In NYC if the Police Seizes Property It Belong to Them Even if Found Not Guilty
It could be a licensed gun, car, money or a Toaster. They will keep it and resell it.
Innocent New Yorkers are being ripped off by the NYPD's arcane civil forfeiture procedure, and now elected officials are calling for the city to reexamine the mechanism that fills the city's coffers with millions of dollars every year.
"This practice is a gross violation of civil liberties, and there's no presumption of innocence," newly-elected city councilmember Ritchie Torres, who represents the central Bronx, said in an interview. Torres tells us he is pursuing legislative steps to reform the NYPD's use of civil forfeiture, including pushing the city council to hold oversight hearings.
According to an Office of Management and Budget report [PDF], the NYPD seized $5.3 million dollars through the opaque and exceedingly common process of civil forfeiture in 2013. This figure doesn't count the $8.2 million in cash and property that's considered "unclaimed," a designation that could refer to sums in which the NYPD holds money and property, but specifically declines to initiate the forfeiture process; or property the owner has decided not to pursue; or property the owner doesn't know they can claim; or a litany of other scenarios that naturally arise from such an inherently complicated process.
The Office of Management and Budget did not respond to repeated requests to clarify the term or break down the figure. Compare the combined possible total of $13.5 million from civil forfeiture to the $4.68 billion budget of the NYPD and the $68.7 billion budget of the city itself, and the rewards of forfeiture on the budget level appear minimal.
"Civil forfeiture takes away weapons of drunk drivers, and it is a financial disincentive to criminal activity," argues Roy Richter, the President of the Captain's Endowment Association, and a former attorney in the NYPD's forfeiture unit. "There's a whole slew of reasons why it's important to law enforcement."
Public defenders in the Bronx say that NYPD property clerks routinely give citizens contradictory or arbitrary instructions for retrieving their property. When they ask to see the explicit procedure, which is based on a tangle of court rulings and administrative code, the clerks refuse.
Individuals are also routinely directed to the NYPD's pension department by the clerks, despite the fact that the practice of placing forfeited assets into the NYPD pension fund was made illegal in 1995. According to thecurrent administrative code, that money is supposed to go straight into the city's general fund.
Just this past year, Gerald Bryan (whose case we profiled earlier this month) had to go through the NYPD's pension office to receive a release for the $4,800 that was seized during a warrantless search of his apartment. Several other individuals working with the Bronx Defenders were instructed that they needed to obtain a release from the pension fund as well.
"It is absolutely not the correct procedure that money should go to the pension fund. The anecdote that the money goes to the pension fund, I can't speak to that," Richter says. "The property clerk should only be sending individuals to the District Attorney for the release of their money."
Gerald Bryan, outside his home in the Bronx, where police seized $4,800 in cash from him during a warrantless search (Gothamist)
Since the administrative code governing forfeiture was written in 1881, several court rulings have modified the procedure. In 1972, the civil rights case of McClendon v. Rosetti established that the city had not been providing due process to predominantly poor and minority New Yorkers when pursuing civil forfeiture. The ruling called the 1881 admin code "unconstitutional" and asked for a lower court to lay out new procedures for the NYPD property clerk. In 1974, the lower court laid out those procedures, making clear that the property clerk must prove that the property was somehow connected to the alleged criminal activity.
Yet forty years later, the property clerks still enforce the law arbitrarily. The federal monitor designated by the court's decision in 1974 has expired, leaving no independent body with oversight over how the NYPD pursues civil forfeiture.
"Forfeiture law was mostly being used in drug cases for decades, and it was developed to take the profit out of the crime," said Scott Greenfield, a private lawyer who defended individuals accused of being involved in the drug trade in the 1980s. "Before the McClendon case, it was completely up to the NYPD whether you got your money back, but McClendon set up rules on how to claim your money, and put the burden on the NYPD to prove that the money was involved in criminal activity."
The ineffectiveness of the McClendon decision doesn't surprise one of the few defense attorneys familiar with civil forfeiture law in New York City.
"Forfeiture law has grown this way out of neglect," Greenfield said. "The biggest problem is that you now have thirty years of law that is absolutely awful. And there's never been interest among the public at large with regards to this practice, so law enforcement has just been able to get away with all these horrible laws."
The NYPD has declined repeated requests for comment. Mayor De Blasio's press office also declined to comment on the issue.
Since Gothamist published an article detailing the broken and often illegal aspects of the NYPD's forfeiture practice, two elected officials have stepped forward to express their desire to reform it.
"Not only is civil forfeiture an archaic practice, and one that has been twice ruled unconstitutional, but it specifically punishes those who are most harshly affected by the confiscation of their funds," Public Advocate Letitia James said in a statement. "The procedure for recovering funds should be simplified in the short term, and the practice itself phased-out in the long term as it presumes guilt for those who may be innocent."
"The poorest New Yorkers are at a distinct disadvantage," Councilmember Torres says. "At a minimum we should require more disclosure about the uses of civil forfeiture, and the monies obtained. I am also going to be looking into an amendment of the New York City administrative code that requires more regular reporting from the NYPD about forfeiture. This would help distinguish legitimate uses of civil forfeiture from the illegitimate ones."
Torres explained how the Community Safety Act, which became law last year, could help root out abuses like the current application of civil forfeiture. "One of the components of the community safety act is installing an Inspector General," Torres said. "They would be able to take a long look at the NYPD's use of civil forfeiture."
At one of the most progressive moments in the city’s history, a practice that has long dipped the government's hand into the pockets of its poorest citizens might finally be facing some meaningful reform.
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