A potentially massive new class-action lawsuit filed by the Institute for Justice seeks to stop the terrible practice by New York City that attempts to intimidate small business operators and renters into signing away their constitutional rights in order to avoid getting evicted as a method of "nuisance abatement."
This practice, authorized by a law passed in the 1970s intended to clean up Times Square, has been exposed as a source of abusive police and city behavior against citizens. All police have to do is find evidence that a crime might have taken place on a property in order to threaten people with eviction. The way the law is worded doesn't require a conviction or even charges for the city to move forward. It's not unlike the abuse-prone civil asset forfeiture programs where police attempt to seize cash and property from people for mere suspicion of criminal activity.
A media investigation back in February exposed how this alleged "nuisance abatement" program has resulted in hundreds of people being ejected from their homes by the New York Police Department, but there frequently were no convictions for any crimes, and in some cases, not even charges.
This week the Institute for Justice (IJ) filed a class-action suit to try to stop some of the coercion embedded in this program and its lack of due process. The police and New York City often use the threat of eviction to try to intimidate people into signing away their property rights, their due process, and even the right to decide who may live with them.
IJ is representing three plaintiffs at the start. Sung Cho owns a laundromat targeted by police, and David Diaz and Jameelah El-Shabazz are renters. IJ's announcement of the lawsuit focuses on Sung's experience:
On a cold December morning three years ago, Sung Cho showed up to open his laundromat business in Manhattan and found a bright orange eviction notice attached to the window. The notice said he had just a few days to prepare for a hearing—scheduled for Christmas Eve—where he would have to convince a judge that his business should not be closed. Sung soon learned that he was threatened with eviction because undercover New York police officers came to the laundromat and offered to sell stolen electronics. Two people took the bait, though neither had any connection to Sung's business.
Sung was the target of the NYPD's no-fault eviction program, which punishes businesses and residents when somebody else—even a total stranger—commits a crime on or near their property. The program allows the NYPD to evict tenants, no conviction required.
Neither Sung, nor his business or employees were implicated in the sting. But that didn't matter, as innocence was not a defense under the city's ordinance. Sung could be evicted simply because his business was the site of a crime.
But there was a way for Sung to save his business, the city told him:
The city would drop the eviction action if Sung agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow NYPD to impose future fines and sanctions for alleged criminal offenses at the business without any opportunity for a hearing before a judge. Faced with no other option, Sung signed the agreement.
IJ's lawsuit is aiming to block this sort of intimidation and to force New York City to stop threatening citizens with eviction unless they sign away their constitutional rights.
Reason spoke with Robert Everett Johnson, an IJ attorney handling the lawsuit. They're not sure how many New Yorkers might be able to join the suit, but the report from February found nearly 150 cases where residents either gave up leases or were banned from homes without having been convicted of a crime. That was over a period of just 18 months. Given how old the law is, Johnson figures there are "hundreds or even thousands of cases" where New Yorkers were intimidated into giving up their property rights.
The two other cases IJ is representing show how the system harms renters. David Diaz's home was raided by police, who arrested many of his family there for a memorial for his mother. Police found a small amount of crack cocaine in the raid. While they couldn't prove the cocaine belonged to any particular person, they threatened Diaz with eviction unless he agreed to prohibit a number of his family members from setting foot in the home, Johnson said. This included his brothers, who assist him by babysitting his daughter (Diaz is a single father). One of the brothers, Johnson said, is currently homeless. Diaz would allow his brother shelter at his home, but he can't because of this settlement with New York.
The case of Jameelah El-Shabazz is even more absurd. Police raided multiple apartments in her building due one resident apparently dealing drugs, Johnson said. In her apartment, police found paper cups containing crushed eggshells. El-Shabazz is a practitioner of the religion Ifá and the eggshells were part of a religious ceremony. The police assumed the eggshells must be drugs and arrested her and her son and took them to Riker's Island. Drug testing subsequently proved El-Shabazz's innocence and she even got a $37,500 settlement from the city over her arrest.
Neverthless, she has been targeted under the city's eviction code because of this "drug arrest," a month after the city settled it, unless she agreed to barring her son from her home. IJ believes the city is "robo-filing" these orders without examining them.
Why would residents agree to signing their rights away so easily? Johnson explains that the police get these eviction orders and present them to targets before they have any opportunity to get a hearing. Then the city or police make demands.
"If you say no, the risk that you run is that you will immediately be made homeless," Johnson said. That makes it very hard for poorer renters or small business owners to resist.
"Nobody should be forced to waive constitutional rights by threat of eviction," Johnson said. "The remedy we're seeking is for the court to declare that these past agreements are invalid and can't be enforced."
Read more about the case here.