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Council, Courts End the 'Tenant Blacklist'


landlord blacklists, new york city, housing
Photo 2010 Oates Ritthichai

The term "blacklisting," usually associated with 1950's McCarthyism, has taken on a new meaning. The blacklisted in 21st century New York have been people applying for apartments whom property owners deem undesirable as tenants. In an effort to limit this practice, the New York City Council in March, building on previous court cases, enacted the Tenant Fair Chance Act.

While credit checks are well known, most New Yorkers do not realize that some companies buy landlord-tenant filings, harvest court histories and sell them to landlords. The endgame is for landlords to learn whether the apartment-seeker had an in-court dispute with a prior landlord.

Tenant screening agencies, as the companies are known, may supply information about credit, character, reputation and personal characteristics, but the new law's emphasis is on "history of contact with any court... [and reports] used for the purpose of serving as a factor in establishing a consumer's suitability for housing."

The Legal Background

In the case of White v. First American Registry a class-action was brought in federal court in Manhattan against the nation's largest tenant screening agency. In his ruling, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York noted that landlords are all too willing to use such "consumer reports" as a blacklist, "refusing to rent to anyone whose name appears on it regardless of whether the existence of a litigation history in fact evidences characteristics that would make one an undesirable tenant."

The judge went on to say the practice of seizing upon the availability of Housing Court filings helps "to create and market a product that can be, and probably is, used to victimize blameless individuals. Tenants and lawyers in that case won more than $2.9 million.

While everyone agrees landlords have a right to know who will be living in their buildings, and that they should do some checking, Kaplan agreed with tenants that the records obtained and sold by screening agencies are unreliable. As Supreme Court Judge Barbara Kapnick wrote in the later case of Dawn Weisent v. Subaqua, "regardless of whether or not a tenant prevails in the Housing Court, his or her name may appear on the 'blacklist.'"

Limited Information

The Housing Court records that are bought and sold show merely that a proceeding was commenced, not what ultimately happened in the case, making the information incomplete or even inaccurate. The records the screening agencies receive from the court show a proceeding was brought -- for example, Landlord v. Tenant -- but give no other information. Because of the limited facts, the case might not even involve the tenant in question, but someone else with the same name, giving a false impression of a potential tenant’s history with a landlord.

The records also do not reveal, for example, that a tenant might have previously withheld rent due to dangerous housing conditions. Instead, they simply show that the tenant was a defendant in a lawsuit. The records also will not reflect that a Housing Court judge might have dismissed the landlord-tenant proceeding, finding that it was baseless, or deciding after trial in favor of the tenant. In other words, the mere fact that there was a proceeding in an apartment related dispute brought to court could be used against a person trying to rent an apartment -- even if it is the wrong person.

The Council's 'Fair Chance'

The Tenant Fair Chance Act, which was introduced by Manhattan City Councilmember Daniel Garodnick and co-sponsored by 17 other members, goes into effect this summer. It intends to let potential tenants know if screening agencies are being used and what they have reported about them, especially if adverse information has led to denial of an apartment.

In introducing the bill, Garodnick said, "Tenant screening reports are one of the most powerful tools working against renters today, and yet they are almost completely unregulated."

Under the new law, the tenant who is spurned is entitled to a copy of the report and the opportunity to make any corrections. The law states, "Every tenant or prospective tenant may dispute inaccurate or incorrect information contained in a tenant screening report directly with the consumer reporting agency."

A violation of the Tenant Fair Chance Act law “shall be subject to a civil penalty of not less than $250 nor more than $700 for each violation.” Other penalties, including criminal prosecution, also are available.

Emily Jane Goodman is a New York State Supreme Court Justice

Police Need New Approach to Deal with the Mentaly Ill


crisis intervention team

In 2008, New York City police arrived at the Bedford Stuyvesant home of Iman Morales, a 35-year old man with a psychiatric diagnosis. Distraught and naked, Morales had climbed out the apartment window and onto a storefront ledge. The encounter ended when one of the officers aimed his Taser at Morales, who then plummeted onto the concrete 10 feet below and suffered a fatal head injury.

The officers on the scene were, like all New York Police Department officers, armed with guns, but no proper training or tactics to diffuse a situation with a person with mental illness. Later that week, the police lieutenant who gave the order took his own life.

In response to Morales’ death, Police Commissioner Raymond Kelly responded by saying the NYPD would increase training for police officers -- but the change was purely in the quantity of instruction, not the quality. Kelly said the additional training would be "in essence, going over the training they've received."

An Inadequate Response

Going over the basics is not enough. There continue to be a shocking number of incidents where the New York City police have encountered a person in a state of psychiatric crisis, and rather than de-escalating the situation, their untrained reactions and poor decisions have left the person injured or even dead.

The police department's current policing practices are at best inadequate, and at worst ineffective. A refresher course on an insufficient model does not change direction and certainly has not prevented people with mental illness from being criminalized or killed. A true shift in policy is needed, with the police spending more time with people with mental illness so that they can be treated with the dignity and respect that they deserve.

Sadly, that has not happened, and the Morales encounter remains not far from the norm. Two years after his death, the New York's policing model still includes no distinct response system for its officers to safely interact with people with psychiatric disabilities when they are in a state of crisis.

Olga Negron, Morales' mother, still lives with the loss of her son. She says that she misses him "so much -- my heart hurts everyday." She knows that her son’s death was avoidable -- if the police department only knew how to protect both New York's psychiatrically disabled and the many police officers who interact when them on a daily basis.

What Other Cities Do

Luckily there is a solution -- for Negron, and for the New Yorkers with psychiatric disabilities. Eighty cities and counties around the country have taken on new policing models to make interactions between police and people with mental illness safer for all involved and reduce arrests. Crisis Intervention Teams connect residents to social services early in cities large and small around the country -- including Los Angeles, Chicago, and Houston -- and keeping people who need treatment out of jail and prison.

Rather than killing or injuring people with mental illness, Crisis Intervention Teams offer an opportunity to help provide treatment and a therapeutic environment to individuals in need of support. While New York's prison population is decreasing, the percentage of prisoners with mental illness has risen. The Crisis Intervention Teams provide a humane solution to the unjust punishment of people with mental illness.

Crisis Intervention Teams require police officers and 911 dispatchers to receive 40 hours of training that teaches them to recognize signs of mental illness so they can identify symptoms in individuals. The programs also cover de-escalation techniques, so that police and dispatchers can refocus on diverting individuals into treatment.

In some places, only Crisis Intervention Team police officers respond to crisis situations, but in others, like the model in Westchester County, a social worker or peer specialist works out of the precinct and co-responds with police officers. The team model works with self- selected staff, so the experienced workers have a deep and skilled understanding and sensitivity to mental illness from the get go.

In addition to training, Crisis Intervention Teams forge stronger relationships between local precincts and community hospitals and mental health centers. The process of admitting someone to a treatment facility is streamlined so that the police don't wait long hours in an emergency room and so that people who are in need of treatment get it immediately.

Who Not Here?

On Feb. 24, experts from Westchester' Crisis Intervention Teams came to New York City to share the success of their model and its ability to increase the safety of the community, police officers and people in crisis, and aid recovery for people with mental illness.

Unfortunately though, the New York City Police Department continued its pattern of refusing to hear proposed solutions or to adopt these new models despite their proven effectiveness in deescalating crises. Department representatives did not show up for the roundtable, organized by Rights for Imprisoned People with Psychiatric Disabilities, or RIPPD, a grassroots organization of formerly incarcerated people with psychiatric disabilities, advocates and family members.

Recently, community residents and members of Rights for Imprisoned People with Psychiatric Disabilities gathered outside the 79th police precinct, where Morales died, and demanded: How can the New York Police Department not implement this program?

Too much is at stake. The list of New Yorkers with mental illness harmed by police unprepared to help them is too long, and includes Earl Black, Rodney Mason, Alan Zelencic, Stephanie Lindboe, Khiel Coppin, Gilberto Blanco, and David Kostovski.

The New York Police Department must do the right thing for New Yorkers with mental illness, their family and friends -- and their own officers. Until the police modernize their tactics, every encounter with a person in psychiatric crisis will continue to be a chance for avoidable tragedy.

Alexandra Smith is a criminal justice advocate at the Urban Justice Center’s Mental Health Project and a member of Rights for Imprisoned People with Psychiatric Disabilities. For more information visit Rights for Imprisoned People with Disabilities.

Suits Would Burden Foster Parents, Court Rules


foster children, foster care

Jacob Harris was born in 2004, with traces of cocaine, opiates, marijuana and methadone in his body Dutchess County child welfare officials placed him with a foster mother, Diane Sherwood, while his birth mother, a drug addict, went into treatment.

When the mother, Taylor Harris, left treatment after six months and regained custody of Jacob, she brought a lawsuit against Sherwood and the Dutchess County Department of Social Services and the county's commissioner of social services for an injury the baby had sustained in Sherwood’s home. She alleged that her child was injured as a result of negligent care and supervision and failure to provide a safe environment.

Jacob's Climb -- and Fall

At 16 months, Jacob had been napping but, when he awoke, climbed out of his port-a-crib and onto a dresser of about the same height. He fell, fracturing a femur.

Sherwood had two of her own children in the household, and had cared for foster children for five to six years before Jacob joined her family. She kept Jacob's portable crib in her bedroom because of his special health problems including pneumonia for which he needed a nebulizer at night.

The Department of Social Services had inspected the portable crib and the living arrangements before the accident and did not voice any concerns. Jacob had never climbed out of his crib before, and the accident occurred suddenly and without warning. It could not have been foreseen or prevented by any reasonable degree of supervision, argued Sherwood’s lawyer, Daniel E. O'Neill of the firm of Boeggeman, George & Corde, P.C., in White Plains.

O'Neill said that his client's decision to place the baby in his crib for a midday nap and then go to the kitchen to make lunch for her other children, was a "typical judgment and decision made by every parent of an infant on a daily basis."

But the biological mother claimed that Sherwood failed to have "audio alarms and monitors, video monitors, warning devices, crib and playpen safety constraints" that would have somehow prevented Jacob from climbing out of his crib or immediately alerted someone if he did.

Parental Responsibilities

Birth parents and foster parents are equally responsible for children in their care since foster parents step into the shoes of biological parents when the birth parents cannot care for their children. This case represented the first time the question of whether foster parents can be sued for neglect supervision had arisen. Courts had already held that biological parents could not be, and a child would have no legal claim for damages against his or her parent for negligent supervision.

Was Sherwood’s conduct negligent? Could closer parental supervision have prevented the accident? Was Sherwood's conduct the cause of the accident? Was it foreseeable?

The argument was that she was not negligent, but even if she had been, the suit could not succeed. The child protective agencies had concluded that there was no negligence. The only question the court addressed was not whether she was negligent, but whether she could be sued.

The New York State Court of Appeals had previously held that if courts allowed lawsuits by parents, virtually all parents could be sued.

"We can conceive of few, if any, accidental injuries to children, which could not have been prevented, or substantially mitigated, by keener parental guidance, broader insight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction," the state's highest court had said.

Foster Parent as Parent

The relationship between Diane Sherwood and Jacob Harris was, with respect to the issues present in this particular case, identical to the unique relationship between a non-foster parent and child. Judgments made by a natural or foster parent are made for the same reason -- to promote the child’s physical, emotional and intellectual development.

In this case, McCabe v Dutchess County, Judge Plummer Lott, writing for the Supreme Court Appellate Division, Second Department, which hears appeals from Richmond (Staten Island), Kings (Brooklyn), Nassau, Queens, Suffolk, Westchester, Dutchess, Orange, Rockland and Putnam County, recently quoted the higher appellate opinion saying, "If within the wide scope of daily experiences common to the upbringing of a child, a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk -- for each injury caused by inattention, unwise choice or even selfishness – a new and heavy burden will be added to parenthood."

Lott concluded in February, "We decline to impose such a heavy burden on foster parents, who agree to care for children who often come from difficult backgrounds and to whom they do not have any natural affinity. To impose such a burden would serve to discourage otherwise qualified and able foster parents from taking on this responsibility, notwithstanding the compensation they receive for so doing."

According to O'Neill, attorney for the foster mother, Taylor Harris has now permanently given up custody of her son. Social Services is prohibited from disclosing whether Jacob, now six, is in foster care again (he is not with Sherwood), in some other type of facility or possibly adopted.

Emily Jane Goodman is a New York State Supreme Court Justice



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