Breaking Up Families, No Crime Required

Sung is joined as a plaintiff by two other targets of no-fault eviction actions—David Diaz and Jameelah El-Shabazz. Both were forced to agree to exclude family members from their apartments, although David, Jameelah and their respective family members were not accused (much less convicted) of a crime.

David Diaz, a custodian at a synagogue in the Bronx, lives with members of his family in an apartment near the Bronx Zoo. The NYPD raided the apartment in 2013, entering with guns drawn, and indiscriminately arrested every person present (with the exception of David’s infant daughter and his teenage niece). The police found a small amount of drugs during the search—drugs that David had no idea were in the apartment—but did not charge anyone with a crime.

Months later, the police returned to inform David that his apartment had been ordered closed under the city’s no-fault eviction ordinance. Based on the earlier raid, as well as statements by unnamed confidential informants, the city claimed the apartment had been the site of drug offenses. But the city did not name or otherwise identify the alleged criminal.

To settle the case, the city demanded that David agree to permanently bar from even visiting the apartment every person who was arrested the day of the raid and not listed as a tenant on the lease. David does not understand why he should have to close his home to his brothers, whom he relies on for babysitting while he is at work. David is certain his brothers had nothing to do with any contraband, and the city has never suggested otherwise. Nonetheless, facing eviction, David had no choice but to agree.

Jameelah’s story is perhaps even more outrageous. Police raided Jameelah’s apartment in 2011 and found several cups filled with crushed eggshells, which Jameelah uses for religious purposes. Believing the cups were filled with drugs, police arrested Jameelah and her son Akin and held them in jail for a week. Jameelah and her son sued the city for wrongful arrest, and the city agreed to pay $37,500 to settle the case.

One month after paying that settlement, police returned to inform Jameelah that her apartment had been ordered closed under the city’s no-fault eviction ordinance. City attorneys, relying on those same discredited allegations about the cups of crushed eggshells, were claiming the apartment had been the site of drug crimes.

Although the city’s allegations were meritless, a judge had already ordered Jameelah evicted at a hearing where she had no notice of the allegations and no opportunity to respond. Jameelah could not afford the time and expense of fighting to get that decision reversed. So, to regain access to the apartment, a legal aid attorney signed an agreement on Jameelah’s behalf under which she must permanently bar her son Akin from her home.

A Broader Pattern of Coercion

These cases are part of a broader pattern, in which the city pursues no-fault eviction cases based on often-flimsy allegations of criminal behavior in order to pressure residents and business owners to enter into agreements to waive constitutional rights.

A former city attorney, speaking anonymously to ProPublica and the New York Daily News, described the lack of care that goes into these no-fault eviction actions: “Everything is kind of like, you know boilerplate, like fill in the blanks or whatever. . . . Like we get the vouchers, we just plug in the time, the date. Like there’s a lot of mistakes in these orders, you know?”

Statistical data gathered by ProPublica and the New York Daily News also shed light on the extent to which the city’s no-fault eviction actions target innocent people. Of 516 residential nuisance abatement actions filed between January 1, 2013, and June 30, 2014, at least 173 of the people who gave up their leases or were banned from their homes were not convicted of a crime, including 44 people who appear to have faced no criminal prosecution whatsoever.

Furthermore, statistical data confirm that waivers of constitutional rights similar to those exacted from Sung, David and Jameelah are common. Over the same 18-month period referenced above, the city forced property owners into over 400 settlements consenting to warrantless searches of their homes or businesses, over 100 agreements requiring installation of security cameras that the NYPD could access on request, and over 100 agreements providing that certain friends or family members must be excluded from a home.

Perhaps unsurprisingly, the city’s lack of respect for property rights disproportionately impacts minority communities—a phenomenon that has been extensively documented in other contexts as well, including eminent domain and civil forfeiture. Between January 1, 2013, and June 30, 2014, nine out of 10 residential properties targeted under the city’s no-fault eviction ordinance were located in predominantly minority neighborhoods. ProPublica and the New York Daily News were able to identify the race of 215 individuals barred from homes or apartments in no-fault eviction actions during that period, and of those 215 individuals only five were white.

A recent advisory notice issued by New York City’s deputy chief administrative judge echoes these criticisms. The judge observed that “occupants . . . do not have notice that their dwelling place is being closed”; that supporting “affidavits are very general and do not reference an individual defendant”; that “[m]any cases are commenced against John Doe, so there are virtually no claims in the affidavit of merit against individuals”; and that “very few cases involve any direct criminal allegations against the named defendants.” In addition, the judge stated that, “[o]n the rare occasions when a defendant appears on the hearing date, virtually every time there is a stipulation of settlement where the defendants waive all of their rights.”

The Claim: Government Cannot Use Threats of Eviction to Force Waivers of Constitutional Rights

Plaintiffs are bringing suit to vindicate a simple principle: The government cannot use the threat of eviction to force innocent people to waive their constitutional rights.

In cases involving property owners, the U.S. Supreme Court has held that the Constitution limits the government’s ability to coerce individuals to waive their property rights. These cases reject government demands that property owners provide easements or other concessions in exchange for government permission to develop their property. Here, Sung, David and Jameelah seek to extend that same non-coercion principle to residents and business owners who lease, rather than own, their property and who are forced to waive constitutional rights to avoid eviction.

Plaintiffs will seek to invalidate three broad categories of waivers. First, plaintiffs will seek to invalidate agreements waiving the right to be free from warrantless searches. That right, enshrined in the Fourth Amendment, is a key protection provided to property owners and renters alike. Second, plaintiffs will seek to invalidate agreements excluding family members from the home. The Supreme Court has firmly established that the Constitution protects the right to live with family members. Third, and finally, plaintiffs will seek to invalidate agreements consenting to future fines and sanctions without any need for a decision from a judge. The right to a hearing before a neutral judge prior to imposition of civil or criminal sanctions is a bedrock requirement of due process. The city violates the Constitution when it forces innocent individuals to waive these essential rights under threat of eviction.

In addition, plaintiffs will rely on Supreme Court precedent holding that (absent exigent circumstances) government must provide notice and a hearing before seizing real property. The city’s no-fault eviction ordinance manifestly violates this precedent, as it allows the city to obtain an eviction order at the outset of a case without any notice to the occupant of the property. This summary eviction procedure, in addition to being plainly unconstitutional, provides the city with extraordinary leverage to force residents and business owners into settlement agreements.

The Court and the Parties

This case has been filed as a class action in the United States District Court for the Southern District of New York, the federal district court located in Manhattan.

The plaintiffs are Sung Cho, Nagle Washrite LLC (which is the corporate form for Sung Cho’s business), David Diaz and Jameelah El-Shabazz. Because the case is filed as a class action, these named plaintiffs are suing on behalf of every person in New York City subject to similar settlement agreements.

The defendants are the city of New York, the NYPD, the New York City Law Department and, in their official capacities, Mayor Bill de Blasio, Police Commissioner James O’Neill and the city’s Corporation Counsel, Zachary Carter.

The Litigation Team

The case is being litigated by IJ attorneys Robert Everett Johnson, Darpana Sheth and Milad Emam. They will be assisted by New York attorneys Ian Goldrich and Ana-Claudia Roderick of Kilpatrick, Townsend & Stockton LLP.

The Institute for Justice

The Institute for Justice is the national law firm for liberty. IJ is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government. IJ is based in Arlington, Virginia, and has offices in Arizona, Florida, Minnesota, Texas and Washington state, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.

IJ has come to the defense of Americans nationwide to protect property rights, including a class of property owners in Philadelphia challenging, among other things, that city’s exaction of unconstitutional conditions through the threat of civil forfeiture.