Police Use a Legal Grey Area to Rob Anyone of Their Belongings
This was one of Radley Balko’s links yesterday, and it seems worth pointing out specifically since it shows another way in which police departments in the US are assuming greater powers—that is, extra-legal authority and power. The report by Kaveh Waddell appears in the Atlantic:
Last summer, Kenneth Clavasquin was arrested in front of the Bronx apartment he shared with his mother. While the 23-year-old was being processed, the New York Police Department took his possessions, including his iPhone, and gave him a receipt detailing the items in police custody. That receipt would be his ticket to getting back his stuff after his case ended.
But the recovery process would soon turn into a nightmare. Clavasquin’s case was dismissed on December 8, 2015, and one day later, he took a court document proving the dismissal to the NYPD property clerk’s office. He was told that the department had classified his possessions as arrest evidence, to give the district attorney the option of considering them in the case. But the district attorney didn’t, and now that the case was over, the classification meant Clavasquin was about to enter a bureaucratic obstacle course.
Clavasquin needed to get a release from the district attorney’s office stating that his property would no longer be needed for evidence. Over the following three months, he repeatedly called the assistant district attorney assigned to his case, but he neither got a release nor a written explanation of why he was being denied one.
Then, with the help of an attorney at the Bronx Defenders, a public-defender office that had been representing him since the day after his arrest, Clavasquin sent a formal written request for the district attorney’s release. He got no response.
Clavasquin still hasn’t gotten his phone back—but he had to continue paying for its service contract as it remained locked up in an NYPD facility.
His ordeal is a common one. Earlier this year, the Bronx Defenders filed a class-action lawsuit against New York City that named three plaintiffs: Clavasquin and two other men who were also given the runaround when they tried to pick up their property, including their cellphones, after an arrest. The lawsuit alleges that the city has shown a “policy, pattern, and practice” of unconstitutionally depriving people of their property after an arrest, without due process.
There are two avenues available to the government for seizing items that were used to commit a crime, or cash that was made unlawfully. If a person is convicted of a crime, the government can use a legal tool called criminal forfeiture that allows it to confiscate property that was involved. Civil forfeiture, on the other hand, does not require a criminal charge—only a suspicion that a piece of property was involved in a crime, or that it was obtained illegally.
But neither of those legal processes were used against Clavasquin, his coplaintiffs, and the estimated “hundreds if not thousands” of others just in New York City that they represent in the lawsuit. Instead, they got caught in legal limbo: When their property was classified as evidence after their arrest, slow-moving bureaucracy and red tape turned what should be a routine transaction—getting back personal property after the state no longer has any use for it—into a near-impossibility.
In New York, the multi-step process required to get the NYPD to release possessions can be opaque and circuitous. When the Bronx Defenders circulated a questionnaire in 2014 among its clients who had possessions taken from them at the time of arrest, nearly half said they were never even given the itemized voucher that Clavasquin received.
Even with that voucher in hand, petitioning the district attorney’s office for the necessary forms to release items categorized as evidence can be fruitless: More often than not, requests to the district attorney’s office—whether phoned in, written, or emailed—go unanswered, said Adam Shoop, a Bronx Defenders attorney who helped bring the class-action lawsuit against the city. The only reliable way to force a response is to file an administrative appeal, a legal tool that the average non-lawyer almost certainly wouldn’t be able to use on his or her own, Shoop said.
If someone is able to jump through all the hoops and obtain a district attorney’s release, there’s one final hurdle: The NYPD property clerk, which actually holds on to the items, requires two forms of ID before releasing any property. Drumming up two forms of ID can be difficult on its own, but it’s made harder still if the person’s wallet, which may contain a driver’s license, is in police custody. (The property clerk won’t count a seized license as a valid form of ID.) When that’s the case, the person has to notarize an authorization for someone else to pick up the items on their behalf.
Of the items that might be seized during an arrest, cars, cellphones, and wallets with cash are among the most valuable. Cellphones are especially likely to be categorized as arrest evidence, throwing up additional hurdles to recovery. (Shoop says that people arrested on drug-related charges are most likely to get their phones categorized as evidence.)
If a phone is taken and is hard to get back, not only does its owner have to keep paying for service—or pay an early termination fee, if it’s under contract—but he or she loses a basic tool of modern life. Younger, lower-income, non-white, and uneducated people are particularly likely to depend on their smartphones as their only way of accessing the internet, and some lower-income families may only have one smartphone.
All manner of other things get taken, too. James King, a staff attorney at the Public Defender Service for the District of Columbia, says his clients often want to get their winter coats back after an arrest. “Since they’re hiring us, they can’t afford attorneys,” King said. “These are people who are poor.” But the hunt to get their coat back sometimes takes so long that, even if it’s ultimately successful, winter has ended by the time the coat is returned. . .
This is quite clearly not serving the public, which is the stated mission of police departments.