It is often said that the way to hell is paved with good intentions. New York City’s Nuisance Abatement Law was enacted in 1977 to combat sex-related crimes previously out of law enforcement’s reach. The original law allowed city officials to target 12 types of crime taking place in storefronts with temporary closing orders (TCOs) or temporary restraining orders (TROs). These orders could be secured without the plaintiff’s knowledge.
Early interpretation of the statute required criminal convictions to surprise tenants with TCOs, but a judge ruled that convictions were not required in 1989. Lawmakers further expanded the law’s purview by allowing NYPD attorneys to file nuisance abatement actions, applying the statute to residencies, and including a wide variety of crimes. Today, the use of this ordinance is more criminal than the actions of its targets.
It is no surprise that no-fault evictions have become a source of corruption. The law uses a civil suit to target alleged criminal activity, which results in a lower burden of proof and no guaranteed right to an attorney. Eviction can be threatened after meeting the low threshold of three anonymous allegations of criminal activity within the past year. Under the pretext that the property is an immediate threat to public health, the NYPD can request TCOs or TROs from a judge without proving a single allegation. Oddly, most allegations of criminal activity occurred five months earlier for targeted business and six months earlier for residences. If such serious threats to public safety can go unaddressed for months, then there is both cause to question the effectiveness of the NYPD and time for defendants to appear in court and plead their case.
After a tenant is surprised with a TCO or TRO, they have the right to appear in court within three business days. Losing in court results in eviction and landlords will have to get the next tenant approved by the NYPD.
While residents and business owners have the option to fight the suit in court, most cases just go to settlement. The tenant must pay the police department or agree to unconstitutional penalties for the right to continue living at home – despite never being convicted of a crime. Settlement agreements often include unrestricted police access to security cameras, warrantless searches, barring certain family members from homes, and agreeing to pay any fines in the future.
Settlements happen for multiple reasons. First, residents or business owners will likely be barred from the property until the case is closed. Withholding property is a powerful form of coercion, especially when innocence might not prevent permanent eviction. Second, there is no right to an attorney in civil proceedings. ProPublica cited instances where residents did not understand what was being asked of them or thought the city attorney was also representing them.
ProPublica and the New York Daily News reviewed 516 residential nuisance abatement actions from January 2013 to June 2014 and found that 173 residents who had to leave their homes had been convicted of no crime and that 44 had never been criminally prosecuted. Additionally, 74 residents agreed to warrantless searches to be let back into their own homes.
Furthermore, settlement agreements are oftentimes a redundant penalty. 58 percent of businesses are targeted due to alcohol violations, which are already handled by the State Liquor Authority. The NYPD can use the exact same allegations to punish the business after it has already paid steep fines or lost their liquor license.
Two city attorneys anonymously reported to NY Daily News further details of the investigations conducted by city officials. They claimed that the NYPD rarely takes required photographic inventory of evidence found on the premises. Out of 1,162 cases reviewed, no record of an inventory was ever found. Furthermore, sealed documents from dismissed criminal cases are illegally opened and used as evidence when filing for a no-fault eviction. This, however, may be due to poor communication between entities, as the NYPD rarely informs the Civil Enforcement Unit that a case has been dismissed.
Clearly no-fault evictions are not always used to shut down hubs of crime. Consider the story of Sung Cho, a laundromat owner in Manhattan. Seven months after two undercover NYPD officers successfully sold stolen electronics at his laundromat, Cho was served a no-fault eviction notice. Despite not being involved in the alleged crimes, New York City attorneys threatened to permanently close the laundromat unless Cho waived some of his constitutional rights by consenting to warrantless searches, giving law enforcement unrestricted access to video surveillance systems, and agreeing to any future criminal penalties without a hearing. The terms remain even if Cho sells the business, rendering it essentially worthless.
Cho is now one of three plaintiffs in a federal-class action lawsuit filed by the Institute for Justice. If successful, the lawsuit would invalidate any case in which the city used the threat of eviction to coerce New Yorkers to waive their Constitutional rights. This case would provide necessary protections to lessees who are currently not protected by Supreme Court precedent because they do not own their property.
Perhaps in response to public outcry and the lawsuit, the New York City Council has proposed legislation to amend the ordinance to better protect the innocent. The Nuisance Abatement Fairness Act contains 13 separate measures which include: allowing defendants to appear in court before their home or business is closed, verifying that a property is still a nuisance, eliminating lifetime bans from a property, and establishing a statute of limitations for these cases.
While both this law and the lawsuit would provide some relief from this oppressive ordinance, they fail to address many of the overarching problems. Pursuing criminal accusations under the guise of civil law is dangerous for the innocent. Not only is there an obvious lack of protections for defendants without any guaranteed right to an attorney, there is also a concerning lack of oversight.
It is obviously important for a city to be able to shut down locations that are frequent sources of illegal activity. However, enforcement agencies cannot disregard constitutional protections while doing so. In most localities, landlords can address concerns about illegal activity and involve authorities if problems persist. Giving landlords greater freedom to address concerns, increasing transparency of proceedings, and handling evictions for criminal offenses in criminal court would all work to better protect residents and business owners while still controlling crime.
When innocence is no longer a valid defense, something is very wrong. New York needs to address abuse of nuisance evictions without delay.
Allie Howell is a contributor to Economics21.
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