest records with prosecutors and the media without permission and using the information in routine police work, the lawsuit alleges.

“Police departments nationally are increasingly relying on data to make decisions about who to target and where to target their resources. One massive piece of that data comes from arrest records, said Jenn Rolnick Borchetta, 41, deputy director of the impact litigation practice for The Bronx Defenders.

“By ensuring that departments protect arrest records that are already protected under state sealing laws, we can help ensure that this data-driven surveillance is not violating privacy rights.”

One plaintiff in the lawsuit, R.C., a 24-year-old Latino man, alleges the NYPD illegally used a mug shot from his sealed records as part of a photo lineup for an investigation into a 2015 robbery in the Bronx. He says he was in Connecticut at the time of the robbery, and that the mug shot should have been destroyed when his original case was dismissed years earlier. The man was forced to put his plans for college on hold to fight the robbery charges for over a year, the suit alleges.

The charges were eventually dismissed, but the ordeal took a toll on his personal and professional life, creating emotional distress, fear, and anxiety, according to the lawsuit.

The NYPD’s practice of using sealed arrest records as part of investigations was not widely known until recently, Borchetta said, when attorneys with The Bronx Defenders began to notice a trend of prosecutors referencing sealed arrest records.

“We did an investigation over the last year and a half to see how often that was happening and it was very clearly happening frequently,” she added.

The lawsuit also alleges that the NYPD is sharing access to its databases with local and federal agencies, knowing that they contain sealed arrest records that may not be properly protected.

“Through this lawsuit, we hope to determine whether improper disclosures to other agencies are happening, and to stop them if they are,” Borchetta said, adding that the practice also disproportionately impacts thousands of black and Latino people.

The NYPD gathered personal information on at least 820,000 arrests between 2014 and 2016, and more than 400,000 of those should be sealed, per The Bronx Defenders. While more than 330,000 of those sealed arrests were of black and Latino people, roughly 50,000 were of white people, the nonprofit said.

According to Borchetta, the NYPD’s aggressive policing of low-level offenses, known as “broken windows” policing, results in the unfair targeting of black and Latino people and plays a major role in the large number of sealed arrest records for people of color.

“This drives up the number of arrests tremendously. We see a huge number of arrests, most are for misdemeanors,” Borchetta said. “Robberies and murders and stuff like that, that’s not what the police are spending most of their time on.”

And while the NYPD has reported record-low crime statistics for over a year, Borchetta argues broken windows policing is not the reason.

“This practice is not helping to keep crime low,” she said. “What it’s doing is overwhelming the systems so they’re unable to identify real patterns of crime, and it actually obscures their view of what’s actually happening.”

Through the lawsuit, the plaintiffs hope to force the NYPD to better protect sealed arrest records in its databases and improve training for officers who have access to the information.

“The NYPD would have to implement changes to both policy and procedures,” Borchetta explained. “These records will not disappear. They will just be protected so they’re only using it when a court says so.”

The NYPD directed a request for comment on the lawsuit to the city’s Law Department, which is reviewing the complaint and will respond accordingly, a spokesman said.