Ruling Revives Claims Against City Over Stop-and-Frisk Data

John Caher

New York Law Journal

Information gleaned from stop-and-frisk targets must be sealed and cannot be used for subsequent police investigations, an appellate panel has held while finding that individuals whose information was disclosed or utilized have a private right of action against New York City.

In an opinion addressing the ongoing debate over the New York City Police Department's stop-and-frisk policies, a unanimous panel of the Appellate Division, First Department, yesterday reversed a trial court and delivered a victory to civil rights activists who have criticized and legally challenged police procedures.

The panel in an unsigned opinion flatly rejected the city's position and, significantly, held that targets need not await a "readily apparent prospective injury" before seeking relief under a state privacy law.

It "makes little sense for plaintiffs to have to wait until their job applications are in the mail or they are about to appear for job interviews before they have standing to bring a cause of action against the effect of unsealed records," the court said.

The decision reverses a June 2011 holding by Acting Supreme Court Justice Barbara Jaffe (See Profile), reinstates several claims against the city and fortifies two sections of Criminal Procedure Law, §§160.50 and 160.55, which require sealing records in cases terminated in favor of the arrestee or where the individual is convicted of a noncriminal offense (NYLJ, July 7, 2011).

Lino v. City of New York , 106579/10, centers on two named plaintiffs, Clive Lino and Daryl Khan, who were arrested and issued subsequently dismissed summonses under a stop-and-frisk encounter.

Lino, a 29-year-old Harlem resident who works at a facility for students in crisis, was issued two summonses in 2009 after he was stopped by officers in the Bronx. Khan, a 35-year-old freelance journalist from Brooklyn, was also issued two summonses in an unrelated matter. In both cases, the summonses were dismissed.

Records show that the NYPD requires officers to complete a form, which includes the name and address of the individual stopped and frisked. That information is then entered into a central data base where it is stored for "investigators to utilize in subsequent location and apprehension of criminal suspects" and "remains there indefinitely, for use in future investigations," the court said, quoting from a 2009 letter from Police Commissioner Raymond Kelly to Councilman Peter Vallone Jr.

Legislation signed by Governor David Paterson in 2010 bars the NYPD from retaining stop-and-frisk information when the individual questioned is let go without an arrest or summons (NYLJ, July 19, 2010). Yesterday's decision affords new protections, as well as remedies, to those who are charged or issued a summons if the matter is dismissed.

The First Department said the plaintiffs in a suit filed by the New York Civil Liberties Union "correctly assert that they have suffered an injury in fact for two reasons: (1) their records remain unsealed, which puts them at imminent risk that their records will be disclosed, and (2) the NYPD is improperly disclosing plaintiffs' records in the 'stop and frisk' database, which may lead to plaintiffs being targeted in future investigations."

The panel, consisting of Justices Angela Mazzarelli (See Profile), James Catterson (See Profile), Leland DeGrasse (See Profile), Rosalyn Richter (See Profile) and Sallie Manzanet-Daniels (See Profile), said the plaintiffs' injuries "fall within the statutory goal of insuring against the stigma that is created as a result of plaintiffs having been the subjects of unsustained accusations."

It rejected the city's argument that §§160.50 and 160.55 were drafted to benefit only individuals whose private information was about to be disclosed and not those whose information could potentially be disclosed.

"Plaintiffs correctly assert that the statute's mandatory sealing requirements demonstrate that the statute seeks to protect individuals against the risk of public disclosure of their records prior to an actual unlawful disclosure," the court said.

Donna Lieberman, executive director of the NYCLU, said in a statement that as a result of the ruling "innocent New Yorkers who are the victims of unjustified police stops will no longer suffer the further injustice of having their personal information stored indefinitely in an NYPD database. She said the ruling "finally clears the names of more than 360,000 innocent people whose only crime was that they were stopped and frisked by NYPD officers."

Christopher Dunn, the NYCLU's associate legal director and lead counsel in the case, said the court "said loudly and clearly that this database must be sealed" and called on the city to immediately seal the records.

"We found it deeply troubling that the NYPD was flagrantly ignoring the sealing statute and we hope that [yesterday's] decision puts an end to that," Dunn said.

Read Lino's brief, the city's brief, and Lino's reply brief.

Joining the NYCLU as amici curiae were the Community Service Society of New York, the Bronx Defenders, the Center for Community Alternatives, the Legal Aid Society, the Legal Action Center, MFY Legal Services, Youth Represent, the New York County Lawyers' Association and the Fortune Society. Judith Whiting of the Community Service Society appeared for the amici.

The city was defended by Assistant Corporation Counsel Mordecai Newman.

The city does not dispute that the records must be "sealed," but it notes the definition of "sealed" is unclear and will be defined as the case progresses.

Jaffe did not resolve the issue of whether the records were sealed in compliance with §§160.50 and 160.55 and the First Department accepted, for the purposes of the decision, that the plaintiff's allegations that the records were not sealed is accurate.

It said the city's argument that it was not provided an adequate opportunity to show that the NYPD policies do indeed comport with §§160.50 and 160.55 is immaterial at this stage of the litigation.

Celeste Koeleveld, executive assistant corporation counsel for public safety, said in a statement that the office disagrees with the decision. "This was merely a procedural issue, not a ruling on the merits," Koeleveld said. "The case now returns to the trial court to address the plaintiffs' claims, which are merely allegations— and we believe without substance."

@|John Caher can be contacted at jcaher@alm.com.