The NYPD told the City Council today it is “supportive” changing nuisance abatement law to make it tougher for cops to close down establishments where alleged illegal activity has taken place—but stopped short of backing new legislation advocates and Council members have proposed to end what they call the unfair shuttering of businesses in nonwhite neighborhoods.
The Nuisance Abatement Fairness Act—sponsored by City Council Speaker Melissa Mark-Viverito and other Council members—is a package of 13 bills that would eliminate the simple possession of drugs from the definition of nuisance, shorten the statute of limitations for nuisance abatement actions and eliminates ex parte orders, where locations get shut down without the owners or tenants being given notice of the order or being given the opportunity to defend themselves in court. Speaking at a hearing of the City Council’s Public Safety Committee this morning, Assistant Deputy Commissioner Robert Messner, who heads the NYPD’s Civil Enforcement Unit, said he agreed generally with the idea of tightening the focus of the law and possibly limiting its application.
But he indicated his agency and Mayor Bill de Blasio could not endorse the legislation in its present form.
“The department is supportive of the concepts behind many of these proposals and more broadly the goal of reforming the nuisance abatement law,” Messner said, leaving the door open to further negotiation between the Council and the administration. “We look forward to further discussions with the Council to find the right balance between ensuring fairness and the ability to proceed to provide expedited relief to communities through the use of this valuable precision policing tool.”
A report by Pro Publica and the New York Daily News found that the NYPD would often have undercover officers pose as customers or illicit vendors to catch people violating the law at a business., then used the nuisance abatement statute to close the shop down. The study alleged the department targeted immigrant-owned shops in predominantly minority neighborhoods.
Messner said the NYPD still has concerns about increasing the number of violations required before a nuisance abatement action can be initiated and significantly reducing the time frame within which the violations have to occur before cops can bring the clampdown . He also took issue with a requirement that the Police Department verify within 15 days of operation that an offender is still present at a targeted location.
Enacted in 1977, the nuisance abatement law was designed to provide direct and immediate relief to neighborhoods impacted by crimes deemed public nuisances: gun crimes, prostitution, gambling, drug dealing, sales of stolen or counterfeit merchandise and violations of the Alcoholic Beverage Control Law.
Mark-Viverito said she believes the law is an important tool for the NYPD and other city agencies and that it effectively addresses illegal behavior of concern to many neighborhoods when used appropriately. But she argued that when abused, it creates unnecessary pain and penalties.
“However, it has become clear to me over the past few months that this tool has been used in a manner far beyond how the Council originally intended it to be used, and in many cases has been used to inflict punishment beyond what is necessary to actually abate a nuisance,” she said.
Deputy Commissioner of Legal Affairs Larry Byrne testified that this year, the NYPD has brought 307 nuisance abatement actions—200 involving commercial premises and 107 involving residential premises. And from 2013 to 2015, the Police Department brought 2,609 civil nuisance abatement actions, both residential and commercial.
Addressing reporters following the meeting, Byrne dismissed the Daily News/Pro Publica report as “highly inaccurate media accounts that omitted important facts,” though he said ongoing lawsuits prevented him from publicly disputing precise details from the story. He also said that the Police Department’s standard practice has been to always look very carefully to attempt only to exclude people from premises who have engaged in criminal activity.
“There’s no instance you can point to where a nuisance abatement action was brought or ordered solely on the basis of activities of a confidential informant,” Byrne told a Daily News reporter who defended the piece. “That’s flat out wrong and you’ve misreported that deliberately.”
Queens Councilman Donovan Richards, for his part, was not pleased with Byrne’s rejection of such findings.
“I think that for you to sort of minimize the impact this has had on these families is wrong,” Richards said.