Racial Disparity Spurs Challenge To NYPD COVID Policing

By RJ Vogt | May 31, 2020, 8:02 PM EDT

Seven years ago, a federal judge appointed an independent monitor to oversee reforms of the New York City Police Department's controversial stop-and-frisk practices, which she ruled unconstitutional and racially discriminatory after a nine-week trial.

Now, as protests against police roil the nation, lawyers in the stop-and-frisk case want the monitor, retired Arnold & Porter partner Peter Zimroth, to investigate what they contend is the latest iteration of racial discrimination at NYPD: public health enforcement during the coronavirus pandemic.

In court filings last week, attorneys from the Center for Constitutional Rights, the Legal Aid Society, the NAACP Legal Defense and Educational Fund Inc. and the law firm of Beldock Levine & Hoffman urged U.S. District Judge Analisa Torres to expand the scope of Zimroth's monitorship,which has already contributed to the implementation of body worn cameras at the department.

The May 26 emergency motion for relief also urged the judge to block further police enforcement of things like social distancing and stay at home restrictions.

Darius Charney, senior staff attorney for the Center for Constitutional Rights, told Law360 that police "cannot seem to enforce these rules in a fair or appropriate way."

"We're not saying public safety rules shouldn't be enforced," he added. "They shouldn't be enforced by the police. It should be other city agencies like the parks department or the health department, or other community groups that have already jumped in to help."

The allegations came a day after Minneapolis police killed a black man named George Floyd in an encounter caught on camera, sparking widespread, sometimes violent demonstrations that, in New York, saw police vehicles ramming through crowds in Brooklyn over the weekend.

According to the emergency motion, NYPD's policing during the pandemic demonstrates the same sort of racial disparities that spurred unrest across the country: more than 80% of social distancing violation summonses — tickets which require court appearances and can lead to arrest warrants—were issued to black or Latinx people during the span between March 16 and May 5, despite the fact that those groups constitute just half the city's total population.

A Legal Aid Society analysis of more than 32,000 social distancing complaints to a city hotline found that four out of the five precincts receiving the most complaints were in "neighborhoods that are not majority Black or Latino."

And yet, "78.9% of COVID-19 related summonses and 74.1% of COVID-19 related arrests for which the Legal Aid Society was able to identify a precinct occurred in majority Black or Latino precincts."

Several of the arrests and police encounters have been captured on video and spread widely via social media. In one, officers are seen dragging a black woman away from her child in a subway station for not properly wearing a mask; in another, an officer punches a young black man in the face while he's being subdued on a sidewalk for not socially distancing, then threatens onlookers for not wearing masks.

The footage contrasts sharply with NYPD's own Twitter posts publicizing its efforts to hand out masks.

Crystal Pope, a black woman who lives in the predominantly black and Latino neighborhood of Hamilton Heights, detailed some of the disparate enforcement she's seen by NYPD in a declaration attached to the motion.

She said she saw an officer choking an adolescent black boy through the glass doors of an apartment lobby in early April after he was caught in a group of more than 10 people; when she entered the lobby herself, she said she was subsequently maced without warning.

"You see a lot of situations in Caucasian neighborhoods, police officers are handing out masks in parks," she told Law360. "The parks are locked in Hamilton. What's the difference?"

Another declaration by a 22-year-old black man named Malik Harris alleges he was arrested for not wearing a mask, subsequently searched and charged with marijuana possession, then booked into a cell with over 20 people, none of whom had masks. He spent three weeks incarcerated pretrial on Rikers Island, a COVID-19 hotspot, before charges were ultimately dismissed.

According to Charney, the police have not been forthcoming with details on coronavirus-related policies and procedures or body camera videos of related encounters; the motion filed Tuesday also urged Judge Torres to direct Zimroth to provide documents and data.

In a statement to Law360, Oleg Chernyavsky, assistant deputy commissioner for legal matters, said NYPD has already responded to "numerous inquiries for data" and also participated in a May 22 city council hearing. The statement did not directly address the allegations of racial discrimination.

"The NYPD has made well over one million contacts with the public in regard to executive orders relating to the COVID-19 pandemic with only approximately 450 summonses issued," Chernyavsky added.

One of those inquiries came from New York Attorney General Letitia James, who called the apparently unequal enforcement "deeply troubling" last month.

"It is inherently wrong to aggressively police one group of people, yet ignore another group that commits the same infraction," James said in a May 13 statement. "The NYPD must better ensure that a New Yorker's race, color, and neighborhood does not determine how they are patrolled."

Last week's legal effort comes as police departments across the country grapple with enforcing public health directives scientists say are critical to slowing the spread of COVID-19, the deadly infectious disease that's killed more than 100,000 Americans since February.

Mayor Bill de Blasio has sought to address disparate impact concerns by rolling back some police enforcement of things like face coverings; he also said in early May that the city would send out 2,300 "civilian ambassadors" to remind New Yorkers to adhere to public health directives as summer heats up.

In some ways, NYPD officer representatives have sided with the CCR about reining in police enforcement, with Police Benevolent Association President Patrick J. Lynch saying in early May that "the NYPD needs to get cops out of the social distancing enforcement business altogether."

After the department nixed arrests and tickets for people not wearing masks "absent of a crime or other violation being committed," Lynch doubled down on his prior statements.

"Another policy full of caveats and exceptions will create more problems than it solves," he said on May 15. "The new policy should be a single sentence: Police officers are not responsible for enforcing social distancing or other public health directives."

Still, the attempt to use the existing stop and frisk litigation to increase oversight of COVID-related enforcement was contested by Jeffrey Schlanger, NYPD deputy commissioner for risk management.

"While the department is fully cooperating with multiple inquiries regarding the enforcement of COVID-related violations, the issue falls outside the scope of the federal Monitorship," Schlanger said in a statement.

Charney, however, noted that the alternative legal options — such as individually suing a police officer over alleged civil rights violations — are exceedingly difficult due to concepts like qualified immunity and the financial cost of litigation.

"And the other problem is, the remedy there would be that maybe you get some money," he added. "But the NYPD pays out tens of millions in settlements every year and that doesn't seem to affect its behavior. What you really need is structural change and injunctive relief — and that's what a class action lends itself to."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Rebecca Flanagan.

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