UPDATE 3:05 p.m.: Thanks for all the questions. We're signing off now but will check back in periodically for any new ones.

I’m Sidney Baumgarten, the lawyer who wrote a law in the 1970s that helped clean up Times Square. It was called the Nuisance Abatement Law. With this law, the city could surprise a problem business with a closing order, obtained at an ex parte hearing, and immediately shut it down while the case was being decided. However, today, I think the NYPD abuses it. Here’s what I recently wrote about it for the New York Daily News.

I’m Sarah Ryley, an investigative reporter with the New York Daily News. I’ve spent the last two and a half years investigating the NYPD’s use of the nuisance abatement law. In partnership with ProPublica, we reviewed 1,162 nuisance abatement cases filed against businesses and residences over an 18-month period starting in 2013. We found the NYPD frequently used the law to kick people out of their homes who were not convicted of a crime; and to threaten mom-and-pop businesses with yearlong closures over relatively minor offenses, then extract settlements that include things like warrantless searches and cameras the police can access at any time. These cases target locations that are almost exclusively located in minority neighborhoods.

We are here to answer your questions about nuisance abatement actions in New York, including how they were intended to be used, how the NYPD uses them today, and why they almost exclusively target minority neighborhoods.

Proof:1, 2

Comments: 74 • Responses: 15  • Date: 

redditorx1357952 karma

How did this law even pass given that it appears to be unconstitutional on the surface?

SidneyBaumgarten-51 karma

It isn't, wasn't and will not be declared unconsitutional. As pointed out, the provision giving the defendant an immediate hearing has been deemed sufficient.

abralincolnham5 karma

Given that the temporary closing order provision poses some pretty big due process problems, would you be in favor of either cutting it or removing residential property from the type of premises covered by the statute?

SarahRyley3 karma

City Council is considering introducing a bill that would reduce the time period the city has to request such an order -- from a year to perhaps 60 or 90 days -- and possibly to tighten the evidentiary standards.

SidneyBaumgarten-22 karma

I would like an opportunity to see the proposed amendments. I don't want an effective law to be watered down to a point where it becomes ineffective. What I am looking for is "prosecutorial discretion".

SidneyBaumgarten-13 karma

Neither. I believe in the language of the statute and it has been very effective. My concern is that there is inadequate evidence to warrant closing a premises, business or residential, when the owner or lessee is not a participant in the offense. Moreover, we had, when I was in charge at Midtown Enforcement, required convictions not just allegations or arrests.

abralincolnham7 karma

However, the statute itself does not require convictions. Do you think judges are failing to do their jobs in assessing whether or not the City has offered "clear and convincing" evidence?

SidneyBaumgarten4 karma

Yes. The judges should require more than an affidavit from a police officer except in very compelling cases.

hollowleviathan6 karma

Do you think chronic misapplication of a law such as this, ignoring the requirements for 1. "clear and convincing" evidence of ongoing activity and 2. posing an immediate threat to the community, could be grounds for impeachment of the judges involved?

SidneyBaumgarten-4 karma

Absolutely not.

hollowleviathan2 karma

Sorry, I must be misunderstanding the threshold for impeachment or the degree of foul play by the judges.

If Nuisance Abatement is supposed to require stricter more recent evidence than the probable cause of a search warrant, but is being incorrectly used by the police with judges accommodating that by deliberately ignoring the evidence requirements in the law, why is that not grounds for impeaching the judge?

EDIT: you reviewed 1,162 nuisance abatement cases. How many of them were irregular or overstepping? The impression I'd gotten from this story was that the majority of these cases were abuse of the law.

SidneyBaumgarten-2 karma

There is, in my opinion, no factual basis for impeaching anyone. Judicial discretion is unique and generally fair. And there is not indication that any of this is "deliberate" by either the police or the courts. You seem to have difficulty with judges!!

SarahRyley2 karma

I certainly think there could be an argument for that. To justify an ex parte closing order, the city is supposed to present "clear and convincing" evidence that illegal activity at the location is ONGOING and poses an immediate threat to the surrounding community. That's a much higher bar than simply presenting "clear and convincing" evidence that a crime had once been committed at the location.

SarahRyley3 karma

Our analysis found that the NYPD filed its request, on average, six months after the most recent alleged offense for residences, and five months after the most recent alleged offense for businesses.

SidneyBaumgarten0 karma

Again, if the "most recent alleged offense" is merely the "allegation", in my view that's not enough. Obtaining a conviction may take months or longer and then the City may want to take action. Another issue is this location a "chronic" problem. If so, show me!!

dukbcaaj3 karma

How big a problem is this?

SarahRyley3 karma

The NYPD files roughly 1000 nuisance abatement cases a year, although the number has fallen dramatically since we started publishing our series. We looked at 1162 cases filed over 18-months for our analysis. Roughly half were against residences, and we found 300 people who gave up their leases or were excluded from homes, sometimes for less. Less than half of those 300 people were convicted of a crime in the underlying investigation.

SarahRyley3 karma

We also looked at around 650 cases filed against businesses and found 58% cited alcohol violations.

SidneyBaumgarten1 karma

It is important to remember that the law was primarily focused on the illegal activities in midtown, mostly prostitution, human trafficking, pornography, etc. Using it for Liquor violations is especially troubling because the State Liquor Authority has its own enforcement mechanisms.

terryparrisjr3 karma

Was there a turning point in the life of this law that made it go from, as you say Sidney, a "good" law to something that the NYPD began abusing? When was that and what was that turning point?

SidneyBaumgarten-3 karma

The application of any law is dependent on good judgment by the government agency. As I pointed out in my op-ed, the NYPD has done well in implementing the Nuisance Abatement Law, but the legal work and decisions should be in the hands of the Corporation Counsel, not the NYPD.

SarahRyley12 karma

I'm surprised that you would say you think the NYPD has done well in implementing the law, since you have said you don't agree with how they are using it against businesses for alcohol violations (58% of business cases); have raised questions about some of its other undercover operations and subsequent nuisance actions, for example of massage parlors; and have said you don't agree with it being used against families (44% of all cases are residential).

SidneyBaumgarten-1 karma

I would suggest very critical analysis before using the law in residential cases. Again, if the lessee is not aware of the illegal activity, the fact that one of their children is arrested for something, may not be enough to oust an entire family. As for the alcohol violations, I am sure many are for serving to underage-----usually an undercover cop who presents a phony ID. In many of such cases it is entrapment.

abralincolnham5 karma

Given the change in application, do you think there should be changes to the statutory scheme at all? As I understand it, the law was intended to shutter sex-related businesses in 1970s midtown. Now almost half of Nuisance Abatement actions are brought against residences on the basis of stale evidence of drug activity.

The home is a hugely important private interest vigorously protected by many areas of law. Yet, in application of Nuisance Abatement law, very old evidence can serve as the evidence for pre-hearing deprivation. This seems to fly in the face of due process principles. The City has a multitude of alternative procedures in the criminal and civil law to combat low level drug crime. Ex parte deprivation requires an immediacy that is arguably impossible when the City takes weeks or months to bring an action.

SidneyBaumgarten1 karma

First, the law has been upheld many times in the courts, including the federal courts and its provisions pass "due process" muster. During my tenure--in the early days of the midtown enforcement efforts---we were not focusing much on drug enforcement. That being said, the NAL's use for that purpose is not necessarily wrong. I do believe it remains a question of proper underlying reasons and illegality as defined in the statute.

SarahRyley6 karma

I think it's interesting that the law was enacted in the 1970s, before the 1993 Supreme Court ruling that found the government may not seize a home suspected of being involved in drug activity (via civil forfeiture) without notice or a hearing: http://www.nytimes.com/1993/12/14/us/supreme-court-roundup-justices-insist-notice-be-given-drug-case-property.html

How do you think this ruling would apply to nuisance abatement?

SidneyBaumgarten1 karma

Simple: The statute meets constitutional standards by giving the defendant a hearing within 72 hours. Moreover, it is not a permanent seizure or confiscation of property until a full plenary hearing is held. No conflict with the Supreme Court.

terryparrisjr2 karma

Is it possible to put the toothpaste back in the tube, so to speak? Can this power be taken from the NYPD and put back into the hands of counsel?

SidneyBaumgarten1 karma

A simple order from the Mayor can move it to the Corp. Counsel. That's not putting the toothpaste back in the tube. As for the statistics that Ms Ryley posits, if the NYPD has done many, many NAL cases, and many of them are good and substantiated, the few where they have over-reached should not be a reason to "throw the baby out with the bathwater". Their process needs tightening up and the judges should make more critical decisions. Also, I would not meddle with the time periods in the statute as often the investigations take time to develop.

SarahRyley4 karma

But what about to justify the ex parte order? Do you think the city should be required to show more recent incidents than one year ago in order to justify going in and closing a location on an emergency basis before the occupants have had the opportunity to come to court? A good example of this is the woman whose family was kicked out of their home for four days on an ex parte order over drug allegations that were 10 months old. Serious allegations, but they were so old that the offending tenants had moved out seven months before the NYPD got its order. What safeguards do you think should be in place to protect against this happening? And do you think those safeguards should be written into the law, or on a prosecutorial discretion (honor system) basis?

SidneyBaumgarten1 karma

In my view that was simply lousy investigation or preparation if the family had long since departed. Where is the oversight? If the purpose was to end the illegal activity, it was moot. If the purpose was to punish the landlord, why? What history of that premises? Was this location a continuing problem or just a single offense? All these factors should come into play.

SarahRyley4 karma

I think the question is, should there be more written into the law to ensure these factors are addressed?

SidneyBaumgarten1 karma

No law can possibly foresee every single application or issue. it would become burdensome for the NYPD and for the courts.
What it needs is inculcating in those responsible for its enforcement a firm understanding of due process and "clear and convincing" evidence. And perhaps the meaning of fairness.