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Police Still Have Access to Records That Are Supposedly Sealed, Suit Alleges

by Bill Barton

According to a recent Collateral Consequences Resource Center report, “While police in 12 states are prevented by law from accessing records of arrests that did not result in a conviction, officers in New York and elsewhere can look up such files if they get permission from a court or from record-keeping officials. And in 25 states, police have full access to arrest records, even ones that were dismissed or expunged.”

The 12 states that completely seal such records are: Arkansas, Connecticut, Indiana, Kansas, Kentucky, Michigan, Mississippi, North Carolina, South Carolina, Texas, Vermont, and Virginia.

An ongoing lawsuit against the City of New York and the New York Police Department (“NYPD”) has been brought by the Bronx Defenders, a group that provides free legal services to indigent people, and a private law firm. “The suit alleges that the police department has for years illegally used databases of arrests that were supposed to have been dropped, declined by prosecutors, downgraded to citations or infractions, or otherwise thrown out in court,” reports The Marshall Project.

Indeed, “under two New York state laws from 1976 and 1980, police are supposed to seal or destroy such records.” The controversial legacy of the so-called stop-and-frisk era lives on, however.

“J.J.,” one of the lead plaintiffs in the suit, said, “They stopped stop-and-frisk on paper. But they’re still keeping tabs on my people.” J.J. is black and spent a year locked up on Riker’s Island based on a nonexistent criminal record. His arrest was still in a police database. He was never convicted of any crime; his arrests during the stop-and-frisk era should have never appeared in the database according to New York state law.

Jenn Rolnick Borchetta, the lead attorney of the Bronx lawsuit, said, “It’s not just Facebook and Google that have big data, it’s also police departments around the country using it to train the spotlight of their suspicion. But they’re running their algorithms and their facial-recognition software on arrest records and mugshots that were supposed to have been destroyed.”

“Sgt. Mary Frances O’Donnell, an NYPD spokeswoman, said in an emailed statement that despite the Bronx Defenders’ claims, the department is in compliance with New York’s sealed-records statutes because it does not disclose sealed data to any third parties and only uses the records for investigative purposes, consistent with its public safety mission. The NYPD did not respond to further questions about J.J.’s case or the specifics of its officers’ practices, and the Bronx District Attorney’s office declined to comment. As part of the suit, the police department will be required in the coming months to make public more of the specifics of how and to what extent it deploys its databases.

The Bronx Defenders has countered that the NYPD does in fact routinely disseminate sealed data to third parties, including prosecutors, the news media, and housing, immigration, and family-court officials. This has left some New Yorkers at risk of losing their homes, getting deported, or having their children taken from them due to long-ago, dismissed arrests not being properly erased, the group says,” as The Marshall Project reported.

Additionally, earlier this year, a judge denied NYPD’s request to have the suit dismissed, saying that NYPD’s reading of state law was “without merit” and “strained.”

According to the Bronx Defenders lawsuit, “more than 400,000 cases in the city should have been sealed from 2014 to 2016 alone, as stop-and-frisk waned. More than 80 percent involved Black or Latino people, and most were for low-level offenses such as subway fare evasion.”

Margaret Love, who runs the Collateral Consequences Resource Center, and co-authored the center’s recent report with David Schlussel, cited at the beginning of this article, said:

“This really is the next big issue, yet the states are all flailing around not following any national model. Legislators may not have focused on it because they assume police need the records to do actual investigations, without realizing that cops can access this stuff just out on the beat. That’s what’s most scary about it.”

The Bronx Defenders suit may very well be a bellwether for New York and the rest of the states plus the feds. Let’s hope so. 

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Sources: themarshallproject.org, Collateral Consequences Resource Center

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