Judge Smacks NYPD For Its 'Gotcha' Tactics In Forfeiture Public Records Lawsuit

from the you're-the-worst dept

Tue, May 30th 2017 6:29pm — Tim Cushing

New York's court system is finally pushing back against the NYPD's refusal to provide better accounting of its forfeiture programs. Late last year, the NYPD informed people requesting information on seizures it had no way of compiling this data for them. Its $12 million software -- meant to provide "cradle-to-grave" tracking of seized property -- apparently couldn't handle routine inquiries about seizure totals.

When the NYPD did decide to talk about its forfeiture operations, it used incomplete and misleading numbers. It claimed to have forfeited only around $12,000 in 2015, something miles away from the $69 million estimate of seized cash-on-hand others had cobbled together using info the NYPD had managed to turn over. According to numbers the NYPD said its software couldn't compile, the department had generated $6 million in revenue in 2015 alone.

The Bronx Defenders, a group of public defenders, has been trying for nearly four years to force the NYPD to turn over documents related to its forfeiture programs. The NYPD has a few of these, including an unofficial program that turns personal belongings into "evidence" upon arrest and forces those with dismissed charges or acquittals to jump through a number of time-consuming and expensive hoops to reclaim their belongings -- which include things like cellphones, cash, credit cards, and prescription medication.

The NYPD's refusal to cooperate with the Bronx Defenders' FOIL request has led to a lawsuit. The city moved to have it dismissed, but Judge Arlene Bluth doesn't see much merit in the NYPD's arguments. Or actions.

Displeased by what she described as the New York City Police Department’s “troublesome” litigation tactics, a judge advanced a lawsuit that asks what happens to millions of unclaimed dollars seized in civil forfeitures.

[...]

Rejecting a motion to dismiss the case in Manhattan Supreme Court, Judge Arlene Bluth accused the NYPD and its former Commissioner Bill Bratton on Friday of playing games to avoid disclosures.

In the dismissal of the city's motion, the judge criticizes the NYPD for its constant claims its software can't provide the information the plaintiffs are seeking. The plaintiffs have pointed out they don't need aggregate data. They're willing to take raw data, copies of original documents, or whatever else might allow them to get a better handle on the forfeiture programs the NYPD doesn't want to discuss. The NYPD, however, keeps pointing at its expensive (but apparently worthless) PETS (Property and Evidence Tracking System) software and shrugging.

The judge points out [PDF] that the NYPD has pushed the Bronx Defenders into a catch-22 in hopes of keeping this information from being made public.

Respondents have effectively changed their argument from stating that no responsive documents exist to insisting that producing the information would be too burdensome. This argument directly relates to a troubling assertion by petitioner that respondents refused to confer with petitioner about the way in which these records are kept. 21 NYCR 1401.2(b)(2) requires the records access officer to "assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records." It is obvious that it would be necessary to assist a petitioner seeking records from a database under the complete control of the agency and a database not available for public use.

Otherwise, petitioner is forced to make requests without any knowledge of the capabilities of the database. That is what has occurred here. Respondents do not directly contest this point in their reply to the cross-motion and simply assert that they have no duty to solicit additional information about the requests. While that might be true, there is a difference between soliciting more information and assisting the requestor in reasonably describing the records sought especially, where, as here, the records are kept on a specialized database.

In other words, the NYPD is claiming requesters must know all the nuances and intricacies of a database they're never allowed to access. If they don't, then the NYPD is under no obligation to assist them in any way. This is a common government tactic and not solely limited to the NYPD, although this agency has been referred to as worse than the FBI, CIA, and NSA when it comes to FOI responsiveness.

Judge Bluth goes on to state the NYPD's actions have been, at best, disingenuous.

The record before this Court shows that respondents have only now, more than two years after petitioner's FOIL request, attempted to describe the ways in which these records are kept. This type of "gotcha" litigation tactic is especially troublesome in a FOIL proceeding where petitioner does not have access to the database containing the requested information. Respondents' claims about the burdensome nature of producing individual invoices clearly demonstrates the purpose of assisting a requestor--it is consistent with the spirit of FOIL to let a requestor know how records are kept so that the petitioner can conform requests to receive the information sought and try to avoid unduly burdening an agency.

The NYPD has long shown it has no interest in following the letter of FOIL law, much less its spirit. For requesters, this means the path to responsive documents often leads through home team courtrooms. It's a trip not many are willing to make and the NYPD knows it.

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Filed Under: foia, forfeiture, nypd, public records

22 Comments

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That One Guy (profile), 30 May 2017 @ 6:20pm

Time to break out the stick
I'd love it if judges in cases like this, where the recipient of a FOIA/FOIL request are blatantly stonewalling because they can the judge basically handed the one making the requests a 'Get whatever you want' order.

"Oh, you want them to know everything about the system before you're willing to help them? Alright, in that case you're ordered to give them full access to it, under supervision of a third-party, so that they can learn about it and do the search themselves."

Perhaps if there were actual penalties for abusing the system agencies would be less quick to do so.
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Anonymous Coward, 30 May 2017 @ 7:19pm

Give me a break
Worthless judge, "smacks" NYPD.

Call us when a Judge actually does this for REALZIES! Mmkay?
I know it all has to start somewhere, but please stop overplaying your hand. This judge didn't do shit in any meaningful way.

When you see a Judge hold them in actual contempt... then we can talk about this!
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Coyne Tibbets (profile), 30 May 2017 @ 8:07pm

PrettyDarnedSpecialDB
The PrettyDarnedSpecialDB engine seems to lack a few important features. It can't COUNT(), SUM(), run queries, or display (or export) data. It must have a really interesting architecture...

Hmmmmm...

Oh, of course! They're storing it on that printer. You know, the one that feeds its printed output directly to the shredder...?

Should have named it ShredItAllDB.
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ECA (profile), 30 May 2017 @ 9:48pm

fUNNY?
1. SINCE the software seesm to be PART of the CITY, and PAID by CITY funds...ASK FOR A COPY..
THEn ask for a COPY of the data base..
(SCARE THEM)

2. IF this is SUCH a hard job to do with SAID software, HOW int he world can they contend that is has ANY WORTH in ANY CRIMINAL CASE...
(scare them more)

3. CONTENTION..make a LIST of things taken, FILL IT UP with NEXT YEARS XMAS...REQUEST RETURN...NOW..its part of the Judgment ISNT IT?? IF good not returned in SAME/EQUAL value and condition...SUE THEM AGAIN..
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- Coyne Tibbets (profile), 31 May 2017 @ 8:11am
  
  Re: fUNNY?
  
  HOW int he world can they contend that is has ANY WORTH in ANY CRIMINAL CASE...
  
  The thing is, forfeiture is not criminal--it's civil. A lawsuit against your assets in which you-the-victim have to prove your assets are innocent. (Good luck with that.)
  
  The cops don't need evidence to stand up in court: they only need enough tracking to know which assets have yet to be converted.
  
  I think when the Bronx Defenders finally get a look, they'll find that converted assets are no longer listed; that they're routinely deleted. Wouldn't want to keep any records of what was stolen in the past.
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My_Name_Here, 30 May 2017 @ 9:49pm

You see? I told you random court rulings were making it impossible to deal with crime. Of course Techdirt cheers it on.
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- Anonymous Coward, 30 May 2017 @ 11:27pm
  
  Re:
  Don't you have a cock to swell two inches with somewhere?
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- Daydream, 31 May 2017 @ 12:05am
  
  Just a reminder for everyone before you post:
  Internet trolls are not like normal trolls. Acid, that is, acidic remarks do not stop them from regenerating. Flaming and/or sick burns won't stop them from coming back either. Nor do they turn to stone, or in any other way stop if you expose them to sunlight (or their claims to the light of truth).
  
  The most effective way to banish internet trolls is by performing the Mizaru-Kikizaru-Iwazaru ritual. As part of the ritual, it is necessary that you avert your eyes from the internet troll, don't acknowledge what they are saying, and DEFINITELY don't respond to them!
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Anonymous Coward, 31 May 2017 @ 1:27am

Don't do business in or with NYC. Any jurisdiction that gives the death penalty for selling loosies on the street should be ostracized.
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Anonymous Coward, 31 May 2017 @ 2:51am

how about
just stopping the legalized theft program? No more civil asset forefeiture. Then the police don't have to worry about complicated things like pesky computers and software programs. And the citizens don't get their stuff stolen so much. Win win.
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- Anonymous Coward, 31 May 2017 @ 5:09am
  
  Re: how about
  That would force the corrupt cops stealing this money to find other sources of income. In the words of a previous NYPD officials, this would make it New Yorks problem.
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D.C. Pathogen (profile), 31 May 2017 @ 6:37am

Here is what the Judge Should do
It is so ordered by Judge whomever on this date that that the NYPD immediately and forthwith stop collecting property as evidence until the NYPD can show this court that there is an effective system in place to track and report on evidence and property seizures.

There I wrote it for you, just fix up the legal-eez for your jurisdiction and copy, paste, sign and date.
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JoeCool (profile), 31 May 2017 @ 8:22am

Real reason for stonewalling
Their new computer tracking system is actually working PERFECTLY, and when the desk Sarge asked it how much they were taking from Asset Forfeiture, the answer scared them down to their knickers. If they actually told how much they really took, and from whom, New Yorkers would be rioting in the streets.
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- David, 31 May 2017 @ 12:59pm
  
  Re: Real reason for stonewalling
  
  If they actually told how much they really took, and from whom, New Yorkers would be rioting in the streets.
  
  How does one tell the difference?
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Anonymous Coward, 31 May 2017 @ 9:49am

They have 35k cops and millions of people. I wouldn't doubt it could hit a billion a year.
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Anonymous Champion, 31 May 2017 @ 10:43am

i fin knew it
i now know where all the commodore vic 20s in the world are!!!!!!!!

the nypd has them...and they have the version that has a gram a gold by the joystick port ...( no jokes please )
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Anonymous Champion, 31 May 2017 @ 10:45am

police story Season 1 episode 666
"hey joe , i'm hungry" , says one cop.
"ya me too , lets arrest and foreiturize that wallet in that guys pants"

PROFIT
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Anonymous Champion, 31 May 2017 @ 10:47am

Season 1 episode 667
last week we had two officers taking the wallet out of someones pants.

This week the 12 year old finally gets his wallet and pants back..oh wait a week and ten years later
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DarkKnight (profile), 31 May 2017 @ 12:03pm

BS
The only logical reason the NYPD would be making it near impossible to obtain information on seized property, is that the property is being stolen and they are covering their tracks. There is no other logical reason. Why would the NYPD be seizing anyone's "credit cards"? Those can be cancelled and made unusable, with one phone call by the account holder to the issuer? Bunch of crooks!!
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Bruce C., 31 May 2017 @ 1:24pm

If I were a defending lawyer in a criminal case..
I would do my best to use the statements made in this case about the deficiencies of the PETS system to cast doubt on the chain of custody and reliability of any physical evidence brought forward by the NYPD. "Oh, the records show that this evidence was locked in the evidence room on April 1? What system did you use to verify those records? Are you aware that the NYPD has stated in (this case) that the PETS system does not have the capability to accurately report inventories, provenance, dates of acquisition, etc..."
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Anonymous Coward, 31 May 2017 @ 3:29pm

I got a quick way to end asset forfeiture profiteering. Instead of the forfeited cash going directly to the PD, instead it goes towards funding the perpetually understaffed Public Defender's Office. Watch all those forfeiture streams magically dry up afterwards.
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- That One Guy (profile), 31 May 2017 @ 4:26pm
  
  Re:
  Add a conviction requirement and yeah, those simple changes would end the practice nearly overnight. It's no fun stealing stuff behind cover of a badge if you don't get to keep the loot and have to actually demonstrate guilt first.
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