confidential

Challenge to NYPD Use of Sealed Arrest Records Can Proceed, Judge Rules

Judge Alexander Tisch determined that sealed records are off-limits to the Police Department as well.
Judge Alexander Tisch determined that sealed records are off-limits to the Police Department as well. Photo: Alexander Kirch/Shutterstock

The NYPD, in violation of a decades-old state law, has been routinely accessing sealed arrest records — even in cases where charges are dropped, a class-action lawsuit filed by the Bronx Defenders alleged last year.

On Tuesday, Manhattan Supreme Court Judge Alexander M. Tisch ruled that the case can move forward, spiking a motion to dismiss filed last July by the NYPD’s lawyers. The judge noted state law prohibits the police from using sealed arrest information without first obtaining court permission.

It marks the first time a court has determined the Police Department’s policy of routinely using sealed arrest information is unlawful.

“This is a big deal,” Jenn Rolnick Borchetta, deputy director of the Bronx Defenders’ Impact Litigation Practice, told THE CITY on Tuesday.

“The NYPD today uses sealed arrest information for law enforcement purposes like surveillance, for predictive policing, and targeting people for investigations… Today’s ruling means that that access that they’re giving to officers throughout the department — sometimes at the click of a button on their iPhones — is unlawful,” she added.

The New York state law in question, dating to 1976, requires cases to be sealed “upon termination of criminal action in favor of the accused” — unless a judge decides justice would be better served by keeping records public.

In his ruling, Tisch wrote, “The statute provides a blanket sealing for arrest information” in protected cases. He added there is no interpretation of the law that would allow those records to be used for internal police investigations.

Case Is Under Review

An NYPD spokesperson said only that the department “is reviewing the implications.” A spokesperson for the city’s Law Department also said the decision was under review.

The plaintiffs provided THE CITY with copies of NYPD “Detective Guide” pages that address sealed records. At no point does the guide, obtained through a Freedom of Information Law request, indicate that court permission is necessary.

The state statute also mandates that mugshots and fingerprints in sealed cases be destroyed.

But in just the last few years, the NYPD has retained hundreds of thousands of sealed arrest records — which can also include names, photographs and addresses, according to the Bronx Defenders. Between 2014 and 2016 alone, the complaint alleges, police collected personal information from approximately 820,000 arrests – about half of which should have been sealed.

“At least — that’s a conservative number,” Borchetta said.

Black and Latino New Yorkers are especially vulnerable when access to this information is not limited, she added. More than 75% — 330,000 of the sealed arrest records from 2014 to 2016, the Bronx Defenders said — belonged a black or Latino person.

“The policing in places like The Bronx of people of color is an overly broad dragnet,” she said. But even when cases are later tossed out, “the NYPD is still using those accusations, those arrests, against them.”

The class-action suit, which also contends police often share the sealed records with prosecutors and journalists, was filed on behalf of three plaintiffs listed just by their initials, and any others affected by the NYPD’s use of sealed arrest data.

The parties are next due in court on May 22.

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