In a motion filed on Thursday, lawyers at the Bronx Defenders say that police department training documents may be instructing officers to illegally use sealed arrest records.

Michael Appleton/Mayoral Photography Office

NYPD officers.

More than an estimated 3 million New Yorkers who have been arrested have had those records sealed—but the NYPD may still be accessing that information for investigations into what it describes as “alleged or potential criminal activity” in violation of state law, a lawsuit says.

According to the Bronx Defenders, who sued the police department in Manhattan Supreme Court because of the alleged practice in 2018, this means that officers have maintained and are using the records of millions of New Yorkers whose criminal charges were ultimately dismissed.

In a motion filed Thursday in the case, lawyers at the non-profit legal defense group asked a judge to stop the police department from using sealed arrest records for investigations while their class action suit is ongoing.

“It’s an important moment in the case because the NYPD, until now, they’ve been told over and over again that they can’t do this, but they continue to do it,” Niji Jain, a lawyer at the Bronx Defenders, told City Limits. “Now we’re asking the court to actually order them to prohibit and prevent people from accessing sealed records.”

In 2019, a judge dismissed the police department’s motion to throw out the case, saying state law barred police from using sealed arrest information without a court order.

Thursday’s court filing highlights police department training documents obtained in discovery, which suggest police officials may be instructing officers to illegally use the sealed records. The police department has since marked the training materials “confidential,” meaning Bronx Defenders attorneys cannot make them public until they are declassified by the Court.

“Such instructions have likely caused and are likely to continue to cause NYPD personnel to access and use sealed arrest information,” the lawyers wrote in Thursday’s motion.

The police department “admits that it maintains over six million sealed records relating to more than 3.5 million people in at least fourteen interconnected databases that are accessible to NYPD personnel,” the lawyers added. “This is a violation of rights that primarily affects people of color: The vast majority of the records at issue concern Black and brown people.”

The NYPD declined to comment on pending litigation, a spokesperson told City Limits.

It’s not clear whether the city will continue to defend the case—or change NYPD tactics around the use of sealed records—when a new mayor is elected in November. Eric Adams, the apparent winner of the Democratic mayoral primary, did not immediately respond to a request seeking comment.

It is difficult to get an accurate number of how many New Yorkers’ sealed records are percolating through any of the NYPD’s many databases, or how the records are being used. Available numbers, provided by the Bronx Defenders based on police department data the organization reviewed from 2019, suggest that 3.5 million people are affected.

As the group’s lawsuit stretched on because of the COVID-19 pandemic and delays in discovery, those figures soon became outdated, attorneys said.

“Obviously, that number has only gone up as more people have been targeted, surveilled, arrested, and then more arrests have been dismissed,” Jain said, pointing to “hundreds or* thousands” of arrests last summer during the protests that followed George Floyd’s death in Minneapolis—all of which were dismissed.

“So that’s a whole other set of records. The problem is getting worse and the level of access that they [the NYPD] have is growing as time goes on,” Jain said.

*An earlier version of this story quoted Jain as referring to “hundreds of thousands” arrests; that should have read “hundreds or thousands” of arrests. We apologize for the error.