Virus, Volume Slow Release For Arrested Protesters In NYC

By Emma Whitford
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Law360 (June 2, 2020, 9:49 PM EDT) -- The coronavirus pandemic is slowing arraignments and prolonging custody for hundreds of New Yorkers arrested during citywide demonstrations protesting the killing of George Floyd, an unarmed black man, by Minneapolis police, attorneys told Law360.

Mass arrests always present a logistical challenge, according to the National Lawyers Guild, a bar association whose members provide free legal assistance to protesters. Now, with sluggish virtual arraignments, 131 people had been held for more than 24 hours as of Tuesday evening, in violation of the New York State constitution, for protest and unrelated arrests. 

Of the total, 108 are in Manhattan, 10 are in the Bronx, 11 are in Brooklyn and two are in Queens, according to the Office of Court Administration. These individuals are part of a larger group of 580 people awaiting arraignment citywide, according to the court.  

"What's going on is a mixture of obstacles," attorney Elena Cohen, president of the National Lawyers Guild, told Law360. "The main obstacles are the changes with COVID-19 with how courts are operating, which is causing massive delays. And mass arrests make any situation more complicated."

"One thing happening [is] waiting for all the tech to work," said Chava Shapira, a law school graduate who observed arraignments in Brooklyn over the weekend. "Sometimes things got stalled." 

According to Cohen, protesters are typically transported either to the precinct closest to the spot where they are arrested, or police headquarters in lower Manhattan. But in recent days, she said, the sheer number of arrests — some without legal observers present — have made tracking difficult. Families are anxious.

"The NYPD absolutely needs to make a phone number that people can call to find out where someone is being taken," Cohen added. "You have friends and family who haven't talked to a person in 48 hours, with no idea where they are."

Meanwhile, civil rights lawyer Gideon Orion Oliver added, "many people are close together in a cell."

Common protest-related charges, such as obstructing governmental administration and resisting arrest, do not require arraignments. People arrested on these charges are typically released with a desk appearance ticket. 

During the first few nights of protests, which commenced last Thursday, "the majority of people [arrested] were getting summonses or a desk appearance ticket," Oliver added. "Now this number of cases going through arraignments means a lot more serious charges that are not eligible for DATs."

The majority of more than 400 people held in Manhattan on Tuesday afternoon awaiting arraignment were charged upon arrest with burglary in the third degree related to alleged looting of big box and luxury stores, according to courts spokesperson Lucian Chalfen. 

The burglary charge is not eligible for bail under recently passed pretrial reforms, Chalfen said. This means that if a person is arraigned on that charge, they must either be released on their own recognizance or with supervision requirements.

The NYPD did not immediately respond to a request for the cumulative total protest arrests or for how many people were released with a summons or desk-appearance ticket.

On Monday alone there were "nearly 700 arrests and that number will go up as tallies are coming in," NYPD Commissioner Dermot Shea said during a Tuesday press conference.

Manhattan set up a second virtual arraignment court on Monday, according to Chalfen. A large screen in the courtroom projects the parties. 

Patrick Tyrrell, a housing attorney and volunteer legal observer with the NLG, said Tuesday evening that he spoke to several people outside Manhattan Criminal Court who had been in custody for multiple days. "Same story from five guys I talked to," he said. "Arrested Sunday. Arraigned today via video. Fifteen to 20 guys waiting together in a cell." 

Chalfen blamed the NYPD for the slow processing pace.

"To docket the case and arraign someone, the court needs the arrest paperwork to be processed which the police department is doing glacially," he said.

The NYPD did not immediately comment on this accusation.

"Our Assistant District Attorneys are all-hands on deck, with our entire trial division pitching in to ensure that we are doing our part to evaluate and process cases as quickly as can be done," Danny Frost, a spokesperson for the Manhattan District Attorney's Office, told Law360. 

On Tuesday night, the Legal Aid Society announced that it is filing an emergency lawsuit against the NYPD on behalf of the 108 people in custody in Manhattan who have been detained for longer than 24 hours.

--Editing by Emily Kokoll.

Update: This story has been updated to clarify that the arraignment data pertains to all arrests citywide.

For a reprint of this article, please contact reprints@law360.com.

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