City Council members are expected to introduce legislation Wednesday that would significantly change how the NYPD uses the decades-old nuisance abatement law against homes and businesses where cops say crimes have occurred.
The Nuisance Abatement Fairness Act includes 13 bills sponsored by Speaker Melissa Mark-Viverito and several other Council members after an investigation by the Daily News and ProPublica exposed widespread abuse of the law.
The city enacted the law in 1977 to combat the sex industry in Times Square during its heyday as a red light district. The police have since used the civil mechanism to fight many other vices, including violent bars and clubs, drug trafficking and illegal gambling.
Bill Bratton, during his first tenure as the city’s top cop, called nuisance abatement “probably the most powerful civil tool available,” allowing officers to “sweep down on a location and close it without warning.” He was referring to the law’s provision for ex parte orders — the legal term for an order sought without the other party present.
But The News/ProPublica analysis of 1,162 cases filed during an 18-month period found the NYPD frequently used the powerful tool against entire households over low-level drug charges that were ultimately dismissed. The law was also used against bodegas caught selling beer to underage auxiliary officers.
In order to get the closing orders lifted and avoid permanent eviction, tenants often agreed to stringent provisions, such as the exclusion of specific family members for life, steep fines and unannounced warrantless searches.
NYPD uses ‘nuisance’ law to boot hundreds from homes
The targets were almost exclusively located in black and Hispanic neighborhoods.
“I’m glad that they’re making the changes. I mean, it’s a little too late for me, but I’m glad that they’re making the changes,” said Jameelah El-Shabazz, a Bronx mother who had to permanently bar her adult son from her home to lift a residential closing order in a nuisance case.
Police had claimed they found a small amount of marijuana and 45 cups of cocaine during a search of her apartment in 2011, but a lab test came back negative on the powder. El-Shabazz said it was crushed eggshells she uses in a spiritual ritual.
The district attorney never pressed charges, but the NYPD still claimed the 45 paper cups contained cocaine in nuisance filings drafted several months later.
Mark-Viverito said booting people from their homes using nuisance abatement actions should be reserved for “extreme situations.”
“It’s not being done that way,” she said. “The laws are currently overly broad, and all this (the proposed legislation) does is just really narrow the scope to be very, very specific.”
The bills would eliminate ex parte orders, meaning that a judge could only close a location after a hearing with both parties.
NYPD targets immigrant shops with nuisance cases
The legislation would also make it harder for the police to bring an action over alleged drug activity, which constitutes the vast majority of cases against residents.
Under the new proposals, the required number of instances of drug activity would increase to four from three, and an officer must be present during at least one instance where there was evidence of a drug sale. This would eliminate cases based entirely on the word of confidential informants, or where searches had only turned up evidence of drug possession. The police would also need to include lab tests as exhibits.
“Obviously we want to delineate and make sure there’s a clear-cut case that is really built on sale of drugs and not actual possession,” Councilwomen Vanessa Gibson (D-Bronx), chairwoman of the Public Safety Committee, told The News.
Gibson’s committee will hold a hearing on the bills Nov. 2.
The News and ProPublica found numerous cases where residents agreed to give up their leases or ban specific family members from their homes for life — even when they weren’t prosecuted for a crime.
‘Nuisance’ Unit was reckless, skirted law: ex-NYPD attys
The legislation would also curtail the punishments police could inflict on residents.
Under the proposed changes, a resident could only suffer “the least restrictive means” to ensure the cessation of the nuisance, and the maximum amount of time a person could be excluded from a home would be a year, or three years in the most exceptional cases. The bill would also prohibit the police from restricting the rights of any person who was not aware of the alleged nuisance activity.
The News and ProPublica found bodegas in certain neighborhoods, such as East Harlem in Manhattan and Wakefield in the Bronx, were being hit hard with nuisance cases over alleged underage alcohol sales while still being punished by the State Liquor Authority. Businesses in other precincts accused of the same offenses were only being punished by the state. The proposed changes would eliminate the duplicative punishment.
Under the Council bills, in order to close a business accused of selling alcohol to minors, police would need to document four sales, instead of just one under the current law. Officials said the changes would not prevent cops from aggressively pursuing illegal activities surrounding the sale of K2, better known as synthetic marijuana.
Police Commissioner James O’Neill has not yet seen the Council package, according to a spokesman. But in an earlier statement O’Neill called nuisance abatement “one of many important tools we use as part of precision policing.” Mark-Viverito said she’s found O’Neill in their conversations to be open to legislative reforms.
“I’ve dealt with the two prior commissioners,” Mark-Viverito said, “and definitely there’s a whole different approach here, and more openness to engaging, to listening, and figuring out ways that we can solve these issues, and legislation being one option.”
The Council legislation would also require the NYPD and the city Law Department to issue regular reports of its nuisance activity to ensure the actions are being used fairly.
“That’s an overall concern, that communities of color are over-policed or that the law applies differently depending on your zip code,” Mark-Viverito said.
A business owner and two tenants filed a federal lawsuit last week seeking class-action status, arguing the NYPD has routinely misused the nuisance abatement law to strip people of their constitutional rights.
