By Joseph Ax
NEW YORK, Dec 20 (Reuters) - Hundreds of thousands of people
who were subjected to the New York Police Department's
controversial "stop and frisk" program, but not convicted of a
crime, can sue the NYPD for keeping their personal information
in a database, a New York appeals court ruled Thursday.
In a unanimous finding, the Appellate Division, First
Department, reinstated a purported class action brought by the
New York Civil Liberties Union that claimed the NYPD's refusal
to seal records of the stops violated state law.
New York Criminal Procedure Law Section 160.50 calls for all
criminal records to be sealed when a case ends in the
defendant's favor, such as a dismissal. A related statute
mandates that records are sealed in cases where a defendant is
convicted of a non-criminal offense, such as a disorderly
The NYPD records the name and address of every person who is
stopped and receives a summons, and it maintains that
information in a database, even if the person's case is
subsequently dismissed or ends in a non-criminal conviction,
according to the ruling.
Police Commissioner Raymond Kelly has said the information
is retained for use in future investigations, according to the
"Plaintiffs ... 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
court wrote in an unsigned opinion.
The state law is intended to protect people who are not
convicted from the stigma of criminal accusations, particularly
when they apply for jobs or educational programs, the court
The decision reversed an earlier ruling dismissing the case
from Acting Manhattan Supreme Court Justice Barbara Jaffe. It
did not address the substance of the NYCLU's allegations that
the practice violates state law.
Celeste Koeleveld of the New York City Law Department said
the city disagreed with the decision.
"However, this was merely a procedural issue, not a ruling
on the merits," she said in a statement. "The case now returns
to the trial court to address the plaintiffs' claims, which are
merely allegations -- and we believe without substance."
The NYPD's stop-and-frisk policy has drawn several federal
lawsuits from civil rights activists who claim the practice
unlawfully targets minorities for harassment.
Police and city officials have defended the program, saying
it has reduced crime and confiscated illegal guns.
The NYCLU lawsuit was filed in 2010 on behalf of two lead
plaintiffs, Clive Lino and Daryl Kahn.
Lino was stopped in 2009 in the Bronx and received two
summonses -- for spitting in public and for possessing an open
container -- but both were eventually dismissed. Kahn also
received two summonses -- for disorderly conduct and for riding
his bicycle on the sidewalk -- that were subsequently dismissed.
"Sealed means sealed -- that means nobody gets access to it,
even the police department," said Christopher Dunn, the NYCLU's
associate legal director. "It's outrageous that they were
flagrantly violating the statute in the first place. Hopefully,
with today's decision, they'll decide the time for that has
Several groups filed amicus briefs in support of the NYCLU,
including The Bronx Defenders, the Legal Aid Society, The New
York County Lawyers' Association and the Community Service
Society of New York.
The case is Lino v. City of New York, Appellate Division,
First Department, No. 7799.
For the plaintiffs: Christopher Dunn of the New York City
For the city: Mordecai Newman of the New York City Law
For the amici: Judith Whiting of the Community Service
Society of New York.
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