Father arrested when trying to help his kids is reinstated.

Call Him Ismail

Posted by Daniel Ackman | Jun 18, 2023 | 0 Comments

On Friday I represented Ismail B., an erstwhile restauranteur and currently a for-hire vehicle driver, at a hearing challenging the suspension of his Taxi and Limousine Commission license due to an arrest. The TLC orders theses suspensions mindlessly by rote, regardless of the driver's record and without any attempt at investigation. The TLC allows a hearing only AFTER the suspension, not before. Ismail's situation would, I think, show the absurdity and the venality of the entire program.

The hearing was a “hybrid” one, where the judge (from the City's Office of Administrative Trials and Hearings) Ismail and I were in a hearing room in downtown Manhattan and everyone else, including the TLC prosecutor, appeared by video. The technology was glitchy so the hearing was delayed for about an hour.

During the wait, the judge stayed in the courtroom and seemed eager to chat. We wound up talking about the TLC suspension hearings in general with him noting that the drivers now win a lot of the time. Indeed, I told him that since the ruling by a federal appeals court drivers win about two out of three based on a judge's assessment that the suspended driver was not actually a threat to public safety going forward, despite his arrest. But I also offered my view that the judges are almost always wrong in the one out of three cases where they recommend an extended suspension because the drivers are almost always reinstated eventually. The judge said that I might be right statistically (I am) but you can't know in advance— you are just guessing.

That was true, I said, but you are guessing either way. I analogized to sports betting. “If you know your bet is going to lose, you should change how you bet.”

“That's good,” the judge said. “You should write that down.” So I did. Ismail's hearing started soon after.  

Ismail had told me that the arrest was due to a complaint by a neighbor who he believed was actually squatting in garage across the street from his home on Staten Island. Days before the arrest, these same folks had harassed his daughter Miriam, part of a longstanding spat. The daughter. Ismail told me that he had also owned a well-regarded Moroccan restaurant in Bay Ridge called Bab Marrakech, which was doing well until he was forced to close during the pandemic. He was now back driving for a car service.

I called the daughter to testify though we had never spoken (not good lawyering, I know, but I had just been retained) mostly to introduce a video she had taken of the neighbors, which was just five seconds or so, but showed the neighbors being annoying and at least vaguely threatening.

When Miriam came on screen, it was like she had just walked off a movie set, well lit, but with the camera vaguely out of focus. If they made a movie about this case, she'd be played by Gal Gadot. And her testimony was, in a surprise to me, also dramatic.

It was not some suburban dispute. These neighbors, all named Kehoe, had dumped garbage on Ismail's lawn; they had hurled anti-Muslim slurs; they had had threatened violence. On the day of the video, April 10, one of the had punched Miriam. They also asked where her father was and said, ask him to come out and we'll fuck him up. The problems were ongoing.

On cross-examination, the TLC prosecutor asked Miriam, “Aside from calling the police, did you do anything else….” In response, the judge said “Next question.” But it was his last question.

A few days after the assault on Miriam, Ismail called the local precinct to make a complaint about another incident. Officers arrived and said to Ismail and to the Kehoe's that we can arrest all of you or none of you. Predictably, all opted to withdraw their complaints and the cops left.

On April 17, however, one of the Kehoes went to the precinct alone and filed a complaint against Ismail. The neighbor (squatter?) allowed, in the words of the complaint, that Ismail “did kick him in the stomach causing bruising, pain, alarm and annoyance.” 

Five weeks after that, Ismail arrived home and found that an NYPD detective had left his business card. Ismail called the number on the card and the detective asked him to come down to the precinct. Ismail did so and once there, he learned, that a complaint had been filed against him. The detective was apologetic and respectful and said it was a bogus case, but he would have to arrest him. The detective did not cuff him or detain him, but issued Ismail a desk appearance ticket, as it is known, meaning he would have to appear in criminal court at a later date. The detective, however, expressed confidence that the D.A. would quickly dismiss the case.

But it was still an arrest and the TLC was automatically notified. At this point, the TLC, knowing nothing, never making a single phone call, not to Ismail, not to the arresting officer, remaining willfully ignorant of the facts, suspended Ismail's license. Hence the hearing.

After Miriam, Reda B., a physician's assistant, also a native of Morocco and a good friend of Ismail, appeared as a character witness. The highlight: “Ismail loves everybody and everybody loves him.” A bold statement, but, I think, credible.

Asked by the judge if he had any questions, the TLC's man shrugged and said, “I got nothing.”

Ismail testified next. He related his entire history with the Kehoes, noted that he had never been convicted of any crime, had never even been arrested,  and in about eight years of driving for hire had never learned of any complaint by passenger. Indeed, he had never received so much as a summons from the TLC. He also spoke of his restaurant in Brooklyn and the article about it in the New York Times, which he closed during Covid because “no customers.” He admitted to trying to get the Kehoes off his lawn, but was firm that he never kicked anyone.

I think I gave a brisk, but solid closing. At the end I asked the judge to rule from the bench. But the judge said he could not because his ruling would be a recommendation to the TLC chair so it had to be in writing, which I guess is true.

The TLC's guy spoke at greater length if listlessly and pointlessly. He, of course, persisted in his view that Ismail must be deemed a threat to public safety and should remain on suspension. Among the many lowlights: His view that a denial of the arrest charge was “not mitigation.”

At the end, the OATH judge rose and said to Ismail that he wished him and his family good luck and he was “sorry you had to go through this.” The judge's report and recommendation has yet to arrive, but I think he'll be OK.

About the Author

Daniel Ackman

D​​an Ackman focuses on civil rights, administrative and constitutional class action litigation. Perhaps best known for representing New York City's taxi drivers in a series of civil rights class action lawsuits, Ackman's cases have resulted in a half dozen City practices being declared unconstitutional.

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