Cleary Gottlieb and The Bronx Defenders Advance Lawsuit to Challenge NYPD’s Unlawful Use of Sealed Arrest Records
May 1, 2019
Cleary Gottlieb and The Bronx Defenders have successfully represented three New Yorkers in advancing a putative class action lawsuit filed in April 2018 against the City of New York and the NYPD for unlawfully using and sharing information from sealed arrest records in defiance of longstanding privacy laws.
Justice Alexander M. Tisch ruled in favor of Cleary and the Bronx Defenders’ clients, denying a motion to dismiss filed by the City and ruling that the plain language of New York law prohibits the NYPD from using sealed arrest information in its possession for law enforcement purposes without first obtaining court permission.
The lawsuit challenges NYPD practices that subject anyone who has been arrested to stigma, surveillance, and harsher punishment even if the arrest was thrown out in court. New York law strictly limits when police can use or disclose information from arrests that do not end in criminal convictions. Information from these arrests must be sealed, and mugshots and fingerprints collected during the arrest must be either destroyed or returned to the person accused. Instead of complying with these requirements, the NYPD makes sensitive information relating to sealed arrests available both to officers across the department and to others including outside agencies and the media.
“The NYPD has spent years assembling a massive database of New Yorkers—the majority of them Black and Latinx—that marks people for life based solely on accusations,” said Jenn Rolnick Borchetta, Deputy Director of The Bronx Defenders’ Impact Litigation Practice. “The NYPD cannot ignore this ruling, and it’s a major step toward safeguarding privacy and the presumption of innocence for all New Yorkers.”
The harm from this practice is not theoretical, as the lawsuit makes clear. One of the plaintiffs in the case, identified pseudonymously as R.C., was charged with robbery because NYPD officers created a photo lineup using a photo from a years-old dismissed arrest. The robbery occurred in the Bronx at a time when the plaintiff was in a different state. Yet he was forced to spend a year and a half fighting the charges, all due to a photo that the NYPD was required by law to have destroyed or returned years earlier. During this extremely stressful time, R.C. had to appear in court more than 10 times and lost his job due to repeated work absences. He became depressed and demoralized, and eventually gave up on his plans to attend college.
Trying to get around New York’s sealing requirements, lawyers representing the NYPD asked the court to throw out the plaintiffs’ claim that it is unlawful for thousands of NYPD officers to have unfettered access to sensitive information from sealed arrest records. The court rejected this attempt to circumvent explicit New York statutes and refused to dismiss those allegations. The court found it “abundantly clear” that the NYPD’s “interpretation of the statute is without merit” and is “strained.” “To read the statute in the manner urged by defendants would be inappropriately reading in words that are not there.”
The NYPD makes sensitive personal information from sealed arrests available through a network of databases that officers can access in the course of everyday business. Police also disclose this information to outside agencies and to the media. Some of these unlawful practices have been expressly authorized by written NYPD policies.
The city’s motion to dismiss had paused the lawsuit. The decision by Justice Tisch clears the way for the case to proceed through discovery, where the City will be required to share records and answer questions about the scope of its unlawful practices.
This next phase of the lawsuit could help confirm the exact scale of the NYPD’s unlawful conduct, which looks to be vast. The NYPD’s unlawful access and use of sealed arrest information builds on its years of targeting specific neighborhoods for aggressive policing of low-level offenses, a tactic known as “broken windows” policing. Between 2014 and 2016 alone, the NYPD made over 400,000 arrests that did not lead to criminal convictions. The information from all of these arrests should have been sealed. The department, however, may be storing and disclosing sensitive information from all of these arrests, violating the civil rights of potentially hundreds of thousands of people.
“The NYPD’s pattern and practice of using and disclosing sealed arrest information is a blatant violation of New York’s longstanding sealing statutes,” said Martine B. Forneret, an associate at Cleary. “Today’s decision advances the case towards ultimately vindicating the rights of those whose privacy has been violated and preventing the continued harm and stigmatization of individuals whose rights are protected by the statutes.”
The arrest records at issue in the lawsuit can contain sensitive information including names, photographs, addresses, arrest charges, Social Security numbers, fingerprints, and contact information for the person arrested, as well as information about that person’s relatives and acquaintances. Each of the named plaintiffs in the case had prior charges that were disproven or dismissed, and police violated the law by continuing to use those arrests even though the law required the information be sealed.
The NYPD’s unlawful use of sealed information predominantly harms people of color. Because Black and Latinx people have long faced a disproportionate number of arrests in New York City, they also have a disproportionate number of arrests that the law requires sealed. The NYPD’s practice of violating sealing requirements can serve to entrench and exacerbate past patterns of racial discrimination by subjecting everyone arrested on dismissed or disproven charges to ongoing surveillance and scrutiny that others might never face.