Just when I thought I’d heard every awful thing in the criminal justice system —
Actually, I’ve learned by now that the criminal justice system is an unending source of unjust practices and terrible outcomes, so let me start again…
It’s been a while since I heard any new stories about awful things in the criminal justice system, but that’s remedied today in this depressing story from ProPublica writer Sarah Ryley, which begins with an anecdote about what can happen to drug suspects in New York City, even after they are exonerated:
Finally, the results confirmed what she had told the officers all along: the wooden tray and the 45 paper cups of powder were drug-free. Jameelah El-Shabazz and Shakoor were released from Rikers and fully exonerated.
But El-Shabazz’s battle with New York’s legal system was only beginning. That September, another of her sons called to say the police were back, this time with a lawyer and a court order to seal the Bronx apartment. Her entire family had to leave — immediately.
El-Shabazz was facing a nuisance abatement action, a little-known type of lawsuit that gives the city the power to shut down places it claims are being used for illegal purposes. The case against her was based on the same drug allegations that had been dismissed in May.
As you might guess if you’re familiar with this sort of thing, it’s yet another situation where the state can use civil court proceedings to punish people for a crime without having to convict them of a crime or even charge them. In this case, the legal action was originally created to shut down business locations that had a lot of criminal activity (e.g. prostitution), but the NYPD now uses it to kick people out of their homes.
Three-quarters of the cases begin with secret court orders that lock residents until the case is resolved. The police need a judge’s signoff, but residents aren’t notified and thus have no chance to tell their side of the story until they’ve already been locked out for days. And because these are civil actions, residents also have no right to an attorney.
The story is filled with infuriating details:
Luis Rivera, 58, was shut out of his apartment in the Bronx for nearly a month in 2013 while he fought his case. […]
Rivera was described by people who knew him as having significant mental and physical impairments. […]
“He was not doing good at all,” she said. “He had cancer; he was on the transplant list. You could tell he was very sick. There were times when he didn’t remember what was what. He would shit on himself and everything.”
In court filings, Rivera said he did not understand what was happening when the police arrested him a second time as they served him with the nuisance abatement action. When he was released, he simply went home, then was arrested a third time for violating a temporary closing order.
“My understanding was that I could go back to my apartment because I was given my keys. I was handed some papers but I am not able to read or understand them on my own,” he said in an affidavit filed through his attorney, Rajagopal. “I am still very confused as to how or why the police were able to evict me from my home without a hearing or trial.”
I’m not a lawyer, but to me the justification sounds similar in concept to they way in rem civil forfeiture is justified:
Assistant Commissioner Robert Messner, who heads the NYPD’s Civil Enforcement Unit, concurred, saying, “You have to remember, it’s an action about a place. It’s not about people.”
Get it? They’re not kicking people out of their homes, not at all, they’re just preventing the homes from having people in them. It’s a totally different thing. Because asshats like Assistant Commissioner Robert Messner say it is.
And why would you need protections just for kicking people out of their homes? Can’t we trust the police?
The narcotics officer behind nuisance abatement cases against El-Shabazz and others, Detective Peter Valentin, has his own history. The Daily News earlier identified him as the most-sued officer on the NYPD’s 35,000-member force. Valentin was put on desk duty in 2014 for allegedly fabricating buys from confidential informants.
The idea for nuisance abatement actions shares a familiar history with other abusive policies:
William Bratton, fresh into his first tenure as the city’s top law enforcement official, hailed such actions in a 1995 white paper on quality-of-life policing as “probably the most powerful civil tool available to the police,” allowing officers to “sweep down on a location and close it without warning.”
And without any of that pesky due process. The NYPD usually asks a judge for an emergency order to kick residents out immediately, rather than waiting a few days to allow them to get a lawyer and come to court. The argument for an emergency is that the location is dangerous and there’s no time to wait. Apparently, few judges question the sincerity of this claim, even though the paperwork often shows that the NYPD has been sitting on the evidence of this supposed emergency for months.
NYPD’s Messner said his lawyers “talk to” the precinct officers to confirm the location still poses a problem, but don’t include this information in court filings for the sake of efficiency.
A person less charitable than me might suggest that the real reason they don’t include this information in court filings is that it’s not actually true.
“The judges don’t want to read tomes,” he said. “We could do 100 cases a year instead of 800 cases a year, with, you know, tremendous levels of detail. But we wouldn’t end up with a better product. We’d just end up helping a lot less people.”
In other words, giving New York residents due process just isn’t in the budget.
Naturally, once people are kicked out of their homes, the NYPD can use the possibility of returning as a bargaining chip:
At the courthouse, the NYPD’s attorney usually offers to settle the case without going to trial — often by requiring tenants to bar specific people from their homes or to give up their leases. Then the closing order is lifted.
But if tenants decide to fight the case, they may not be allowed to go home until the case is resolved. Though cases rarely go to trial, settlement negotiations can take weeks.
That results in situations like this:
Juan Vadi, a 53-year-old recovering addict, pleaded guilty to misdemeanor drug possession and was fined $500 after police turned up a Ziploc bag of crack, two pipes and a plate with crack residue, and a marijuana grinder during a search of his parents’ Jamaica, Queens apartment.
Eight months later, police issued a nuisance abatement action detailing the arrest and claiming Vadi was using the apartment to sell crack. He insisted he would never sell drugs from the family home, where multiple generations share four bedrooms, and said he believes an acquaintance who always seemed to get arrested but never did any time fabricated allegations about buying drugs there. Nonetheless, in order to protect his family members from losing their home, Vadi agreed never to sleep there again for the rest of his life.
That sort of provision is not unusual:
The settlements often impose provisions that critics say erode tenants’ constitutional rights. The Daily News and ProPublica identified 74 cases in which tenants or homeowners agreed to allow warrantless searches in order to get back into their homes. They routinely waive their right to sue, and promise to vacate the home immediately and surrender their lease without going before a judge if accused of wrongdoing in the future.
Otero signed a settlement that says the NYPD can make unannounced inspections for a year, and if anyone besides her and her son are found in the apartment during the first six months, she will immediately surrender her lease.
Some of those facing nuisance abatement actions told the Daily News and ProPublica they thought the NYPD attorney was actually there to give them advice, unaware they weren’t entitled to free counsel and that the attorney actually represented the other side.
I’m sure it was an unfortunate and totally accidental misunderstanding.
By the way, if you’re wondering what kind of person makes it their life’s mission to throw people out of their homes, all I can say is that Assistant Commissioner Robert Messner sure has the ego to be a sociopath:
Messner said he was pleased that his staff’s caseload increased even as the department was cut from 65 to 55 people. “I’m an astronomically good manager,” he said. “This is an efficient way to address crime and provide police services.”
Yeah…I’m guessing this isn’t the only awful NYPD shit he’s been into over the years.
There are a whole lot more details in Sarah Ryley’s story. Read the whole thing.