February 18, 2016

Don Lash explains how New York police are using a legal loophole to throw thousands of Blacks and Latinos out on the street without ever having to find them guilty in court.

NEW YORK City Mayor Bill de Blasio claims to be searching for solutions to skyrocketing homelessness. He could start by crossing the street to One Police Plaza and telling his police commissioner William Bratton stop throwing people on the street.

A recent investigation has found the New York Police Department is using a little-known "nuisance abatement law" from the 1970s to evict hundreds of people each year in Black and Latino neighborhoods, and to force others to give up their right to have family visit their homes and refuse to consent to illegal searches.

The city says these actions are justified to put a stop to ongoing drug crime, but many people targeted by the law are never convicted or even charged. Even in cases in which there are convictions, the fact that drug arrests--like the nuisance actions--disproportionately target Black and Latino neighborhoods means that these evictions are a continuation of the city's ugly history of racist housing practices.

THE CRIMINAL justice system breaks up poor families of color in many ways--mass incarceration, public housing restrictions and evictions, child welfare intervention and denial of opportunity for employment. What is attractive about the nuisance abatement law is that it is easy.

New York police surround a building where a Black family is being evicted

Unlike criminal court-–as well as housing court-–tenants have no right to legal representation in a nuisance abatement action. Nor is there necessarily a hearing before a judge. A judge may issue a secret "ex parte" order—meaning the residents are not present in court or even informed that anything is happening—that excludes residents from the apartment and subjects them to arrest if they return.

The law was initially created to give the city the power to stop ongoing illegal businesses like sex shops and gambling dens, where violations can be expected to take place every day by multiple people. But judges now accept allegations of conduct that may have occurred months earlier--and seldom ask for proof of recent activity.

In other words, the NYPD has found a new legal loophole to exact punishment without the inconvenience of having to prove crimes or observe due process protections.

The use of nuisance actions against residences is now receiving scrutiny because of excellent-–and rare-–investigative reporting by Pro Publica and the New York Daily News.

Looking at over 500 cases over an 18-month period, reporters found that 44 percent of nuisance abatement actions are residential. In three-quarters of cases, judges granted the exclusion order that police were seeking before even notifying the tenant. Eight of the 20 judges handling cases granted an exclusion order every time the NYPD requested one.

Out of the 377 cases for which investigators were able to identify outcomes, someone ended up being barred from the home 75 percent of the time--and less than half of those evicted were ultimately convicted of a crime. Of those whose race could be identified, 98 percent were not white.

IN ONE case examined at length, Jameelah El-Shabazz had her Bronx apartment stormed by police in 2011. The cops were looking for PCP but only found 45 paper cups with a substance made from eggshells, which she used for ceremonial purposes as a priestess in the Ifa religion.

El-Shabazz and her son spent a week on Riker's Island until they were released with all charges dropped after testing of the substance confirmed that the powder was from eggshells. A few months later, however, the NYPD brought a nuisance abatement action, seeking to exclude her from her home based on the allegation that the May raid had resulted in the seizure of 45 cups of cocaine.

The lawyer who signed the application either didn't know or didn't care that charges had been dropped. And as it turned out, the narcotics detective who targeted the woman was at one point the most sued officer in the NYPD, and was assigned to desk duty because of allegations he fabricated reports of drug buys by confidential informants.

Often, people sued in nuisance abatement actions came to court expecting to be appointed a lawyer, and at least one took legal advice from the NYPD's lawyer thinking he was appointed to help him.

Often tenants showing up in court are pressured by the NYPD lawyer into signing settlement agreements so they can get back inside their apartments--since fighting the case might mean an exclusion order will remain in effect until the case is resolved.

Tenants might sign an agreement agreeing to bar a family member from the house--sometimes for life--or consent to future warrantless searches. The NYPD routinely asks people to sign away their right to sue for any police misconduct that may have occurred.

Sometimes judges reviewed these settlement agreements in court. Sometimes they simply approved them. Settlement means that the NYPD will not be asked to prove its allegations, so in cases where no arrest is made, people give up their rights on the basis of an allegation that will never be proven.

The threat of homelessness is a powerful inducement to unrepresented tenants to settle cases on the city's terms. Loss of an apartment may mean sacrificing all possessions, disrupting employment, community ties and school enrollment, potentially having children removed into foster care, living in crowded shelters for a year or more and being barred from adequate permanent housing.

Given the stakes, it is not surprising that people might be willing to sign away rights, even if they are aware that's what they are doing.

THE NUISANCE abatement law originated in a plan to "clean up" the midtown Times Square area by shutting down or pushing out sex businesses, such as massage parlors and quick turnover hotels.

The 1977 law was written by Sidney Baumgarten and his team on the city's Midtown Enforcement Project. In its early years, the law was used exclusively in midtown Manhattan and exclusively against sex businesses.

In the first five years, it was used to shut down approximately 100 businesses. There is no evidence that sex trafficking was impacted, but the law did help to launch the "revitalization" of the Times Square area as a home for tourism, flagship stores and theme restaurants.

The law has been amended a number of times, expanding its coverage beyond sex businesses and reducing the number of alleged violations needed to trigger an action. Initially, the city believed the law required convictions rather than mere allegations.

In 1991, the NYPD won the right to bring actions itself, rather than having to work with the Department of Law. Use of nuisance abatement really expanded in 1994, during Bratton's first stint as commissioner in the administration of former Mayor Rudolph Giuliani.

The use of nuisance abatement law became part of the Broken Windows policing championed by Bratton to expand and broaden police powers in poor neighborhoods. Bratton called nuisance abatement "the most powerful civil tool available" to law enforcement, and doubled the size of the unit bringing actions under the law.

A record 214 actions were filed in 1994, and expansion of its use has continued since, topping 1,000 in 2013. Most recently, the law was amended in 2015 to target the sale of synthetic marijuana.

Initially, the NYPD was dismissive of the findings of the Pro Publica/Daily News investigation. Assistant Commissioner Richard Messner, the head of the unit that brings nuisance abatement actions, said that protections for tenants were not necessary because "you have to remember, it's an action about a place. It's not about people."

Messner was referring to the technicality that the city is "suing" the property and not the people who live there. But that distinction is meaningless to the people threatened with homelessness.

When the findings went public, however, the NYPD saw indications that judges and elected officials, who were either well-aware of this abusive policy or asleep at the wheel, were expressing concern and making noise about reforms.

The senior administrative judge suddenly decided that the law "may be broader than it should be," and his deputy sent a memo suggesting that judges avoid signing exclusion orders based on old allegations.

City Council members, meanwhile, proposed a variety of reforms, from limiting use of nuisance abatement to cases where there has been a conviction to funding legal representation. Sidney Baumgarten, the law's architect, proposed that the power to initiate nuisance abatement actions be taken away from the NYPD and returned exclusively to the Department of Law.

PERHAPS WORRIED that the Council would act to limit the use of the department's "powerful civil tool" and recognizing that the outcry would make judges more conscientious about being more than rubber stamps for the NYPD, Bratton quickly announced his intention to "take a fresh look" at the use of the nuisance abatement law.

Bratton nevertheless criticized the Pro Publica/Daily News investigation, saying it contained "misrepresentation" and "misinformation" that the NYPD could rebut. So far, it has not done so. Bratton announced that the NYPD would "very quickly" address the use of ex parte orders of exclusion, but didn't specify what would change.

Bill de Blasio was elected mayor in part based on his promises to reform the police abuses that flourished under Giuliani and Michael Bloomberg, but one of his first acts was the appointment of Bratton, who under Giuliani initiated many of those abuses.

De Blasio has been reluctant to challenge the NYPD--particularly since the police unions blasted him for acknowledging that New Yorkers had a right to protest last winter after a grand jury failed to indict the cop who strangled Eric Garner to death. His response to the revelations about nuisance abatement actions was no exception.

The mayor appeared with Bratton at a press conference, emphasizing his support for the "underlying idea" of using nuisance abatement against residential tenants. De Blasio even felt the need to walk back from his tepid statement that "there should always be due process," having a spokesperson later clarify that this did not mean the mayor opposed the use of ex parte lockout orders.

It's clear that Bratton's "fresh look" at nuisance abatement will not significantly address the abuses that Bratton still denies have occurred. Moreover, none of the measures mentioned by City Council members go far enough. Limiting the use of nuisance abatement to cases where there has been a conviction, for example, would still leave the law focused on Black and Latino New Yorkers, who are disproportionally targeted by NYPD for arrest and prosecution.

And Baumgarten's proposal to take the power to initiate actions from NYPD is a start, but wouldn't stop the use of nuisance abatement to throw people out of their homes or the use of settlement negotiations to coerce people into signing away rights.

We need to demand the complete end of nuisance abatement actions against private residences—and join that fight with the broader resistance to Broken Windows policing.