OPINION & ORDER
HAROLD BAER, JR., District Judge.
Plaintiff class in this long-running litigation challenges the constitutionality of the seizure and detention of vehicles by the City of New York. This action was remanded by the Second Circuit to this Court on September 15, 2006 to determine the procedures by which a district attorney may apply to retain, as evidence in a criminal proceeding, a vehicle seized pursuant to a warrantless arrest. See Krimstock v. Kelly, 464 F.3d 246 (2d Cir.2006) ("Krimstock III").
The Amended Order of this Court of December 2, 2005 that governs such procedures is again amended, in accordance with the principles articulated by the Second Circuit, and for additional reasons outlined below.
This action was originally brought in 1999 by plaintiffs who challenged the constitutionality of New York City's civil forfeiture statute as it applied to those whose vehicles were seized pursuant to a warrantless arrest as an "instrumentality of a crime." See Krimstock v. Safir, 2000 WL 1702035, 2000 U.S. Dist. LEXIS 16444 (S.D.N.Y. Nov. 13, 2000) (Mukasey, C.J.), citing N.Y. CITY ADM.CODE § 14-140. The Second Circuit, on appeal, held that due process in such situations requires a prompt hearing before a neutral fact-finder to test the probable validity of the deprivation pendente lite, including the probable cause for the initial warrantless seizure and the necessity and legitimacy of continued impoundment. See generally Krimstock v. Kelly, 306 F.3d 40, 69-70 (2d Cir.2002) ("Krimstock I"). The Circuit directed then-Chief Judge Michael Mukasey to fashion a post-seizure hearing process in accordance with those principles. Id.
On remand, Judge Mukasey, in an Order finalized on October 24, 2003, fashioned what is now known as a "Krimstock hearing." The "Krimstock hearing" requires that when a vehicle is seized as an "instrumentality of a crime," the New York Police Department ("NYPD") must give written notice to the claimant of his or her right to a hearing before the City's Office of Administrative Trials and Hearings ("OATH"). The claimant may be either the driver of the vehicle at the time the vehicle is seized or the owner (if different than the driver).
At that "Krimstock hearing," NYPD has the burden to prove, by a preponderance of the evidence, that a) probable cause existed for the arrest of the vehicle's operator, b) it is likely the City would prevail in an action to forfeit the vehicle, and c) it is necessary that the vehicle remain impounded in order to ensure its availability in the eventual civil forfeiture action. The Second Circuit affirmed these procedures to the extent they governed vehicles seized as an "instrumentality of a crime." See Jones v. Kelly, 378 F.3d 198, 204 (2d Cir. 2004) ("Krimstock II").
At this point, however, the related, but distinct, issue had arisen of vehicles concurrently seized as evidence in a pending criminal investigation.
Upon Plaintiffs' appeal, the Second Circuit reversed Judge Mukasey. See generally Krimstock v. Kelly, 464 F.3d 246 (2d Cir.2006) ("Krimstock III"). The Circuit held that under the Fourth Amendment, no adversarial review is required of a District Attorney's decision to retain a vehicle as potential evidence in a criminal proceeding. Krimstock III, 464 F.3d at 252.
Upon remand, Plaintiffs, the NYPD, and the District Attorneys submitted supplemental briefing that proposed potential revisions to Judge Mukasey's Order as it governed vehicles seized as evidence in a pending criminal proceeding.
Plaintiffs also proposed revisions to Judge Mukasey's Order as it governed vehicles seized as an "instrumentality of a crime," in light of evidence Plaintiffs submitted regarding the efficacy of the implementation of those portions of Judge Mukasey's Order.
I held a hearing on the record in Chambers on February 1, 2007, at which the parties presented argument.
II. STANDARD OF REVIEW
The district court has broad discretion, in an action such as this to remedy due process violations, to fashion a remedy to ensure that the mandate of the Second Circuit is carried out. See Krimstock III, 464 F.3d at 250; Krimstock II, 378 F.3d at 204; Krimstock I, 306 F.3d at 69.
Two sets of issues are presented here on remand. First, as directed by the Second Circuit on remand, I must fashion procedures to govern the District Attorney's retention of vehicles as evidence in a criminal proceeding. Secondly, I will address Plaintiffs's proposed changes to the applicable procedures that govern vehicles seized as an "instrumentality of a crime."
A. District Attorney's Retention of Vehicles as Evidence in a Criminal Proceeding
i. Ex Parte Application For a Retention Order
" . . . [D]istrict attorneys must be permitted to seek retention orders ex parte so that defendants cannot use the hearings for discovery or to restrict the prosecution's theories at trial." Krimstock III, 464 F.3d at 253. Although no "adversarial hearing" is required, the prosecutor's decision to retain the vehicle as evidence must be reviewed by a "neutral-fact finder." Id. at 255. Essentially, the District Attorneys argue that whereas a law enforcement officer can approach a judge ex parte for a wiretap or search warrant, in an analogous manner, the ADA supervising the case should be permitted to approach a judge ex parte for a "retention order" to hold a vehicle as evidence.
Accordingly, the District Attorneys propose, and I agree, that an ADA may approach a Criminal Court Judge or Supreme Court Justice ex parte for such a retention order that would allow the District Attorney to hold the vehicle as evidence.
Plaintiffs do not dispute the District Attorneys' right to seek a retention order ex parte, so long as the ADA's application for a retention order meets two requirements. First, Plaintiffs propose that the ADA must affirm that there are reasons for the retention, what they are, and that they relate to the contested issue in the underlying criminal proceeding.
Accordingly, the ADA's application for a retention order should include an affirmation that meets those two requirements. The judge will be the ultimate arbiter of whether the application is to be granted, and for how long. If the judge denies the application, Plaintiffs propose that a copy of the denial be promptly served upon the claimant, and NYPD shall promptly release the vehicle to the claimant. That proposal is reasonable.
ii. Subsequent Opportunity to Be Heard
Plaintiffs propose that if an ex parte application for a retention order is granted, the claimant should have a subsequent opportunity to vacate or amend that retention order. The District Attorneys disagree.
There is a "strong presumption against ex parte submissions." United States v. Abuhamra, 389 F.3d 309, 328 (2d Cir.2004), cited approvingly, Krimstock III at 254 (Court cited Abuhamra for proposition that Mathews v. Eldridge due process test applies in criminal context). "Fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights." Abuhamra, 389 F.3d 309, 322, citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). "Fairness of procedure . . . may not always demand an immediate hearing or one with all the procedural safeguards of a criminal trial, but it does require, at a minimum, that a person `in jeopardy of serious loss' be given `notice of the case against him and opportunity to meet it.'" Id. at 322, citing Joint Anti-Fascist Refugee Committee, 341 U.S. at 161, 171-2, 71 S.Ct. 624.
Taken together, these mandates provide that here, although an ex parte retention order "must be permitted," such an ex parte order is a temporary expedient. See United States v. Monsanto, 924 F.2d 1186, 1193-97 (2d Cir.1991) (holding that although a restraining order against a criminal defendant's assets may be granted ex parte without notice and hearing, due process
The District Attorneys argue that the Second Circuit's statement that "no full-dress adversarial hearing is required" to approve a retention order, see Krimstock III at 253, means that no adversarial hearing is required at any point in time during the pendency of criminal proceedings. The District Attorneys, however, overstate the reach of the Circuit's language. A "full-dress adversarial hearing" refers to the "full panoply of adversary safeguards" — i.e., "counsel, confrontation, cross-examination, and compulsory process for witnesses." Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (holding that these "adversary safeguards" are not required for a criminal determination of probable cause). Although a "full-dress adversarial hearing" is not required to test the District Attorney's initial application to retain the vehicle, given the deprivation of a vehicle here — frequently, the only way in which the claimant can earn a living — claimants must be provided at some point with some opportunity to be heard.
Accordingly, claimants will be provided with the opportunity for a hearing, subsequent to an ex parte retention order, wherein they may move to vacate or amend the retention order via a challenge to the legitimacy or necessity of the continued retention of the vehicle as evidence.
IV. New York City Police Department's Seizure of Vehicles as an "Instrumentality of a Crime"
i. Plaintiffs' Proposal to Shift Burden to Show Service of Notice Onto NYPD
As noted above, by way of background, when the NYPD seizes a car as an "instrumentality of a crime," the officer gives notice to the driver of his or her right to a "Krimstock hearing" (i.e., the "Krimstock notice," which contains a form for the driver to fill out). Additionally, NYPD sends a second notice to the owner of the vehicle (who may also be the driver) within five business days.
Plaintiffs have produced evidence that they aver shows "widespread non-compliance" by the NYPD with respect to their obligation to provide notice of Krimstock hearings. Plaintiffs cite 30 purported examples from late 2004 through late 2006 of drivers who were not given notice. Because drivers who did not receive notice presumably did not subsequently request a "Krimstock hearing," Legal Aid argues that these 30 instances represent the "tip of the iceberg." NYPD vigorously disputes Plaintiffs' contentions, noting generally that even taking Plaintiffs' allegations as true, 30 occurrences of defective notice out of 2,937 vehicles designated for forfeiture over the course of a year represented isolated instances, rather than systemic failures requiring revision of the existing procedures.
Based on their averments, Plaintiffs propose essentially to shift the initial burden to show service of adequate notice onto NYPD. Plaintiffs propose that at a Krimstock
NYPD correctly avers, however, that lack of service is generally an affirmative defense, upon which the movant bears the burden. Indeed, OATH judges have dismissed NYPD petitions where the claimant credibly argued that he did not receive proper notice. See, e.g., Police Department v. Sica, OATH Index No. 1139/06, at 5 (Jan. 26, 2006) (strictly construing notice requirements against petitioner NYPD). Leaving aside the parties' factual disputes, civil procedure doctrine does not generally provide for shifting the initial burden to show service of notice to the petitioner. Claimants' procedural rights are safeguarded here by their ability to raise a lack of notice defense in a Krimstock hearing. I decline to modify Judge Mukasey's Order on this score.
ii. Inclusion of "Innocent Owner" Defense in Initial "Krimstock Hearing" Notice
Plaintiffs propose that the "Krimstock notice" should also contain notice that the claimant may have an "innocent owner" defense to the forfeiture action. Specifically, Plaintiffs propose language stating that "a vehicle may not be forfeited if its owner did not know or have reason to know that the vehicle would be used in the commission of a crime." See Plaintiffs' Proposed Order ¶ 3; see also Property Clerk v. Pagano, 170 A.D.2d 30, 34, 573 N.Y.S.2d 658 (N.YApp.Div.1991) (petitioner seeking forfeiture bears the burden to prove that the vehicle owner "permitted or suffered" illegal use of the vehicle, and in doing so, "knew or should have known that the car would be used as the instrumentality of or in furtherance of a crime."), citing N.Y. CITY ADM.CODE § 14-140.
Citizens are generally charged with constructive knowledge of the law. See Brody v. Vill. of Port Chester, 434 F.3d 121, 130 (2d Cir.2005) ("property owners are generally charged with knowledge of the laws relating to property ownership"), citing North Laramie Land Co. v. Hoffman, 268 U.S. 276, 45 S.Ct. 491, 69 L.Ed. 953 (1925). That said, I see little harm in modifying the Krimstock notice to provide a short statement to those "innocent owners" whose vehicles may have been used in a crime without their knowledge. The Second Circuit has previously counseled me to give special consideration to the "plight of innocent owners." See Krimstock I, 306 F.3d 40, 58 (noting the "heightened potential for erroneous retention where an arrestee, whether for DWI or some other suspected criminal conduct, is not the owner of the seized vehicle.").
Accordingly, I modify Judge Mukasey's Order so that the Krimstock notice includes Plaintiffs' proposed language regarding the "innocent owner" defense.
Under Judge Mukasey's Order, within two business days of NYPD's receipt of written demand for a Krimstock hearing, NYPD is currently required to send their petition to retain the vehicle to OATH, the claimant, and the applicable ADA informing them of the specific date of the Krimstock hearing. Plaintiffs propose that the NYPD petition should comply with the City's specificity requirements for an administrative OATH petition. Those requirements are that the petition "shall include a short and plain statement of, the matters to be adjudicated, and a reference to the particular sections of the law and rules involved. The petition shall specifically allege the incident, activity, or behavior at issue, and where appropriate, the date, time and place of occurrence. It shall identify the law, rule, regulation, contract provision, or policy that was allegedly violated." OATH Rule 1-22.
Legal Aid argues that currently, without this information, claimants have no factual information prior to the hearing that might enable them to adequately rebut the NYPD's petition to keep their vehicle, such as whether probable cause existed to arrest the driver, or what crime the vehicle was allegedly used as an "instrumentality of." NYPD rebuts that in most cases, where the driver is also the owner of the vehicle, he knows exactly what underlying criminal activity will be discussed at the Krimstock hearing, since the driver (allegedly) committed that activity himself. NYPD's argument, however, does not address the plight of the "innocent owner" who may have no knowledge of the underlying facts he or she is charged to rebut.
Notice is "something more than a mere formality." Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.2001). I see little reason why the NYPD petition before the OATH tribunal should not comply with that tribunal's administrative rules. I hereby modify Judge Mukasey's Order to provide that the NYPD petition "will comply with the specificity requirements for a petition as stated in OATH Rule 1-22."
iv. Necessity of "Colloquy" for Settlements of "Krimstock Hearings"
Plaintiffs propose that where the claimant and NYPD reach a settlement of the NYPD's petition, such settlement should be accompanied by a determination on the record by the OATH judge to ensure that waiver of a hearing is "knowing and intelligent." Currently, settlement conferences are conducted by a law clerk. Essentially, it appears, Plaintiffs propose a "colloquy" somewhat analogous to the plea colloquy of a criminal defendant.
As approximately 80% of OATH cases do not result in a written decision, Plaintiffs infer that a substantial percentage of NYPD petitions result in settlement. Plaintiffs aver that the vast majority of claimants before OATH hearings are unrepresented. Thus, Plaintiffs argue, many unrepresented claimants may be forced to pay several hundred dollars to obtain the return of their vehicle when they might have won their OATH hearing if they knew their rights.
NYPD argues that as the majority of claimants are also defendants in the underlying criminal action, those claimants are represented by criminal lawyers, who often advise them to default their OATH hearing for fear of exposing details of their criminal case.
More generally, however. NYPD argues that to require a colloquy is to simply micromanage the daily details of an administrative adjudicatory process and impose unnecessary burden upon the process. I agree. At heart, I see no requirement in a civil proceeding such as this for a "plea colloquy" on the record before a settlement is effectuated. I decline to modify Judge Mukasey's order in this fashion.
I direct the Plaintiffs to submit, within seven days of the date of this Opinion, a proposed Order that amends Judge Mukasey's Order of December 2, 2005 in accordance with the aforementioned directives. Defendants may, if they choose, submit a proposed counter-Order of their own within seven days after Plaintiffs' submission. Obviously, it is the Court's hope that the parties will be able to submit a single joint Order.
Following argument by the parties and the five District Attorneys of New York City regarding vehicles seized as evidence in the related criminal proceeding, Judge Mukasey amended his Order of October 24, 2003 and provided that an OATH judge, upon a showing by the district attorney that the vehicle should be held as evidence for a criminal proceeding, could order continued retention of the vehicle. See generally Krimstock II, 378 F.3d at 200-01. Under that Order, a vehicle release order issued by an OATH judge could be nullified by an order of a Justice of the New York Supreme Court or a Judge of the New York City Criminal Court that designated the vehicle as arrest evidence. See id. at 201. No vehicle could be released unless the driver waived all claims and defenses in the criminal proceeding relating to the condition of the vehicle. See id.
The City and District Attorneys appealed. (The District Attorneys had submitted letters in 2003 as interested non-parties regarding vehicles seized as evidence in a related criminal proceeding. In November 2004, after the Circuit's second remand, the district attorneys officially intervened as parties to this action.)
Defendants generally aver that given that 2,937 vehicles were designated for forfeiture from January 1, 2006 through December 20, 2006, 30 instances of failed notice constitutes a fairly high success rate. See Declaration of Robert Messner . . ., Jan. 2, 2006 ("Messner Decl."), ¶ 8.
Plaintiffs also propose specifically that once a demand is made, the District Attorney shall respond in writing within seven days of receipt of the written demand. If the ADA decides that retention of the vehicle as evidence is necessary, the ADA must apply for a retention order to the judge supervising the underlying criminal case. (It is not entirely clear if, under Plaintiffs' proposed order, the ADA must apply for the retention order within seven days, or within some reasonable time after their seven days to evaluate the demand has elapsed.) On the other hand, if the ADA decides that retention of the vehicle as evidence is not necessary, the DA shall serve a written statement to that effect upon the claimant.
Here, it appears that in most situations, the District Attorneys' temporary retention of a vehicle to take photographs or conduct forensic testing to be used at trial should satisfy the District Attorneys' legitimate interest in producing evidence. At risk of stating the obvious, it is unlikely that an Assistant District Attorney might produce the actual vehicle in court to show to the jury.