By Frank G. Runyeon

Law360, New York (June 4, 2020, 8:16 PM EDT) -- A New York state court judge on Thursday denied a demand to free hundreds of people arrested amid protests and looting in New York City, accepting the NYPD's argument that the more than 24-hour delays to release people are caused by "a crisis within a crisis" and not malice.

New York Supreme Court Justice James Burke rejected The Legal Aid Society's argument that the police department was slow-rolling arrests of protesters as payback for demonstrations against police brutality and elevated the NYPD's characterization of a department facing the pressures and restrictions of the COVID-19 pandemic at the same time it is deploying nearly all of its officers to battle civil unrest.

"This writ is denied. All writs are denied — Brooklyn, Bronx, Manhattan," Justice Burke ruled, referring to related requests to release protest-related detainees across the city.

On Thursday morning, there were 217 people in Manhattan and 262 citywide who were detained for more than a day. The New York state constitution generally demands the release of such people, barring an appropriate explanation.

The judge said the situation is a "crisis within a crisis," crediting the NYPD's claims that "the entire police department has been deployed" and the Manhattan district attorney is "all hands on deck."

The extraordinary circumstances of the pandemic paired with civil unrest override the New York state constitutional requirement to release people arrested without a warrant or arraignment within 24 hours, Justice Burke ruled.

Within a half-hour of the judge's 4 p.m. decision, hundreds of protesters crowded Foley Square, in the shadow of the state and federal courthouses, chanting "George Floyd!" and "No justice, no peace!" At least 100 officers in helmets and wielding batons stood sentry in front of layers of barricades around the perimeter.

Senior police officials addressing the court Thursday balked at the idea that the police department was retaliating against protesters, with NYPD Criminal Justice Bureau Chief Donna G. Jones arguing that if the police wanted to keep people locked up they would have done it across the board, not only in Manhattan where the vast bulk of the backlog remains.

"If this was some sort of conspiracy, we would be doing this in Brooklyn, Queens and the Bronx," Jones said. "We want them back home with their families."

Janine Gilbert, NYPD's assistant deputy commissioner of criminal justice reform and compliance, told the court that the delays were caused by "unprecedented times."

Gilbert painted a dark portrait of a police department under siege during "extreme civil unrest," describing protesters "jumping on" and "throwing bricks at their vehicles," throwing Molotov cocktail firebombs and "slashing" officers. "Officers have been stabbed, and as recently as last night, shot," Gilbert said, calling it "downright scary."

"They are literally being attacked from all sides," Gilbert said, claiming that two Brooklyn precincts were besieged at one point. "I won't call them protesters, I'll call them rioters."

Gilbert said officers have been assigned 12-hour shifts and no time off.

"We have almost all of our officers deployed to the streets," she said. "It's chaos."

The NYPD said its paperwork has been delayed as a result, which is holding up the release of those arrested en masse. Given the unrest, "it's important to have the officers available" and alert, so they are not issuing summonses or desk appearance tickets on the street as they might have otherwise.

Gilbert went into great detail on the procedures for mass arrests, claiming that "flexi-cuffed" protesters are often kept in buses for hours until the vehicle is filled to a socially distanced capacity of 24, instead of a normal capacity of 80, before driving the detainees to a mass arrest facility where "socially distancing has not been possible" because of the "hundreds of people arrested."

But the virtual arraignments in the city's courts were also to blame, Gilbert noted.

The senior official said there have been 1,730 arrests processed through the mass arrest facility between Friday and Wednesday. The detainees are given masks, food and water, and soap to keep clean, Gilbert said — despite Legal Aid's vociferous claims to the contrary.

Legal Aid counsel Russell Novack argued that the NYPD's arguments were largely a distraction from a key issue — most of the people detained are being held for crimes for which they will ultimately be released anyway, under newly instituted bail reforms, so the police should release them immediately.

In particular, many held on third-degree burglary charges for alleged looting must be released as they are no longer "bail-able" crimes, Novack explained. "That is an automatic walkout," Novack said, regardless of whatever crisis the police department is dealing with.

"Any further delay is unconscionable," Novack said. "Justice delayed is justice denied."

In a statement released after the ruling, Legal Aid said it was "disappointed with the judge's ruling, which is wrong on the law," but noted there has been some progress in winnowing down the numbers of detained New Yorkers. The public defenders said they will "monitor this situation and we are fully ready to appeal if necessary."

"While proclaiming not to be vindictive towards New Yorkers protesting police brutality, the NYPD faulted its own incompetence to distract from its duty to ensure that people are swiftly arraigned and brought before a judge," Legal Aid said in its statement, arguing that regardless, the NYPD is "fully responsible for the hundreds of New Yorkers who are currently languishing in cages, deprived of their due process rights and at an increased risk of contracting COVID-19."

The city's law department sounded a note of vindication after the ruling.

"We are very pleased that contrary to exceptionally unfair and unfounded assertions, the judge recognized that the NYPD is doing the best it can do under very challenging circumstances to safely process arrests stemming from the riots during this pandemic," said Patricia Miller, chief of the special federal litigation division.

As of 6 p.m. Thursday, the courts had made progress on clearing the backlog, but many remained jailed longer than 24 hours — 131 in Manhattan and one in Brooklyn, according to state courts spokesman Lucian Chalfen. The courts would remain open all night in a push to clear the remaining protest-related arrests, he said.

The detainees are represented by Corey Stoughton, Steven Wasserman, Russell Novack, Marlen S. Bodden and Emma Goodman of The Legal Aid Society.

The NYPD is represented by Georgia M. Pestana and Mary O'Flynn of the New York City Law Department.

The case is People of The State of New York ex rel. Corey Stoughton on Behalf of Lazeme Harris et al. v. Dermot Shea, Commissioner, New York City Police Department or anyone having custody of petitioners, index number 100446/2020, in the Supreme Court of the State of New York, County of New York.

--Editing by Amy Rowe.

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