Civil Enforcement

Civil Enforcement is when the police and or district attorney’s utilize civil law to aid in their enforcement of violations of criminal law. There are two types of civil enforcement utilized most frequently by the NYPD. One is Property Forfeiture. The other is Nuisance Abatement.

Forfeiture of property is the seizure of property and or money that was either unlawfully obtained, or was the proceeds or instrumentality of a crime or has been used in the commission of a crime or otherwise may be subject to forfeiture under any applicable provision of law. The legal basis for most forfeiture of property in the City of New York is a long-standing provision of the New York City Administrative Code. The concept of forfeiture dates as far back to the Old Testament when an ox which gored a person to death was stoned without any compensation to its owner.
The police or district attorney claim a superior right to the property than it’s the owner because it was used in the commission of a crime or is the proceeds of crime. The police or district attorney may commence a civil action or lawsuit against the owner to allow them to keep the property forever, terminating the ownership interest of its original owner. It is a powerful tool for law enforcement. Like most powerful tools it sometimes is abused.

An example of forfeiture is when the police arrest someone after a car stop, find drugs in the car or on one of its occupants and seize the car as the instrumentality of the crime of criminal possession of a controlled substance (illegal drugs). Another example is when a person is arrested for Driving While Intoxicated (DWI) and the car that was used is seized for forfeiture. An example of forfeiture of money is if a person is arrested for gambling violations and money is seized as proceeds of the illegal gambling

The law now requires that the owner or claimant of a vehicle that was seized by the police is entitled to a Retention Hearing. The purpose of the retention hearing is to determine the probable validity of the police department’s retention of vehicle seized in connection with an arrest. The retention hearing will provide the owner with an opportunity to be heard, either in person or through an attorney, on three issues: (1) Whether there is probable cause to arrest the operator of the vehicle; (2) Whether the City or county is likely to prevail in an action to forfeit the vehicle; and (3) Whether it is necessary that the vehicle remain impounded in order to insure its availability either as evidence or for a judgment of forfeiture. The government has the burden to prove the above three issues at the hearing. The burden of proof required is by a preponderance of the evidence or more likely than not, a much easier burden to meet than beyond a reasonable doubt which is the criminal standard of guilt. Remember these are civil proceedings, not criminal.

The other type of civil enforcement is Nuisance Abatement. Nuisance Abatement is when the City, usually through the Police Department’s Civil Enforcement Unit, physically closes or shuts down a commercial location (residences can also be targeted) because there were previous incidents of illegal narcotic or marijuana activity, violation of gambling laws, violation of alcohol beverage control laws, violation of trademark counterfeiting laws and various other predicate crimes. The legal authority for the City to abate nuisances is also granted in the New York City Administrative Code.

This is how the process works. The NYPD’S civil enforcement lawyers apply in Supreme Court where the property is located for a temporary closing and restraining order, usually without notifying the business operator and building owner of the application. If the court grants the order the City can keep the location closed for up to one year, also known as a permanent injunction and impose daily fines. The City sues the landlord, the operators of the establishment or occupants of the premises and even the land and building. This can impose tremendous economic hardship on all the parties involved, especially on the business or establishment if is put out of business and on the landlord for lost rent and civil penalties. If you are the defendants in a Nuisance Abatement action, you should retain a lawyer who is familiar with the process to defend your interests.

If you have any questions concerning Civil Enforcement, please contact my office.