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NYPD REUTERS Chip East

Lawsuit over NYPD's 'stop and frisk' database can move ahead

12/20/2012 COMMENTS (0)

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 conduct violation.

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 court.

"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 said.

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.

"OUTRAGEOUS"

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 ended."

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 Liberties Union.

For the city: Mordecai Newman of the New York City Law Department.

For the amici: Judith Whiting of the Community Service Society of New York.

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