Krimstock hearing

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A sample of the "Vehicle Seizure" form that the NYPD is required to give vehicle owners upon seizing a vehicle. The text notifies recipients of their right to a prompt Krimstock hearing.

A Krimstock hearing is an administrative law proceeding that offers vehicle owners the opportunity to recover possession of a vehicle confiscated by the New York City Police Department (NYPD) during an arrest.[1][2] The NYPD has the authority to impound vehicles that it claims were used as an instrument of a crime, and later to seek permanent ownership of these vehicles in civil forfeiture actions.[1] Such forfeiture actions, like the Krimstock administrative hearings, are entirely separate from any criminal charges the vehicle owner may face stemming from his or her arrest.[1]

At the hearing, the NYPD must demonstrate (1) that it followed proper procedure in arresting the person and taking the vehicle, (2) that it is likely to win the civil forfeiture action, and (3) that returning the vehicle would cause a danger to the public.[3] If the NYPD fails to demonstrate one of these three things, the vehicle is returned to its owner pending the outcome of the separate civil forfeiture action.[3]

The Krimstock hearing process was ordered into creation by the United States Court of Appeals for the Second Circuit in a 2002 opinion authored by Judge Sonia Sotomayor (who later became a justice of the U.S. Supreme Court).[4] The hearings are remarkable because they are a recent example of an entirely new, judicially created, procedural due process right.[4] The hearings are conducted by the New York City Office of Administrative Trials and Hearings (OATH) and presided over by New York City administrative law judges.[1] In 2003, the New York State Court of Appeals mandated that similar hearings be conducted in Nassau County, Long Island.[5]


The NYPD began seizing vehicles upon the arrest of the driver in the 1980s pursuant to a city ordinance that allowed for such forfeiture when the vehicle was used as an instrument of a crime.[6][7][8] Vehicles were regularly confiscated from people charged with both misdemeanors and felonies, ranging from drug possession and solicitation of prostitution to illegal gun possession.[6] Unlike the older New York State civil forfeiture statute, the NYC law did not provide for any type of prompt due process hearing.[9] Vehicles were held for months and even years while owners waited for the NYPD to bring civil forfeiture actions.[10] The vast majority of the time, however, these forfeiture actions never came. In 1998, for example, of the 1,800 vehicles seized, less than one percent went to trial.[11] In 1999, the NYPD added driving while intoxicated (DWI) to the list of crimes that they would impound vehicles for, resulting in thousands of additional seizures.[12]

In 2000, the Special Litigation Unit of The Legal Aid Society brought a class action lawsuit on behalf of a number of vehicle owners who had been waiting years for the return of their vehicles.[4] One of those vehicle owners, a named plaintiff on behalf of the lawsuit's certified class, was Valerie Krimstock. Her name became part of the title of that lawsuit, Krimstock v. Kelly — hence the name "Krimstock hearings."[4] In 2002, the Second Circuit heard the case. The majority opinion was written by Sonia Sotomayor.[4]

Sotomayor wrote that under the Due Process Clause of the Fourteenth Amendment, vehicle owners have a right "to ask what ‘justification’ the NYPD has for retention of their vehicles during the pendency of proceedings, and to put that question to the NYPD at an early point after seizure in order to minimize any arbitrary or mistaken encroachment upon plaintiffs' use and possession of their property."[4]

The Second Circuit applied the three-part balancing test of Mathews v. Eldridge. It reasoned that: (1) a significant private interest was affected considering the length of the retention and given that vehicles are "often central to a person's livelihood or daily activities"; (2) the risk of erroneous deprivation was great considering that NYPD’s pecuniary interest and the fact that no compensation was paid for the depreciation and replacement costs of vehicles erroneously held; and (3) the Government’s interest in the vehicles not being sold or destroyed pending the forfeiture proceeding could be satisfied by "less drastic measures than continued impoundment," including bond or a restraining order.[4]

In consultation with the parties, the United States District Court for the Southern District of New York chose OATH, a tribunal in the executive branch of NYC government, which adjudicates matters for a variety of NYC agencies, as the location for the new Krimstock hearings.[13] By 2004, when the hearing began, the NYPD held over 6,000 vehicles in "legal limbo."[14]

Through the continuing advocacy of The Legal Aid Society, the Krimstock hearing process has been refined and the original Krimstock order and judgment[13] has been twice amended by the United States District Court for the Southern District of New York.[2][15]

The Krimstock process[edit]

The procedure for the Krimstock process is outlined in the Third Amended Krimstock Order.[2] It is further directed by the OATH Rules of Practice[16] and precedent set by past Krimstock decisions. The Center for New York City Law at New York Law School keeps an archive of all OATH decisions, including Krimstock decisions.[17]

The return of vehicle under the aegis of a Krimstock hearings may be only temporary. Whether the vehicle is ultimately confiscated is determined at the civil forfeiture proceeding in New York State Supreme Court.[18]

Beginning the Krimstock process[edit]

Upon seizing a vehicle, the NYPD is required to give the vehicle owner a Vehicle Seizure Form.[19] This form instructs the vehicle owner on how to request a Krimstock hearing.[19] (All vehicle owners are entitled to a hearing, but hearings are scheduled only when an owner requests one.)[19] Vehicle owners must attend the hearing.[20] Because vehicle forfeiture is a civil matter, vehicle owners are not entitled to a free attorney as defendants are in a criminal trial.[21] Accordingly, some owners are represented by an attorney, but many are pro se. OATH attempts to provide assistance for pro se owners, including a detailed how-to website created in 2011 in conjunction with the Lawyering in the Digital Age Clinic at Columbia University School of Law.[1] It also makes referrals to potential pro-bono representation.[21]

The settlement conference[edit]

On the day of the Krimstock hearing, an OATH administrative judge will hold an informal settlement conference between the NYPD representative and the vehicle owner.[22] Depending on the severity of the crime the owner is accused of committing, the NYPD may offer to return the vehicle and cancel the civil forfeiture action if the vehicle owner agrees to certain conditions.[22] The conditions will depend on the circumstances of the arrest.[22] If, for example, the owner was arrested for DWI and there are no aggravating factors, the NYPD may agree to return the vehicle if the owner completes a treatment program.[23] Or, as another example, if the vehicle owner was not in the vehicle at the time it was seized and did not know that it was being used for criminal activity, the NYPD may return the vehicle as long as the owner promises not to lend the vehicle to the arrested driver again.[24]

The hearing[edit]

The hearing is conducted in what looks like a standard court room.[25] Both the NYPD and the vehicle owner are entitled to call witnesses and present evidence.[25] The rules of evidence in effect at a Krimstock hearing are less restrictive than those at a criminal or civil trial.[26] Hearsay evidence deemed reliable is admissible.[26] Accordingly, the NYPD is allowed to introduce the police report of the arrest without any police officer testifying in person.[26] Vehicle owners do not have to testify, but administrative judges are allowed to draw a negative inference from an owner’s silence.[25] Owners are free to decide to testify about some issues, but remain silent about others.[25]

The NYPD’s burden at the hearing[edit]

At the hearing, the burden is on the NYPD to demonstrate that the vehicle should remain impounded pending the outcome of the civil forfeiture action.[27]

The NYPD must demonstrate that it gave the vehicle owner proper notice of the right to a Krimstock hearing. The driver should have been given a Vehicle Seizure Form at the time of the arrest and a second form should have been mailed to the vehicle owner within five days of the arrest.[27]

The NYPD must also convince the administrative law judge that it is more likely than not that:

  1. The NYPD had probable cause to stop the vehicle and arrest the person inside. If the NYPD claims contraband was found in the vehicle, the NYPD must show that there existed probable cause to search the vehicle as well.
  2. The vehicle was used as the instrumentality of a crime, and, accordingly, the NYPD has a likelihood of winning the civil forfeiture proceeding in state court and obtain permanent confiscation of the vehicle.
  3. Returning the vehicle would make the public less safe.[27]

National impact[edit]

In Alvarez v. Smith, the absence of Krimstock-like interim hearings under an Illinois forfeiture statute was challenged in the Supreme Court of the United States.[28] Upon learning that seized property had been returned, the Supreme Court determined that there was no longer a case or controversy to be ruled on and, accordingly, declined to set a national rule on when Krimstock-like interim hearings are required by due process.[28]

See also[edit]


  1. ^ a b c d e A Guide to Krimstock Hearings in NYC - Welcome
  2. ^ a b c 3rd Amended Krimstock Order, October 1, 2007
  3. ^ a b A Guide to Krimstock Hearings in NYC - A Quick Summary
  4. ^ a b c d e f g Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002)
  5. ^ County of Nassau v. Canavan, 1 N.Y.3d 134, 802 N.E.2d 616 (2003)
  6. ^ a b O'Brien Amicus, Alvarez v. Smith, page 5
  7. ^ N.Y.C. Code Section 14-140
  8. ^ 38 R.C.N.Y. Sections 12-01 through 12-19
  9. ^ O'Brien Amicus, Alvarez v. Smith, page 6-7
  10. ^ Rohde, David (28 February 1999). "The High Price of Drunken Driving Law". The New York Times. p. 28. 
  11. ^ O'Brien Amicus, Alvarez v. Smith, page 7
  12. ^ Fries, Jacob H. (3 July 2001). "4,000 Cars Seized in Effort To Halt Drunken Driving". The New York Times. p. 2. 
  13. ^ a b Krimstock Memorandum Opinion and Order filed August 15, 2007
  14. ^ Saulny, Susan (9 March 2004). "City Police Giving Back Seized Cars". The New York Times. p. 1. 
  15. ^ 2nd Amended Krimstock Order, December 6, 2005
  16. ^ OATH Rules of Practice
  17. ^ CITYADMIN, A library of decisions decided by NYC agencies
  18. ^ A Guide to Krimstock Hearings in NYC - Separate Forfeiture Proceedings are Possible
  19. ^ a b c A Guide to Krimstock Hearings in NYC The Police Must Give you Notice
  20. ^ A Guide to Krimstock Hearings in NYC - You Must Attend the Hearing
  21. ^ a b A Guide to Krimstock Hearings in NYC - You May Bring an Attorney
  22. ^ a b c A Guide to Krimstock Hearings in NYC - The Settlement Conference
  23. ^ A Guide to Krimstock Hearings in NYC - If You were Arrested for DWI
  24. ^ A Guide to Krimstock Hearings in NYC - If You are an Innocent (Uninvolved) Owner
  25. ^ a b c d A Guide to Krimstock Hearings in NYC - The Hearing Itself
  26. ^ a b c A Guide to Krimstock Hearings in NYC - The Police Officer Will Not be Present
  27. ^ a b c A Guide to Krimstock Hearings in NYC - Plan to Respond to what the Police Must Prove
  28. ^ a b Alvarez v. Smith, 130 S. Ct. 576 (2009)

External links[edit]