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Class-Action Lawsuit Will Challenge NYPD's Use Of Civil Forfeiture To Rob Innocent New Yorkers

Miranda Katz

Published Jun 4, 2016

Modified Jun 4, 2016

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Miranda Katz

Published Jun 4, 2016

Modified Jun 4, 2016

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Kaleb Hagos was arrested by police on September 23rd, 2015, and had $2,931.68 in cash confiscated, along with an iPhone he was carrying in his pocket. Since then, the case against him has been terminated, and his lawyers at the Bronx Defenders have repeatedly tried to retrieve his phone and money—but to date, the Bronx District Attorney's office has refused to return his property. Hagos, along with two other individuals who have had property seized and not returned by the NYPD, is now part of a lawsuit seeking class-action status that challenges the police department's practice of civil forfeiture, a policy based on a 135-year-old law that robs poor New Yorkers of millions of dollars every year.

The federal lawsuit, Encarnacion v. City of New York, was originally filed by the Bronx Defenders in January, but it's now been amended to seek class-action status on behalf of anyone who has been or will in the future be unable to secure the release of their cash or belongings from the NYPD in cases where the case is closed and the City hasn't indicated any reason to retain the property. The suit argues that in seizing and failing to return cash and cellphones to New Yorkers whose cases have been terminated, the City is violating their constitutional rights.

"Once a criminal case is over, the U.S. Constitution does not permit the City to withhold someone's personal property without justification," said attorney Eric Brenner. "This City's current policies violate the basic rights of individuals who need the cash and phones that the City is refusing to return."

In theory, if a person whose belongings have been seized presents identification, a property voucher, and a DA release, the NYPD has to turn over the property; similarly, the DA's office in theory has to issue the release within 15 days of the request, or else provide a written denial explaining why the property has to be retained. In practice, however, that deadline has been "brazenly ignored," this lawsuit alleges, and if the property owner can't get the release within 270 days of submitting a request, the NYPD can "dispose" of the seized belongings.

"We often represent low-income people whose phones and cash wages have been confiscated and spend months trying to get their money back after their case is over," said Molly Kovel, who is the legal director of the Civil Action Practice at the Bronx Defenders. "For people without access to an attorney, the hurdles they face to get their property back are simply too high, and they often give up. We hope this case leads to much-needed reform."

The City's law department said that it would not comment on the case while the litigation is pending.

Judges have twice ruled that the city's administrative code, which governs the NYPD's seizure of property from arrestees, is unconstitutional. Still, there's been little attempt to modernize that code, as many lawmakers are worried that doing so would make them appear to be soft on crime. City Councilmember Ritchie Torres, who represents the central Bronx, introduced legislation last year that would require the NYPD to give detailed annual reports on the items and money seized in arrests, but that legislation has been stalled since being referred to the council's Committee on Public Safety.

This lawsuit demands that judge declare the city has violated New Yorkers' constitutional rights in allowing the NYPD's current practice of civil forfeiture, and award damages to the plaintiffs currently listed, as well as anyone included if the suit is granted class-action status.

Tagged

bronx defenders

civil forfeiture

Encarnacion v. City of New York

nypd

Miranda Katz

Gothamist is funded by sponsors and member donations

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