Encarnacion v. City of New York


The NYPD routinely confiscates cash, cell phones, and other personal property from people arrested in New York—particularly impacting people in the low-income communities targeted by broken windows policing, who can least afford it. A City budget document states that NYPD retained $7 million in unclaimed cash and property auction proceeds as revenue in fiscal year 2016.

Personal property that is retained as evidence must be returned to the individual once the criminal case is over, unless the government has a legal basis to retain it. But according to a federal class action lawsuit filed on January 8, 2016 in the Southern District of New York, the NYPD has instead imposed convoluted procedures making it virtually impossible for many people to get this property back.

On February 12, 2018, The Bronx Defenders and the law firm Boies Schiller Flexner LLP secured a settlement requiring New York City to implement a series of reforms to ensure that the NYPD ceases its unconstitutional practice of indefinitely holding personal property from the hundreds of thousands of New Yorkers arrested each year.

Each of the individual plaintiffs named in the lawsuit fought for nearly a year or more after their cases were dismissed to get their property back. None of the plaintiffs were able to retrieve their property until after they filed suit. They received financial settlements, including attorneys’ fees and costs.

As a result of the settlement, both the NYPD and The Office of the Bronx District Attorney (the “Bronx DA”) will implement reforms to ensure that people can retrieve their property without enduring months of difficulty and delays. Ultimately, these reforms will alleviate one of the many consequences of broken windows policing experienced by low-income communities.The lawsuit was initially filed to challenge the NYPD’s unconstitutional retention of property after a case is closed. The terms of this settlement, however, extend beyond this circumstance and apply to property held in open and closed criminal cases.

As part of the settlement, the NYPD has agreed to comply with clear rules regarding the seizure and return of property; provide people with notice on how to retrieve their property; train and supervise NYPD personnel concerning these mandates; conduct audits to ensure compliance; and submit to ongoing court jurisdiction. In addition, the Bronx DA has implemented reforms to bring their office into compliance with longstanding City rules to ensure that people are issued releases for property in a timely fashion, including an electronic monitoring system to track compliance, a dedicated phone line so people can check the status of requests, and a specialized property release unit to address concerns. The Bronx DA has also revised its practices to try to ensure property is no longer retained for improper reasons. Additionally, the Bronx DA will share data on the effect of the reforms with The Bronx Defenders.

The federal judge will retain jurisdiction over the NYPD and Bronx DA for two years to ensure compliance with reforms.


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