ProPublica and the New York Daily News: The NYPD Is Kicking People Out of Their Homes, Even If They Haven’t Committed a Crime

THE MORNING OF MAY 4, 2011, Jameelah El-Shabazz watched out the window of her Bronx apartment as a team of police officers fanned across the rooftop of Banana Kelly High School. The 43-year-old mother of five said she didn’t think much of the scene — drug raids were common in her neighborhood.

As she did most mornings, El-Shabazz said she went to her bedroom to feed her newborn son and to worship before a shrine of candles and carvings arranged atop her wardrobe. Her most treasured object was a wooden tray her father had brought her from Nigeria. A deity of the Ifa religion, which she practices as a high priestess, was carved on its surface and covered in a residue of finely crushed eggshells. El-Shabazz used the substance, known in her faith as efun powder, to cleanse the shrine. She took fresh clumps of the powder from a cup and began to break it up in her hands.

That’s when the narcotics officers kicked in the door.

Her baby shrieked as the gun-wielding officers tore apart rooms looking for PCP, which an anonymous informant had claimed was being sold from the apartment. They ordered everyone to lie on the ground, then turned to her eldest son, Akin Shakoor, who along with another son was having frequent run-ins with police. El-Shabazz said the officers told Shakoor if he didn’t give up the drugs, “they would take all of my children away from me and make sure that I was put out of my apartment.”

As evidence, police seized 45 paper cups of the eggshell powder, the sacred wooden tray, and a small amount of marijuana. They arrested El-Shabazz, her teenaged sister Najah El-Shabazz, and Shakoor, then 21, and took them outside past the handcuffed residents of four other apartments that were raided that morning.

Najah was released, court filings say, but Jameelah El-Shabazz and Shakoor sat in cells on Rikers Island for the next week awaiting the results of police lab tests. 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. Incredibly, the filing, signed by a New York Police Department attorney, stated: “recovered during the execution of the search warrant were forty-five (45) paper cups of cocaine.”

The nuisance abatement law was created in the 1970’s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences.

The process has remarkably few protections for people facing the loss of their homes.

Three-quarters of the cases begin with secret court orders that lock residents out 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.

Perhaps most fundamentally, residents can be permanently barred from their homes without being convicted or even charged with a crime.

A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her.

In partnership with ProPublica, the Daily News reviewed 516 residential nuisance abatement actions filed in the Supreme Courts from Jan. 1, 2013 through June 30, 2014. Our analysis also reviewed the outcomes of the underlying criminal cases against hundreds of people who were banned from homes as a result of these actions.
– 173 of the people who gave up their leases or were banned from homes were not convicted of a crime, including 44 people who appear to have faced no criminal prosecution whatsoever.
– Overall, tenants and homeowners lost or had already left homes in three-quarters of the 337 cases for which the Daily News and ProPublica were able to determine the outcome. The other cases were either withdrawn without explanation, were missing settlements, or are still active.
– In at least 74 cases, residents agreed to warrantless searches of their homes, sometimes in perpetuity, as one of the conditions of being allowed back in. Others agreed to automatically forfeit their leases if they were merely accused of wrongdoing in the future.
– The toll of nuisance abatement actions falls almost exclusively on minorities, our analysis showed. Over 18 months, nine of 10 homes subjected to such actions were in minority communities. We identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white.

Runa Rajagopal of the Bronx Defenders, who leads a division that represents people in the civil courts, called the practice a “collective punishment” on the entire family of those accused of a crime, “used by the NYPD to exert power and control largely over communities of color.”

The NYPD declined to answer any questions about specific cases.

Officials emphasized that because these are civil cases, they’re handled separately from criminal cases and thus have lower standards of proof.

“The law does not require criminal conviction, does not require [a] particular disposition of a criminal case, does not even require an arrest of anyone,” said Lawrence Byrne, the NYPD’s Deputy Commissioner of Legal Matters in an interview with the Daily News last year.

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.”

The department’s chief spokesman, Stephen Davis, said in a statement that the suits are intended to prevent crimes from reoccurring at ‘repeat offender’ locations. “Each nuisance abatement order and settlement is signed-off by a judge.” Davis added.

Though a nuisance abatement threatened to force El-Shabazz out of her home, she doesn’t appear to have been the intended target. Two of El-Shabazz’s sons were already known to police when her apartment was raided in 2011.

Akin Shakoor had been arrested at the building at least twice before, in 2009, for misdemeanor possession of drugs. He pleaded both cases down to non-criminal violations. Her other son, Jehadh Shakoor, was arrested in the neighborhood with marijuana in 2008, and with PCP in 2009, and convicted of misdemeanor possession charges. (El-Shabazz said the officers also often harassed a third son, who was an honor student in high school and is now in college.)

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 NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones.

This decades-old approach — which has introduced large numbers of black and Hispanic New Yorkers to the criminal justice system through stop-and-frisks, summonses and misdemeanor arrests — has touched off waves of protests in recent years.

Though little heard of, nuisance abatement actions have long been a key component of the strategy. 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.”

Since Bratton wrote those words, the number of nuisance abatement actions filed each year has quintupled.

Bratton was hired back as police commissioner in 2014. While he has significantly reformed other aspects of quality-of-life policing, the department does not appear to have adjusted its policies when it comes to nuisance abatement actions.

Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.

“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”

In most other cities, officials can’t initiate a nuisance abatement action unless they’ve given landlords the opportunity to solve problems first. Authorities can only restrict access to a home after a court process that involves all parties.

But in New York, the NYPD begins nearly every nuisance abatement action by making an emergency appeal to a civil court judge without the landlord or tenant present, alleging the dangers a residence poses. Affidavits detailing three instances of a particular crime, such as drug dealing or gambling, in a one-year period are enough for a judge to authorize an action.

The allegations can be based entirely on the work of confidential informants or undercover officers and need not have led to arrests. The Daily News and ProPublica identified 17 nuisance abatement actions against residences and 64 against businesses in which no arrests were documented.

When they file a case, the police always ask the judge for permission to lock out the occupants of the residence until the case is resolved. These requests for what’s known as “temporary closing orders” state that the location is being used in an “ongoing illegal manner,” and that the “public health, safety and welfare require immediate abatement of the public nuisance.”

However, the NYPD’s court filings routinely do not describe the alleged “ongoing” illegal activity that would justify immediately throwing people out of their homes. Instead, the Daily News and ProPublica analysis found, police filings describe purported offenses that occurred, on average, at least five months earlier for businesses and six months earlier for residences.

Judge Fern Fisher, the deputy chief administrative judge for the city’s courts, expressed concern. “If it’s six months old, then it’s not all that much of an emergency that you can’t wait three or four days for the (other) party to come in and tell their side of the story,” she said.

Prompted by the Daily News and ProPublica’s findings, Fisher issued an advisory notice to judges on Feb. 1 that recommended limiting the granting of temporary closing orders of homes before the tenant or homeowner has come to court. The notice also cautioned against granting such orders when the evidence of alleged illegal activity is old, or based on “statements with multiple layers of hearsay” and the word of confidential informants.

The Daily News and ProPublica found temporary closing orders were granted in 75 percent of the residential cases examined. Some judges granted the requests nearly every time. Queens Judge Orin Kitzes signed them in 235 out of 236 cases that came before him. Others, such as Manhattan Judge Michael Stallman, routinely crossed out that portion of applications. Stallman said he does this because the NYPD’s attorneys never have any evidence of ongoing illegal activity or information about the outcomes of the underlying criminal cases.

“I can’t remember the last time that I’ve ever had information about the disposition of a criminal case,” he said. “I’ve repeatedly indicated that it’s difficult for me to evaluate a civil case where I don’t even know whether the criminal case is pending.”

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.

“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.”

The NYPD’s Byrne said when officers serve temporary closing orders, they can use their discretion to determine if certain family members can stay.

By law, people affected by temporary closing orders have a right to a court appearance within three business days. But they could wait as long as five days if their court date would otherwise fall on a weekend. 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.

Luis Rivera, 58, was shut out of his apartment in the Bronx for nearly a month in 2013 while he fought his case. It alleged the requisite three violations: Five months earlier, police said a confidential informant had bought heroin at the apartment on two occasions. Shortly thereafter, during a raid on the apartment, police said they found seven small paper envelopes of white powder, a marijuana cigarette and two gravity knives. They arrested Rivera, along with two other men who were staying with him.

Rivera was described by people who knew him as having significant mental and physical impairments. One woman, who asked not to be named, said she let Rivera sleep on a chair in her studio apartment after the nuisance abatement action left him homeless. She said the officers should have known he was too sick for the streets.

“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.”

The criminal charges against Rivera and the other two men were eventually dismissed, and Rivera was allowed back in his apartment after signing a settlement with strict terms limiting who could visit.

He died last September.

Read the full article here.

By Sarah Ryley for ProPublica and the New York Daily News

Additional reporting and research by Barry Paddock of the New York Daily News; and Edwin Torres, Christine Lee, Pia Dangelmayer and Andrea Hilbert, special to ProPublica. Production by Hannah Birch, Rob Weychert, and David Sleight.