How The NYPD's Use Of Civil Forfeiture Robs Innocent New Yorkers

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By Max Rivlin-Nadler in News on Jan 14, 2014 1:25 PM

 
Gerald Bryan points out where police damaged his apartment during a warrantless raid. In the course of the search, $4,800 was confiscated from him through civil forfeiture. (Max Rivlin-Nadler / Gothamist)

In the middle of the night in March of 2012, NYPD officers burst into the Bronx home of Gerald Bryan, ransacking his belongings, tearing out light fixtures, punching through walls, and confiscating $4,800 in cash. Bryan, 42, was taken into custody on suspected felony drug distribution, as the police continued their warrantless search. Over a year later, Bryan's case was dropped. When he went to retrieve his $4,800, he was told it was too late: the money had been deposited into the NYPD's pension fund. Bryan found himself trapped in the NYPD's labyrinthine civil forfeiture procedure, a policy based on a 133-year-old law which robs poor New Yorkers of millions of dollars every year; a law that has been ruled unconstitutional twice.

"They do this all the time, to so many people I know," Bryan, a bartender of 21 years, told us in the office of the Bronx Defenders. Before the raid, he had planned on using the cash to take his girlfriend on a cruise. "A lot of people, when they get arrested, they know that their money is just gone, and they know that the police are taking it to enrich themselves."

Civil forfeiture, the act by which a municipality can seize money during an arrest, has always been a controversial weapon of law enforcement. The practice became more prevalent in the 1980s, when jurisdictions around the country began pursuing cases involving money in both civil and criminal court in an effort to fight organized crime and deprive criminals of their income, even if they couldn't imprison them.

This summer The New Yorker published a sprawling investigation on how cities use the practice to bolster their cash-strapped coffers by seizing the assets of the poor, often on trumped up charges.

The same is true in New York City, where the civil forfeiture process has long been used by the NYPD to seize money from those least likely to be able to get it back.

"It's very difficult for the victims of civil forfeiture, most of whom are from a lower socio-economic class, to do anything in the court system, much less win a civil forfeiture case," said attorney David B. Smith, the nation's leading expert on forfeiture law.

Any arrest in New York City can trigger a civil forfeiture case if money or property is found on or near a defendant, regardless of the reasons surrounding the arrest or its final disposition. In the past ten years, the NYPD has escalated the amount of civil forfeiture actions it pursues as public defense offices have been stretched thin by the huge amount of criminal cases across the city. 

"One of the main problems with civil forfeiture is that you're not assigned a lawyer, it being a civil and not a criminal case," Smith explains. "Most people can't afford lawyers, and that gives the government a tremendous advantage."

NYPD surveillance in Crown Heights (via Flickr user Ken Stein)

When asked about Gerald Bryan's case, a spokesman for the Comptroller's Office said that the NYPD's practice of depositing money confiscated through civil forfeiture into the police pension fund was "illegal." This mischaracterization demonstrates the depth of misunderstanding about the city's civil forfeiture laws.

New York State has regulations that govern forfeiture proceedings for the city’s District Attorneys, and they provide a good amount of protection for citizens against abuse. However, the city's administrative code, which governs the NYPD's seizure of property from arrestees, remains as it was when it was drafted in 1881.

In 1993 and 2000, judges ruled the code unconstitutional, and ordered the city to rewrite the statute to make it comport with the rule of law. Yet there's been almost no legislative attempt to bring the city's administrative code into the modern age, as lawmakers are wary of touching the forfeiture issue, fearful that it will make them look soft on crime.

"1881, think about it! Think how much the world has changed since 1881," said Steven L. Kessler, the former head of the Bronx District Attorney's forfeiture unit. "The NYPD uses confusion about the code to take money from people who didn't do anything. There is a cash incentive for the NYPD to take the money—it goes to their pension, it can even be used to buy equipment, to throw parties. You see a nice car parked outside of a precinct? That's the result of civil forfeiture. Now it's theirs."

Seizing money obtained illicitly is a significant crime-fighting (and funding) mechanism for the NYPD. But according to Kessler's research, in 85% of forfeiture cases pursued by the NYPD, the property owner is never charged with a crime. Despite their innocence, many of these people face an uphill battle against the NYPD to get their money back.

In another case being worked on by the Bronx Defenders, an individual we'll call Morris (his identity is being protected because his civil case is ongoing) was arrested for felony possession of a controlled substance in October of 2012, and had $3,000 seized from him. But the District Attorney's office only ended up charging Morris with disorderly conduct, a violation. The DA declined to pursue Morris' money, but the NYPD had no such reservations.

"What's crazy about this case is that the DA's office made clear through their actions that they didn't think this was a legitimate drug sale and that a waiver of currency was not necessary," Morris' lawyer, Scott Simpson, told us. "To them, the money was legit. But still, the NYPD has his cash."

 

The NYPD does not keep public records of how much money or property it seizes through civil forfeiture, nor does it publicly account for how that money and property is spent or allocated. Based on the sheer volume of cases that the department pursues, experts estimate that the amount the NYPD has taken from New Yorkers over the past decade is well into the millions. 

The NYPD has also refused to show public defenders the exact legal mechanism that allows them to seize their property.

"It is unclear how exactly Mr. Bryan's money ended up being placed in the NYPD Pension Fund," Vichal Kumar, Bryan's public defender, wrote in an email. "One possibility is that there are other internal agreements or memorandums that are not public knowledge that supplement the provisions of the statute and allow for such distributions. Though I would suspect that without further litigation, it may never be known exactly how this occurred."

In June 2013 Bryan finally got a check for $4,800 from the city. However, the money returned to him was not deducted from the police pension fund. It was taken from the city's general fund. Mr. Bryan was paid back in taxpayer money.

"What do they say in Casablanca? I'm shocked, shocked, that the corporation counsel didn't communicate fully with the Comptroller's office. They probably just told them to write a check," Kessler said.

The City's Law Office declined to comment specifically on Bryan's case, but did not deny that the money that had been paid to him came not from the NYPD, but from the general fund.

The NYPD did not respond to questions concerning its use of civil forfeiture. 

"Despite the Federal courts knocking down the city's forfeiture law down time after time, lawmakers just let the NYPD deal with it, and that's been a disaster," Kessler said.

"The answers lie in the [NYPD's] books," Bryan says. "You open that up, and it's going to be a Pandora's Box on just how much the NYPD has illegally taken from New Yorkers."

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NYPD Legal Bureau | Civil Enforcement Unit

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The Civil Enforcement Unit (CEU) uses civil litigation in both judicial and administrative venues to expand the NYPD’s ability to respond to crimes and quality of life issues.  CEU attorneys work with enforcement personnel to address crime trends and conditions (e.g., firearms, driving while intoxicated, narcotics, prostitution, weapons, trademark counterfeiting, auto crime, and gambling).  CEU attorneys regularly participate in field enforcement operations, including the execution of closing orders under the nuisance abatement law and participation in multi-agency enforcement operations to target crimes and safety conditions associated with businesses engaged in the sale of alcoholic beverages (whether licensed or unlicensed). The CEU incorporates attorneys into the Department’s crime fighting effort.  By working closely with police commanders, CEU attorneys expand the Department’s range of responses to crimes and quality of life offenses.  By litigating civil actions such as nuisance abatement and forfeiture cases against criminals, the Unit is able to address crime and quality of life offenses by removing the economic incentive to engage in these offenses. One of the CEU’s main forfeiture initiatives focus on vehicles used during crimes involving illegal firearms.  The CEU utilizes the forfeiture case to enhance the Department’s goal of reducing the number of illegal firearms on the streets by adding an additional economic incentive for people to not transport illegal firearms in their vehicles as well as by working with detective squads to develop information that will lead to further seizures of illegal firearms.  In its other main forfeiture initiative, the CEU also takes a very effective role in deterring people from driving while intoxicated.  While CEU attorneys aggressively pursue forfeiture of the vehicles used by repeat offenders or in egregious circumstances, CEU allows many offenders to retrieve their vehicles pursuant to a forfeiture settlement agreement which involves evaluation of the offender for alcohol abuse by an independent state-certified counselor and the completion of any recommended treatment prior to the release of the vehicle.  This dual approach has proven to be a very effective tool for increasing public safety on the streets as well as encouraging people who need assistance to seek and obtain it.  Another CEU initiative, “Operation Losing Proposition,” focuses on the seizure and forfeiture of the cars of “johns”, the prostitutes’ customers, thereby deterring street prostitution.  Other examples of the Unit’s forfeiture work include forfeiting the expensive tools of chop shop operators, vehicles involved in dangerous drag racing on public streets and vehicles of individuals who are found to be in possession of controlled substances or marijuana in their vehicles after a lawful stop.  The list of examples is without end as the CEU is legally authorized to pursue forfeiture of any property which was used to facilitate a crime or constitutes the proceeds of a crime and the list grows as crime conditions change. CEU has also played a role in addressing noise conditions throughout the City by working to ensure that “boombox” cars and loud motorcycles are seized and held until noise violations have been adjudicated. Using the Nuisance Abatement Law, the CEU effectively addresses the problem of drug sales in commercial buildings.  Many of these buildings are infested with narcotics activity and other crimes which are a destabilizing influence on a neighborhood. Working with precinct and narcotics commanders, the CEU obtains closing orders for commercial properties which are operated by drug dealers.  In order to reopen, the landlord must select new tenants who are approved by the Department.  CEU also obtains closing orders under the Nuisance Abatement Law to address other crimes, including but not limited to, the sale and/or possession of stolen property; the sale and/or possession of drug paraphernalia; illegal gambling activity; the illegal sale of alcoholic beverages (e.g. unlicensed, to minors or “afterhours”); unlicensed security at bars and clubs; prostitution; illegal sale of weapons; unlicensed vehicle dismantling; and sale and/or possession of counterfeit merchandise. Contact information for the Civil Enforcement Unit of the NYPD Legal Bureau: 2 Lafayette Street, 5th Floor New York, NY 10007 Attn: Civil Enforcement Unit, NYPD Telephone: (917) 454-1100 Inquiries with regard to seized vehicles should be directed to (917) 454-1111.  Please call in advance to check the status of your case and for hours of operation.