The New York City Police Department is evicting people out of their homes, even if they haven’t committed a crime. And it’s happening almost exclusively in minority neighborhoods
By Sarah Ryley
The morning of May 4, 2011, Jameelah El-Shabazz watched out of the window of her Bronx apartment as a team of police officers fanned across the rooftop of Banana Kelly High School. The 43-year-old mother of five said she didn’t think much of the scene—drug raids were common in her neighborhood.
As she did most mornings, El-Shabazz said she went to her bedroom to feed her newborn son and to worship before a shrine of candles and carvings arranged atop her wardrobe. Her most treasured object was a wooden tray her father had brought her from Nigeria. A deity of the Ifa religion, which she practices as a high priestess, was carved on its surface and covered in a residue of finely crushed eggshells. El-Shabazz used the substance, known in her faith as efun powder, to cleanse the shrine. She took fresh clumps of the powder from a cup and began to break it up in her hands.
That’s when the narcotics officers kicked in the door.
Her baby shrieked as the gun-wielding officers tore apart rooms looking for PCP, which an anonymous informant had claimed was being sold from the apartment. They ordered everyone to lie on the ground, then turned to her eldest son, Akin Shakoor, who along with another son was having frequent run-ins with police. El-Shabazz said the officers told Shakoor if he didn’t give up the drugs, “they would take all of my children away from me and make sure that I was put out of my apartment”.
As evidence, police seized 45 paper cups of the eggshell powder, the sacred wooden tray, and a small amount of marijuana. They arrested El-Shabazz, her teenaged sister Najah El-Shabazz, and Shakoor, then 21, and took them outside past the handcuffed residents of four other apartments that were raided that morning.
Najah was released, court filings say, but Jameelah El-Shabazz and Shakoor sat in cells on Rikers Island for the next week awaiting the results of police lab tests. Finally, the results confirmed what she had told the officers all along: the wooden tray and the 45 paper cups of powder were drug-free. Jameelah El-Shabazz and Shakoor were released from Rikers and fully exonerated.
But El-Shabazz’s battle with New York’s legal system was only beginning. That September, another of her sons called to say the police were back, this time with a lawyer and a court order to seal the Bronx apartment. Her entire family had to leave—immediately.
El-Shabazz was facing a nuisance abatement action, a little-known type of lawsuit that gives the city the power to shut down places it claims are being used for illegal purposes. The case against her was based on the same drug allegations that had been dismissed in May. Incredibly, the filing, signed by a New York Police Department attorney, stated: “recovered during the execution of the search warrant were forty-five (45) paper cups of cocaine.”
The nuisance abatement law was created in the 1970s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences.
The process has remarkably few protections for people facing the loss of their homes.
Three-quarters of the cases begin with secret court orders that lock residents out until the case is resolved. The police need a judge’s signoff, but residents aren’t notified and thus have no chance to tell their side of the story until they’ve already been locked out for days. And because these are civil actions, residents also have no right to an attorney.
Perhaps most fundamentally, residents can be permanently barred from their homes without being convicted or even charged with a crime.
In partnership with ProPublica, the Daily News reviewed 516 residential nuisance abatement actions filed in the Supreme Court from January 1, 2013 through June 30, 2014. Our analysis also reviewed the outcomes of the underlying criminal cases against hundreds of people who were banned from homes as a result of these actions.
-173 of the people who gave up their leases or were banned from homes were not convicted of a crime, including 44 people who appear to have faced no criminal prosecution whatsoever.
-Overall, tenants and homeowners lost or had already left homes in three-quarters of the 337 cases for which the Daily News and ProPublica were able to determine the outcome. The other cases were either withdrawn without explanation, were missing settlements, or are still active.
-In at least 74 cases, residents agreed to warrantless searches of their homes, sometimes in perpetuity, as one of the conditions of being allowed back in. Others agreed to automatically forfeit their leases if they were merely accused of wrongdoing in the future.
-The toll of nuisance abatement actions falls almost exclusively on minorities, our analysis showed. Over 18 months, nine of 10 homes subjected to such actions were in minority communities. We identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white.
Runa Rajagopal of the Bronx Defenders, who leads a division that represents people in the civil courts, called the practice a “collective punishment” on the entire family of those accused of a crime, “used by the NYPD to exert power and control largely over communities of color.”
The NYPD declined to answer any questions about specific cases. Officials emphasized that because these are civil cases, they’re handled separately from criminal cases and thus have lower standards of proof.
“The law does not require criminal conviction, does not require [a] particular disposition of a criminal case, does not even require an arrest of anyone,” said Lawrence Byrne, the NYPD’s Deputy Commissioner of Legal Matters in an interview with the Daily News last year.
Assistant Commissioner Robert Messner, who heads the NYPD’s Civil Enforcement Unit, concurred, saying, “You have to remember, it’s an action about a place. It’s not about people.”
The narcotics officer behind nuisance abatement cases against El-Shabazz and others, Detective Peter Valentin, has his own history. The Daily News earlier identified him as the most-sued officer on the NYPD’s 35,000-member force. Valentin was put on desk duty in 2014 for allegedly fabricating buys from confidential informants.
The NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones.
This decades-old approach — which has introduced large numbers of black and Hispanic New Yorkers to the criminal justice system through stop-and-frisks, summonses and misdemeanor arrests — has touched off waves of protests in recent years.
Though little heard of, nuisance abatement actions have long been a key component of the strategy. William Bratton, fresh into his first tenure as the city’s top law enforcement official, hailed such actions in a 1995 white paper on quality-of-life policing as “probably the most powerful civil tool available to the police,” allowing officers to “sweep down on a location and close it without warning.”
Since Bratton wrote those words, the number of nuisance abatement actions filed each year has quintupled.
Bratton was hired back as police commissioner in 2014. While he has significantly reformed other aspects of quality-of-life policing, the department does not appear to have adjusted its policies when it comes to nuisance abatement actions.
Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.
“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”
In most other cities, officials can’t initiate a nuisance abatement action unless they’ve given landlords the opportunity to solve problems first. Authorities can only restrict access to a home after a court process that involves all parties.
But in New York, the NYPD begins nearly every nuisance abatement action by making an emergency appeal to a civil court judge without the landlord or tenant present, alleging the dangers a residence poses. Affidavits detailing three instances of a particular crime, such as drug dealing or gambling, in a one-year period are enough for a judge to authorize an action.
The allegations can be based entirely on the work of confidential informants or undercover officers and need not have led to arrests. The Daily News and ProPublica identified 17 nuisance abatement actions against residences and 64 against businesses in which no arrests were documented.
When they file a case, the police always ask the judge for permission to lock out the occupants of the residence until the case is resolved. These requests for what’s known as “temporary closing orders” state that the location is being used in an “ongoing illegal manner,” and that the “public health, safety and welfare require immediate abatement of the public nuisance.”
However, the New York Police Department’s court filings routinely do not describe the alleged “ongoing” illegal activity that would justify immediately throwing people out of their homes. Instead, the Daily News and ProPublica analysis found, police filings describe purported offenses that occurred, on average, at least five months earlier for businesses and six months earlier for residences.
Judge Fern Fisher, the deputy chief administrative judge for the city’s courts, expressed concern. “If it’s six months old, then it’s not all that much of an emergency that you can’t wait three or four days for the (other) party to come in and tell their side of the story,” she said.
Luis Rivera, 58, was shut out of his apartment in the Bronx for nearly a month in 2013 while he fought his case. It alleged the requisite three violations: Five months earlier, police said a confidential informant had bought heroin at the apartment on two occasions. Shortly thereafter, during a raid on the apartment, police said they found seven small paper envelopes of white powder, a marijuana cigarette and two gravity knives. They arrested Rivera, along with two other men who were staying with him.
Rivera was described by people who knew him as having significant mental and physical impairments. One woman, who asked not to be named, said she let Rivera sleep on a chair in her studio apartment after the nuisance abatement action left him homeless. She said the officers should have known he was too sick for the streets.
“He was not doing good at all,” she said. “He had cancer; he was on the transplant list. You could tell he was very sick. There were times when he didn’t remember what was what. He would shit on himself and everything.”
In court filings, Rivera said he did not understand what was happening when the police arrested him a second time as they served him with the nuisance abatement action. When he was released, he simply went home, then was arrested a third time for violating a temporary closing order.
“My understanding was that I could go back to my apartment because I was given my keys. I was handed some papers but I am not able to read or understand them on my own,” he said in an affidavit filed through his attorney, Rajagopal. “I am still very confused as to how or why the police were able to evict me from my home without a hearing or trial.”
The criminal charges against Rivera and the other two men were eventually dismissed, and Rivera was allowed back in his apartment after signing a settlement with strict terms limiting who could visit.
He died last September.
The nuisance abatement law arose from New York’s downward spiral during the 1970s. At the time, Sidney Baumgarten, a top aide to Mayor Abe Beame, was leading a campaign to rid Times Square of streetwalkers, pimps and peep shows. Conventional law enforcement tactics had been as effective as a game of whack-a-mole. Arrest a petty lawbreaker; watch another one pop up.
Baumgarten, who gamely sported a big white button that read “Vice President in Charge of Vice,” searched for more creative solutions. Using the city’s zoning and public health laws, he unleashed code inspectors on seedy establishments. After enough violations and arrests, he would file suit in civil court to shut down the businesses for a year.
But the process was cumbersome. The city prevailed only after giving notice to tenants and winning protracted court battles. With advanced warning, proprietors of brothels had enough time to move to new locations. Even the fleabag Belmore Hotel, where a teen prostitute was strangled to death with her gold chain necklace in 1975, continued business as usual for a year until the city won its case.
Baumgarten commissioned the drafting of the nuisance abatement law in the summer of 1976 to address these shortcomings. The law defined 12 categories of violations — including prostitution, illegal gambling and drug sales – that could trigger enforcement actions. Most notably, the city could surprise businesses with temporary closing orders secured in secret court hearings. During the closure, police could go room-to-room inventorying people and paraphernalia.
After the law was enacted in 1977, the city put it to swift use. Within five years, the mayor’s office shuttered 100 sex businesses in Midtown, reducing the number by nearly half, according to city archives. But some officials felt the law was being used too narrowly, focusing on only one problem in one area at a time when many neighborhoods were engulfed in crime.
In 1991, during Raymond Kelly’s first tenure as police commissioner, the city allowed the NYPD to initiate nuisance abatement actions with its own lawyers. The move was part of the police department’s Civil Enforcement Initiative pilot project, led by Messner, which focused on a few precincts outside the city center. The initiative was widely credited with bringing down crime and was soon expanded citywide.
In the early 1980s, documents show city officials believed they needed criminal convictions — not merely accusations or arrests — before initiating nuisance abatement actions. But by the time the NYPD started bringing its own cases, the courts had interpreted the statute’s wording to mean that wasn’t necessary.
The NYPD has since dramatically expanded the law’s reach, wielding it against drug dealers, underground gambling dens, illegal chop shops, fencing operations, after-hours clubs, counterfeit handbag hawkers, and bodegas selling alcohol and cigarettes to minors. Last year, the City Council passed legislation that added selling K2, a highly addictive form of synthetic marijuana, to the list of offenses that could lead to nuisance abatement actions.
The number of nuisance abatement cases filed by the NYPD grew from 214 in 1994 to 1,082 in 2013. The department would not disclose the number of cases it filed in 2014 and 2015.
Jameelah El-Shabazz didn’t lose her apartment in the Longwood section of the Bronx as a result of the nuisance abatement action filed against her in September 2011.
Two days after she was shut out of her home, she reached a settlement with the New York Police Department. She agreed to bar her oldest son, Akin Shakoor, for life — even though the district attorney had dropped the criminal charges against them four months earlier, and court filings say they received city payouts totaling $37,500 stemming from the raid.
During settlement negotiations in the nuisance abatement case, the NYPD’s attorney said he could still use evidence against Shakoor that a confidential informant had bought drugs from the home, El-Shabazz’s attorney said. To challenge that, the family would have had to demand a hearing before a judge — and to wait to get back into the apartment.
“If you did that they probably couldn’t produce the witnesses or anything like that,” said Jonathan Levy, her attorney. “But in the meantime you’re locked out of your house… and that’s just incredible leverage.”
Even after agreeing to bar her son, El-Shabazz had to fight a separate eviction case in Housing Court initiated by the Bronx District Attorney’s Office, and an administrative hearing over her Section 8 benefits, both prompted by the same dismissed drug allegations.
El-Shabazz remains defiant about the nuisance abatement case, insisting she would never banish her son from her home even though it’s clearly written in the agreement she signed. “Never am I going to tell my son that I’m still raising that he can’t come to my house,” she said. “Who does that? I’m not doing that.”
Levy said it’s possible the experience was so traumatic she didn’t fully grasp what happened.
“Getting locked out of your home without warning is as traumatic as losing a job, witnessing a shooting, being robbed, any number of things that violate your sense of personal integrity and safety,” Levy said. “In general, I think it’s one of the most pernicious things about using this law against residential properties as opposed to commercial.”
Additional reporting and research by Barry Paddock of the New York Daily News; and Edwin Torres, Christine Lee, Pia Dangelmayer and Andrea Hilbert, special to ProPublica. Production by Hannah Birch, Rob Weychert, and David Sleight.