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In my three-month career as a public defender, I already have had a number of clients who primarily make a living as Uber drivers.
Uber and Lyft drivers in New York City are required to be licensed by the Taxi and Limousine Commission. I’ve learned to anticipate a call from many of these clients shortly after their arrest letting me know their TLC license has been suspended and they cannot work. They are also likely to tell me that their car is leased, and if they cannot work they cannot make their car payments, which would be devastating to their ability to work in the future.
Where I live as a new public defender (a law graduate and NYS bar passer, but required to inform you I am still not a lawyer, for at least 28 more days, hello First Appellate Department character and fitness committee) in misdemeanor-only land, this consequence most often comes when a person is accused of with assault in the third degree, a charge which makes up maybe half my caseload so far. Any time there is a fight, a scuffle, anything physical, and someone calls the police, one or both people are getting charged with third-degree assault, regardless of the actual seriousness of the incident. TLC’s position is that anytime anyone is arrested for anything “violent,” regardless of the details, the agency is justified in suspending their license pending the outcome of the criminal case.
As a sort of abstract principle, it vaguely makes sense. In practice, TLC takes away the livelihoods of its drivers without regard to the facts of each individual case, makes it nearly impossible for drivers to challenge their license suspension, and pushes people into pleading guilty in criminal court regardless of the merits of their case just so they can go back to work.
I am not the first to notice that the TLC license suspension policy is unfair. The agency was sued in federal court over a decade ago for this practice. The case wound its way through the courts, going from district court to the appellate court and back a couple of times. The (probably?) final decision resolving the case in the Second Circuit came out this past July [it’s Nnebe v. Daus, 931 F.3d 66 (2d Cir. 2019)]. The court held that the hearings the TLC provides drivers to challenge their suspensions are so unfair they violate the 14th Amendment’s due process clause. (“Meaningless” is the word the court used.)
Between 1999, when the TLC first started suspending licenses after an arrest, and the Nnebe decision in summer of 2019, exactly zero drivers had their licenses reinstated by the TLC while their criminal case was still open.
This is how TLC’s process works: drivers who are arrested for any of the crimes deemed worthy of suspension are sent a notice in the mail letting them know about the suspension and giving them the option to request a hearing about the suspension. Nearly ever driver requests a hearing. Up until 2007, a judge who worked for TLC adjudicated these hearings, and no one ever won.
“The hearings under the TLC ALJs ‘resulted in a nearly unbroken record of recommendations that the suspension be continued.’ In only three cases out of hundreds of hearings was a contrary recommendation made. A single ALJ, Eric Gottlieb, was responsible for all three. He was promptly reprimanded by his supervisor, and subsequently took care not to make another such recommendation for fear that he would be transferred to a less desirable work location.”
Nnebe at 73.
In late 2007, the hearings moved to the NYC Office of Administrative Trials and Hearings (OATH), which is a separate agency from the TLC. Theoretically, this would make the process a bit more fair to the drivers, but the OATH judges did not actually have final say. Their decisions were mere suggestions for the TLC Chairperson to review. In the decade or so that the hearings have been held at OATH, about a half dozen drivers won their cases in front of OATH judges. But the TLC Chairperson never once lifted a suspension.
In July, the Second Circuit ruled the post-suspension hearings were not meaningful and ordered the TLC to fix the process. Technically, it sent the case back down to the district court to make TLC fix it, but in the meantime a handful of drivers have actually seen their suspensions lifted by the Chairperson after favorable OATH decisions.
Problems remain.
For one thing, the fastest a person is going to see a decision from the TLC Chairperson is maybe a month and a half after their arrest. That’s shorter than the three-plus months it is likely to take to resolve a criminal case, but still a significant amount of time to be out of work, especially if that work is dependent on a leased car that could be repossessed. The real problem here is that TLC assumes an arrest—nearly any arrest—means a person is a danger to public safety, even though the weight of the evidence suggests the opposite.
According to the latest Nnebe decision, at least 75 percent of drivers end up resolving their case “favorably”—which mostly means either their case is dismissed or they take a plea to a lower charge—after which the TLC automatically lifts the suspension. Excluding driving-while-intoxicated offenses, which most can agree are 1) job-related and 2) implicate passenger safety, 90 percent of drivers with arrest-related license suspensions have them automatically reinstated after resolving their criminal cases.
For me, it sort of doesn’t matter if the post-suspension hearings are fair or not (especially because very few drivers have the resources to have a lawyer conduct an OATH hearing, without which they are still almost guaranteed to lose). The root of the problem is the suspensions themselves. The time to ask questions is before taking away someone’s livelihood, not after.* If the TLC is aware that in 9 out of 10 cases it will lift the suspension automatically, what is the justification for depriving so many drivers of their right to pay their bills while the charges are pending? The TLC knows it is a question of when, not if, drivers will return to work, but it issues suspensions pro forma anyway.
It is a little unfair to pin this entirely on the TLC, as it’s an issue that originates in the prosecutor’s office. The way prosecution works in NYC (and in basically every jurisdiction in the country) is prosecutors overcharge people with crimes for which they have no intention of convicting them, but which have very scary consequences (jail, deportation), in order to coerce a guilty plea to a lower charge.**
In practice, a person with an assault in the third charge, for which the TLC is happy to destroy someone’s finances, is almost always going to end up with a “favorable” disposition lowering the charges to a disorderly conduct violation or an outright dismissal. Unless they already have a lengthy criminal record, a regular habit of assaulting people, or the gall to demand a trial, the DA’s office will ultimately offer a few days of community service or a small fine. This happens even with intimate partner violence, though in those cases anger management or some other kind of class might be involved.
For the most part, after being charged with a misdemeanor, a person will walk out of the courthouse without a criminal record, and potentially without pleading guilty to anything at all. In my opinion, the real punishment in criminal court is the hours and hours of a person’s life devoted to waiting around for their case to be called over the handful of court visits it takes to negotiate the prosecutor down to one of these “favorable” dispositions.
The TLC’s license suspension policy refuses to acknowledge this reality. It buys into the performance of overcharging people in order to extract guilty pleas from them, and as a result ends up being more punitive than the criminal court would ever be. True fairness would require much more than an after-the-fact hearing. It would require uncomfortably challenging the system, and I don’t see that happening anytime soon.
* The Nnebe lawyers also tried this argument in an earlier part of the lawsuit saga against TLC, but quickly lost. The Constitution does not go so far as to require the government to think before it acts.
** By “overcharge” I don’t exactly mean that their charges don’t match the actions they are accused of often they do (whether the accusations are true is a different thing), but the punishments set for those crimes are wildly exaggerated, effectively giving prosecutors a very high ceiling to work with, which scares people into pleading guilty.
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