The Bronx Defenders v. NYPD


 

Filed on August 4, 2016, this New York State Freedom of Information Law (FOIL) suit asks the Supreme Court of the State of New York to order the NYPD to comply with its legal obligation to disclose information pertaining to its policies and procedures regarding, and accounting for, millions of dollars in cash and property seized during arrests each year.

On July 29, 2014, The Bronx Defenders submitted a request to the NYPD under FOIL seeking policies and documents pertaining to property seizures, including the value and accounting of these assets. The NYPD took over a year and a half to produce any records; its eventual response consisted of revenue and accounting summaries from 2013, together comprising only 14 pages, and a copy of its patrol guide.

The revenue summary shows that in 2013, the NYPD reported over $6 million in revenue from seized cash, civil forfeiture revenue, and property sold at auction. The accounting summaries also show that the NYPD had a balance of over $68 million in seized currency in any given month in 2013. The NYPD stated that it was unable to locate any additional records responsive to the request even though two of the documents were summaries. On April 13, 2016, The Bronx Defenders filed an administrative appeal, to which the NYPD failed to respond.

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Having exhausted its administrative remedies, The Bronx Defenders filed suit asking the Court to direct the NYPD to provide the requested information. In response, the NYPD moved to dismiss the lawsuit, arguing that it did not have the information sought due to limitations in the capabilities of its Property and Evidence Tracking System (PETS). In opposition to the NYPD’s motion, BxD pointed out evidence indicating that PETS contains information on the amount of property seized and argued that there must be some way to retrieve and produce that information, even if simply in the form of raw data. We argued that, if nothing else, the NYPD should be required to appear at a hearing and explain what responsive information can be retrieved from PETS. In reply, the NYPD shifted its argument and said it was too burdensome to produce the information they previously said they do not have.

On March 21, BxD attorney Adam Shoop argued our opposition to the NYPD’s motion to dismiss before the Court.

On May 19, the Court rendered a decision denying the NYPD’s motion to dismiss, directing the NYPD to answer our petition, and ordering the NYPD to appear at an oral argument in July. In its decision, the Court noted that NYPD had employed “troublesome” litigation tactics and said the NYPD’s legal position “just does not make sense.” The Court opined that “[t]here is a clear distinction between the capabilities of PETS to generate certain types of reports and whether PETS contains that information at all. . . . Although the data might not exist in the aggregate form that petitioner seeks, the data might exist in forms responsive to petitioner’s FOIL request.”

This decision from the Court is a step toward holding the NYPD accountable for its practice of seizing millions of dollars from low-income people.

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More than three hundred thousand people are arrested by the NYPD every year. Property or cash is seized in nearly every one of those arrests. Through our Civil Action Practice, we assist hundreds of low-income Bronx residents every year who are struggling to get their property back after an arrest. Many people are unable to get their property back, even after their cases have been dismissed, without legal assistance. Information about the NYPD’s property policies and procedures is critical to our ability to help our clients regain their rightful property.

The firm of Davis Wright Tremaine LLP is co-counsel in this case.

Note: This case is separate from The Bronx Defenders’ civil rights lawsuit Encarnacion v. City of New York, which challenges the NYPD Property Clerk’s policy and practice of retaining personal property seized in connection with an arrest long after the criminal case is over. The Bronx Defenders is also working with City Council members to advocate for legislative reform and transparency around civil forfeiture and other property seizure practices.

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