Testimony Regarding The Nuisance Abatement Fairness Act

Testimony Regarding The Nuisance Abatement Fairness Act

The New York Civil Liberties Union (the “NYCLU”) respectfully submits the following testimony to the Committee on Public Safety in support of the proposed legislation, Int. Nos. 1308 through 1344-2016 (collectively, the “Nuisance Abatement Fairness Act” or the “Bills”). These Bills seek to reform New York City’s Nuisance Abatement Law (the “NAL”) to address features of the existing law that have resulted in its widespread misuse, overwhelmingly against low-income New Yorkers in communities of color.

The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and 65,000 members. The NYCLU’s mission is to defend and promote the fundamental principles, rights, and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. This mission includes the rights to equality, due process, and access to justice that are implicated by today’s legislation.

In light of our long history of vigorously defending the rights and liberties of New Yorkers against unjust and unconstitutional police action, the NYCLU is pleased to testify in support of the Bills. For far too long, the NAL has been misused and exploited by the NYPD to evict or displace thousands of people and their families or businesses—overwhelmingly in communities of color—with inadequate process and without the protections guaranteed by traditional landlord-tenant or criminal proceedings. These Bills represent a welcome step taken by the Council to address the absence of due process protections in the current law and to ensure that the NYPD cannot continue to do an end-run around the Constitution and the many New York laws that protect the rights of tenants and small businesses.

The existing law invites widespread misuse and abuse by the NYPD.

These Bills represent a positive and common-sense step towards ensuring that vulnerable New Yorkers are not subjected to the unreasonable evictions and business closures that have proliferated under the NAL. Pursuant to the current law, Article 7 of the New York City Administrative Code authorizes the City to commence “public nuisance” actions in the New York State Supreme Court seeking orders to evict tenants or close businesses based on alleged histories of illegal activity.1 These orders can be obtained ex parte, without providing any opportunity to be heard to the tenant facing eviction or the business owner facing closure. Moreover, such orders may rest on allegations of illegal activity that occurred up to a year prior to the NYPD’s “emergency” action.2

The failure of the current law to protect New Yorkers from unjust evictions and closures has been widely documented in recent years. In April of 2015, the Legal Aid Society and Legal Services NYC sent a letter to the Corporation Counsel of the City of New York detailing their analysis of several years of Article 7 filings involving residential premises and their discovery that, in the majority of these filings, the City applied for and was granted ex parte emergency temporary closing orders without giving tenants notice or the opportunity to be heard, even though the offenses underlying the City’s complaints were many months old and there were no facts alleged that would justify an ex parteclosure.3 Many of the evicted tenants were elderly, disabled, or the parents of minor children, and they were often not the individuals directly implicated by the underlying criminal allegations related to the NAL actions. In addition, many of the underlying criminal charges had been dismissed and sealed, or disposed of with a non-criminal disposition, by the time the ex parte closing order was sought. In other cases, the tenants were already involved in pending landlord-tenant or New York City Housing Authority (“NYCHA”) proceedings—non-NAL proceedings that provided a vital measure of process to protect the rights of the tenants—based on the same criminal allegations.4

A 2016 series of articles published by ProPublica and The New York Daily News further highlighted the extent to which the NYPD has vastly expanded its use of the NAL—originally created in the 1970s to address specific concerns about the sex industry in Times Square—and estimated that it now targets over 1,000 residences and small business per year, overwhelmingly in communities of color.5 These investigations revealed a host of alarming and constitutionally-inadequate practices involving the NYPD’s use of the NAL. Beyond the NYPD’s overreliance on emergency ex parte proceedings, the articles noted the frequency of overlapping NYCHA or other proceedings based on the same underlying allegations;6 the lack of procedures in place to ensure that the tenants evicted are in fact the same tenants alleged to have been associated with the underlying criminal activity;7 the lack of procedures to ensure that “ongoing”8 criminal activity is in fact ongoing; the regular, and illegal, introduction into evidence of records that should be sealed pursuant to New York’s criminal procedure law;9 and the frequency with which tenants and business owners who were not alleged to have knowledge of any criminal activity were forced to accept settlement terms they considered coercive.10

As long as the NAL continues to exist in its current form, there is no reason to believe that the NYPD will stop exploiting the NAL’s astonishingly broad language to obtain the same kinds of unjustifiable closing orders and evictions described above. As recently as two weeks ago, reports revealed the NYPD’s continued reliance on emergency ex parte orders as a first step in many of its NAL actions.11These practices threaten to violate or undermine the core constitutional interests of New Yorkers, depriving people of property without notice or the opportunity to be heard, disproportionately targeting Black and Latino communities, and flouting the confidentiality provisions of the criminal sealing statute. The passage of the Nuisance Abatement Fairness Act would serve as a welcome and necessary assurance that the basic rights of vulnerable people who come into even the most glancing contact with the criminal justice system cannot be forsaken in the name of nuisance abatement.

The Bills offer common-sense and necessary reforms to the current law.

The reforms included in the Nuisance Abatement Fairness Act can go a long way towards providing tenants and business owners much-needed protection from the kinds of unjust eviction and closure proceedings described in the previous section. We support each of the proposed Bills; taken together, they address the most pressing deficiencies in the current NAL.

The most vital reform introduced by the various Bills is Int. No. 1308, which eliminates the sections of the current NAL that allow the City to seek ex parte temporary restraining orders and temporary closing orders without the defendant being put on notice and having the opportunity to be heard in court. As described in the previous section, the NYPD’s current practice of seeking ex parte orders as a matter of course in non-emergency situations constitutes a violation of the procedural due process rights afforded by the Constitution, which generally requires notice and a hearing prior to such a significant property deprivation absent an exceedingly compelling government interest that would preclude such a hearing.12 The Council is right to eliminate these TROs completely and to further strengthen the procedural protections of the NAL by adding a personal service requirement—included in Int. No. 1338—for all defendants facing eviction.13

The other bills included in this Act offer common-sense and necessary reforms to the current NAL. Several offer additional procedural protections for affected parties: preventing the NYPD from pursuing a NAL action unless it can confirm that similar proceedings are not already underway (Int. No. 1315); requiring the NYPD to ensure that sealed criminal records have not been used as evidence in any NAL action (1338); and prohibiting drug-related NAL actions without laboratory tests verifying the presence of drugs (1320) and at least one drug-related incident witnessed by a police officer (1321). Others establish more reasonable time-limits for the NYPD to seek and execute orders: reducing the current one-year Statute of Limitations to four months for most actions and 90 days for drug cases (1333-A); requiring the NYPD to enforce a preliminary injunction order within 15 days (1333-A); and preventing the NYPD from executing a NAL order if it has not verified the ongoing nature of the nuisance in the prior 15 days (1318). These reforms can prevent some of the more egregious NAL actions described in the previous section—including cases of mistaken identity and cases in which the intended defendant had long since moved on from the targeted residence when the order was sought or enforced—from continuing to occur in the future.

Additional reforms offer welcome limits to the scope of the law’s reach, excluding common but less serious allegations like simple drug possession and lower-level drug sales from the set of underlying criminal activities that can merit a NAL order (Int. No. 1317). Such allegations clearly should not trigger the extraordinary remedies of the NAL, nor should violations of the Alcoholic Beverage Control Law when a reasonable person would not have been aware of such a violation (1338). Similarly, bills limiting the amount of time an individual may be excluded from a property by a NAL action to one year in most cases (1323)14 and generally requiring a court to ensure that its order imposes the least restrictive remedy available to address the alleged nuisance (1339) codify much more reasonable limits on punishment than currently exist in the statute. Also, by including a detailed reporting provision (1327), the Act ensures much-needed transparency regarding how the NAL will be used, enforced, and adjudicated in the future.

Finally, the NYCLU notes that, despite their breadth, these Bills will not threaten the NYPD’s ability to identify and eliminate serious public nuisances. In addition to the reformed NAL, the City will retain its vast array of other means to address the problem of buildings that are plagued by persistent criminal activity, including the similar closure provisions of the Bawdy House Law15, traditional criminal proceedings, NYCHA exclusion actions, and any number of preventive policing strategies.16

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In conclusion, we applaud each of the Bills’ sponsors and co-sponsors for their recognition of the Council’s responsibility to reduce the number of unjust and unjustifiable actions brought pursuant to the NAL. These orders overwhelmingly affect tenants and business owners who belong to communities that have long been disproportionately targeted by police action. This is a welcome step towards fulfilling the City’s recent promises to ensure a fairer criminal justice system for all New Yorkers, and we respectfully submit this testimony in support of the Nuisance Abatement Fairness Act to the Committee.

Footnotes

1 NYC Code § 7-701, et seq.

2 Id.

3 Letter from Legal Services NYC and the Legal Aid Society to Zachary Carter (April 2, 2015), available at https://assets.documentcloud.org/documents/2820049/Legal-Aid-Letter-to-L….

4 Id.

5 See Sarah Ryley, The NYPD is Kicking People Out of Their Homes, Even If They Haven’t Committed a Crime, ProPublica and the New York Daily News (Feb. 4, 2016).

6 Id.

7 Sarah Ryley, Insiders Say NYPD’s Nuisance Unit Skirts the Law and Relies on Unconfirmed Allegations, ProPublica and the New York Daily News (Mar. 25, 2016).

8 Id.

9 Id.

10 Sarah Ryley, Lawsuit to Seek Rollback of NYPD’s Controversial Nuisance Abatement Efforts,ProPublica and the New York Daily News (Oct. 12, 2016).

11 Sarah Ryley, After Mayor Pledges ‘Due Process,’ NYPD Renews Aggressive Nuisance Abatement Enforcement, ProPublica and the New York Daily News (Oct. 13, 2016).

12 See Mathews v. Eldridge, 424 U.S. 319 (1976) (holding that the deprivation of property without notice and an opportunity to be heard requires extraordinary governmental interests that must override the private interest of the defendant and the risk of erroneous deprivation); U.S. v. James Daniel Good Real Property, 510 U.S. 43, 53-54 (1993) (holding that the “right to maintain control over [one]’s home, and to be free from governmental interference, is a private interest of historic and continuing importance” that required a pre-deprivation hearing).

13 We also support the repeal of the Padlock Law—Int. No. 1326—which permits the NYPD to close a residence or business housing criminal activity after two arrests and one conviction, without judicial review, NYC Code §§ 10-155 & 10-156, although reports indicate that it has not been used in approximately 15 years, see Sarah Ryley, The NYPD is Running Stings Against Immigrant-Owned Shops, Then Punishing For Warrentless Searches, ProPublica and the New York Daily News (Apr. 22, 2016).

14 The NYCLU does not support Int. No. 1323-2016’s inclusion of a provision allowing for “unique circumstances” to merit an exclusion of up to three years—a clear one-year ceiling offers a more reasonable upper limit for one of the most severe and life-altering orders that can be imposed on an individual.

15 RPAPL § 715.

16 Indeed, due to the availability of these laws and other strategies, it is the NYCLU’s position that the NAL can and should be repealed in its entirety. We would support such a proposal, but in the meantime we recognize the pressing need for the reforms included in the current version of the Nuisance Abatement Fairness Act.