by Ed Lyon
Since 1976, arrests in New York that do not result in convictions are supposed to be sealed. Sealed meaning inaccessible through any background checks or public records, anywhere. This is meant to ensure that citizens acquitted of a charged offense will not endure any future hardship simply because of an arrest.
During the state records bill’s pendency, the New York City Police Department (“NYPD”) opposed it, stating that, if passed, the law would interfere with needed records access for investigative purposes. Records access is a vital tool used by police and investigators, and as long as the records are used internally, the NYPD should not be burdened with having to obtain court orders to access those records.
Fast forward to April 2018. An NYPD officer guns down Saheed Vassell. In an effort to mitigate the backlash that ensued, an NYPD source leaked data about Vassell’s four prior convictionless arrests to the New York Post. Later that month, a legal advocacy nonprofit called Bronx Defenders filed suit against the NYPD to compel it to obey the sealed records law.
The NYPD’s defense is based on the argument that it may use those sealed records within the department provided they are not shared with outside agencies. This constitutes substantial compliance with the statute, the NYPD said in a statement to The Appeal. Sealed arrest data from the department’s own database is routinely shared with prosecutors who use it in bail determinations and plea negotiations, as occurred with three of the pending lawsuit’s plaintiffs.
From 2014 to 2016, more than 400,000 convictionless arrests by the NYPD occurred and were entered into the department’s databases. An overwhelming majority of arrestees, some 330,000, were African-American or Hispanic.
“J.J.,” an African-American Bronx resident, had six prior convictionless arrests for jumping subway turnstiles. He was nonetheless entered into the controversial NYPD database and labeled a “transit recidivist,” virtually guaranteeing future arrests because of an NYPD policy requiring officers to arrest transit recidivates when they are caught evading subway fares, an offense otherwise ticketable.
In August 2018, the NYPD’s patrol guide was changed, specifically stating only unsealed arrests could be used in labeling a citizen a transit recidivist rather than its prior instruction that all arrests would contribute to that determination.
A motion by the NYPD to separate its internal use of convictionless arrests from the lawsuit has been filed and is expected to be ruled on soon.
Bronx Defenders’ Jenn Rolnick Borchetta said if the NYPD’s motion prevails, its use of those records will be removed from the current law’s requirement to subpoena them.
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