NYPD Using 'Nuisance Abatement' Law To Force Small Businesses To Install Cameras, Agree To Warrantless Searches

Legal Issues

from the the-law-with-built-in-'speed-holes' dept

Sarah Ryley at ProPublica has a fascinating, depressing, and exhaustive report on the NYPD’s apparent ongoing civil rights abuses. Under the guise of policing “nuisance businesses,” certain precincts are targeting minority-owned businesses — usually small bodegas, laundromats, etc. — with abatement actions that force owners to either lose their source of income or capitulate to the NYPD’s overreaching demands.

One business owner was hit with a “nuisance abatement” action — one which could lead to his laundromat being closed for at least 30 days — after undercover officers twice sold stolen goods to store customers. Sung Cho’s laundromat had nothing to do with either sale, other than being open for business when the sales were made. Despite Cho’s lack of culpability in the selling of stolen goods, the NYPD portrayed his business as a “facilitator” of illegal activity and hit his store with a restraining order.

As Ryley reports, the nuisance abatement program is prone to abuse, what with its one-sided court process (NYPD files complaint and asks for restraining orders without notifying the business owner or allowing them to challenge the orders) and very loose definition of “facilitation.” While the statute does provide that business owners must be given a chance to challenge an order within three business days of being presented with it, the NYPD routinely serves orders on Thursday or Friday, forcing businesses to close over the weekend, normally their busiest sales days.

The article points out that most of these orders are served by officers in precincts where the minority population is the majority, suggesting once again that the NYPD regularly engages in biased policing. A judge who has presided over abatement cases lends some credence to this conclusion.

“You never see the white bar owner from the Meatpacking District in here; it’s always some bodega owner from Uptown,” said the judge, who asked not to be named. “It’s a complete double standard.”

In terms more familiar to Techdirt’s audience, nuisance abatement enforcement is nothing more than law enforcement trolling.

Once served with nuisance abatement actions, business owners are faced with a choice. They can fight the case and remain shut down until it’s resolved, earning no income. Or they can agree to the NYPD’s demands, sign a settlement, and reopen. As a result, cases tend to get resolved very quickly.

When not using sales of stolen goods to customers to push nuisance abatement actions, the NYPD also likes to use sales of alcohol to minors as leverage — despite the fact there’s an entire arm of enforcement as well as a separate government agency in place to deal with liquor license violations. As Ryley points out, doubling up on enforcement allows the city to punish business owners twice for these violations. And some of the busts are highly questionable. The ProPublica piece contains footage of a contested sting “buy:” a two-second “interaction” in a busy convenience store where the undercover buyer obscured the beer can with his hand and tossed a dollar at a clerk who was in the middle of handling another customer’s transaction.

The ends here appears to be the expansion of the NYPD’s already-robust surveillance powers. The laundromat owner faced with losing his business agreed to the PD’s “settlement offer” — one that gave the NYPD uninterrupted, warrantless access to his place of business.

He agreed to pay a $2,000 fine, maintain cameras that the NYPD can access at any time, and to allow the police to conduct warrantless searches. If anyone is even accused of breaking the law at his business again — whether a store employee or not — he faces escalating penalties: closures that would increase from 30 days to 60 days to 90 days to a full year with each alleged offense; fines climbing as high as $15,000.

Perhaps most damaging of all, the terms continue in perpetuity, even if the business changes hands.

This isn’t an aberration. This is the standard operating procedure. Other businesses facing NYPD abatement orders have not only installed cameras and agreed to warrantless searches, but have also put $1000 credit card readers in place that store personally-identifiable info on every customer that uses them — and which all can be accessed anytime by police officers without a warrant.

An NYPD official contacted by ProPublica isn’t shy about the desire to expand the NYPD’s surveillance dragnet.

Robert Messner, who heads the NYPD’s Civil Enforcement Unit, which handles the cases, said during an interview with the Daily News in December that his unit does not keep a database of the businesses required to maintain cameras. He said their purpose is to make neighborhoods safer and to help police solve crimes.

“We want everybody to install cameras. We think that’s the greatest,” he said.

He’s also not afraid to say why he prefers nuisance abatement proceedings to other statutes the NYPD has at its disposal to handle these sorts of “problems.”

When asked about the Padlock Law in December, Messner said the last case filed under it was “15 years ago maybe.”

He said the padlock law “was a creaky old law” that cost a lot of police resources and often resulted in protracted litigation.

“This thing,” Messner said, referring to the nuisance abatement law, “is simple and elegant.”

Yes, there’s nothing more “simple and elegant” than greasing your own wheels. The “Padlock Law” — instituted during Bill Bratton’s first run at the top of the NYPD — allowed business owners to contest the orders and allegations in court before being threatened with a business closure. The new way — now more than 15 years old — deprives business owners of any meaningful form of due process, which makes it much easier to use the threat of a business shutdown to coerce owners into providing the NYPD with 24-hour warrantless access and a larger surveillance footprint.

Filed Under: nuisance abatement, nypd, small businesses, surveillance, warrantless searches