Police officers have been charged with social distancing enforcement (photo: NYPD)
Mayor Bill de Blasio has made the New York City Police Department the agency primarily responsible for ensuring social distancing in public amid the coronavirus outbreak, and while police data shows enforcement is taking place primarily in black and Hispanic communities, the city has not disclosed any official enforcement policies or guidance given to officers.
In recent weeks, de Blasio and Police Commissioner Dermot Shea have made vague references to "protocols," "instructions," and "the law," while offering explanations of what has come to look like a largely discretionary enforcement model. The mayor has steadfastly defended the NYPD's involvement in social distancing. But it appears City Hall is taking a closer look at police procedures for the first time nearly two months after enforcement began and only after the city released data showing major racial disparities.
"Last night was the first time I saw it and I immediately responded," he said at a press briefing on May 8, in reference to data reported in multiple news outlets the night before and a tweet from the mayor’s account that said, “Saving lives in this pandemic is job one. The NYPD uses summonses and arrests to do it. Most people practice social distancing, with only hundreds of summonses issued over 6 weeks. But the disparity in the numbers does NOT reflect our values. We HAVE TO do better and we WILL."
De Blasio said he had not sought out the enforcement data over the course of the prior weeks “because for weeks and weeks we were focused on saving lives.”
“[W]e don't accept disparity,” de Blasio said, repeatedly stressing that the numbers showed “a huge amount of restraint by the NYPD.”
“When we see disparity, we’re going to address it,” he added.
"We're going to go back, clarify the protocols, more training for officers, more work with supervisors to make sure that they're attentive to these issues. I want to see every community treated fairly, but I want a resolute approach where it's really clear we got to follow these rules," de Blasio said, still several hours before the NYPD released the first batch of social distancing enforcement data to media outlets.
The details of that “resolute approach” to enforcing social distancing are almost entirely unknown. Neither the mayor's office nor the NYPD provided Gotham Gazette with any policies or protocols, while the mayor has repeatedly called the need to enforce social distancing unprecedented and the enforcement itself evolving.
The mayor has mostly spoken in general terms, repeatedly saying that “large gatherings” would not be tolerated and that New Yorkers should follow social distancing guidelines of keeping six feet of space from anyone not from the same household. “We're not going to tolerate even small groups of people not practicing social distancing,” de Blasio said May 3.
Of the 374 summonses police issued for social distancing violations between March 16 and May 5, four out of five have been to black or Hispanic people, according to data released May 8. Several police reform advocates and elected officials, as well as the largest police officer union, have said the police should not be involved in social distancing, suggesting it be reinforced through civic engagement not punishment. De Blasio and Shea have said the NYPD has had 1 million "contacts with the public in our awareness and educational visits across the five boroughs,” but vowed to address the "problem" revealed by the data.
De Blasio has said that large gatherings -- described at times by the mayor as groups with “more than fifty people,” "a few dozen," and "a purposeful group of large numbers" -- would immediately trigger summonses, with arrests for those who resist. But he has indicated that smaller groups would receive a reminder to separate before ticketing. He said people will also be warned to put on face coverings and officers will make efforts to provide them if needed, but disobeying would lead to ticketing or arrest.
But beyond some of the mayor’s comments at press briefings, the only policies publicly available are a limited set of mayoral orders, tracing gubernatorial ones, that ban non-essential gatherings or meetings and require face covering, with few explicit requirements on individual members of the public.
In the days leading up to the initial data release, after a series of violent arrests of people of color were caught on video in the Lower East Side and East New York, de Blasio had to answer questions about how one person can end up with a ticket or arrested and another with a warning and a mask.
"I think the big break line is...the difference between individuals who just need to be reminded to, you know, get that six feet and stick to it, versus when people have made the decision to come together in groups, that's a pretty affirmative decision at this moment in the pandemic," he said on April 30.
Facing intense criticism from many elected officials and others -- including longtime friend and ally Patrick Gaspard, who called the policing "racist" -- de Blasio said he would take a suggestions from, among others, Public Advocate Jumaane Williams and Brooklyn Borough President Eric Adams to include non-NYPD city employees and possibly non-governmental community leaders in social distancing monitoring and enforcement.
According to a New York Times report, one of the people arrested in the East New York incident was charged with resisting arrest.
It is unclear how often social distancing enforcement leads to resisting arrest charges or how this scenario plays into the disparities reflected in the summons data. On Tuesday, the police department released new figures showing officers made 125 "COVID-19 related arrests," of which 90 percent were of black and Hispanic people. A statement from the department notes these are not necessarily social distancing arrests: "The circumstances around the arrests included for example, hate crimes, domestic violence incidents, weapons possession, altercations caused by jumping a line while waiting to enter a supermarket, felony warrants as well as other violent felonies, and resisting arrest."
The NYPD did not respond to a request for a breakdown of the arrest charges. District attorneys in every borough but Staten Island have said they are declining to prosecute social distancing cases when they do not involve other safety threats, Gothamist reported Monday.
But the lack of clarity around what police have and have not been instructed to do to enforce the emergency orders remains.
"Each situation is looked at in degree,” de Blasio said during a May 3 press briefing. “If someone doesn't have a face covering, we're going to offer them a face covering. Someone says, ‘I refuse to have [to] put on a face covering,’ they have a problem and they're asking for enforcement.”
But advocates are concerned that the level of discretion given to officers has enabled biased and, in some cases, brutal policing.
"If officers are going to be the ones to enforce social distancing they should have very clear guidelines to follow," said Michael Sisitzky, lead policy counsel at the New York Civil Liberties Union, in an interview. "But the larger point is that this should not be something where we're leaning on police officers to do this type of enforcement because police officers are not public health officials."
"Our Legal [Bureau] is guiding us on what we can and cannot do," police spokesperson Sgt. Mary Frances O'Donnell told Gotham Gazette. "We do have a policy. I'm not going to be releasing that right now."
The mayor's office did not respond to multiple requests for information about any guidelines or directives issued to the police department related to social distancing enforcement.
"It's just basically, the mayor made this executive order stating you are going to enforce X, Y, and Z and that's basically all it is. The mayor's executive order, this is the code, and this is when you can use it," O'Donnell said, referring to the administrative code that gives the police the authority to enforce mayoral directives during a state of emergency.
Limits and Latitude in Emergency Orders
The “X, Y, and Z” are murky, and the details of how and whether top brass at City Hall or One Police Plaza have instructed officers on "when you can use it" are unknown.
Since the state of emergency issued on March 12, de Blasio's executive orders have made some references to prohibitions on "large gatherings" -- the most explicit reference being a March 15 order stating: "under no circumstances shall there be more than fifty people gathered" -- but largely defer to orders from Governor Andrew Cuomo on matters of individual social distancing in public places.
It was not until April 15 that Cuomo signed an order explicitly requiring New Yorkers to wear face coverings "in a public place and unable to maintain, or when not maintaining, social distance." Another order the next day placed the same mandate on people in public transit and for-hire vehicles.
These are the only two orders related to social distancing on the state's COVID-19 information webpage, entitled "What You Need To Know." Neither defines social distance.
Cuomo has repeatedly said it is up to localities to enforce the measures.
A part of city law known as Administrative Code, section 3-108 gives police officers the power to treat violations of emergency measures as class B misdemeanors "punishable by a fine of not more than five hundred dollars, or by imprisonment for not more than three months, or both."
On April 7, Cuomo signed another order raising the maximum fine for an individual who "is failing to abide by social distancing restrictions in effect in any place which is not their home" from $500 to $1,000.
One question is what size gathering triggers automatic summonses and what leads to a warning.
"The first focus is no large gatherings. But gatherings in general are unacceptable," de Blasio said at an April 30 briefing in response to questions about the threshold for getting a warning versus a fine. "If you're talking a hundred [people] or above, there's just nothing to discuss."
"The gatherings are the most dangerous of all sizes. And then just enforcing regular, clear social distancing," he said.
After a funeral in Williamsburg drew crowds of hundreds of Hasidic mourners at the end of April, de Blasio said the police would pursue summonses for large gatherings "aggressively."
According to police data, when officers issued summonses to individuals involved in "social gathering incidents" the average number of summonses issued per gathering was roughly 10.
"We train our officers more than ever now and we treat them as professionals and they are lifesaving professionals. That's what they do. And they use their judgment. But in this instance they have to feel empowered that if their instructions are not being followed, summonses has to be the go-to now. And so we will use that aggressively," the mayor said on WNYC on May 1.
"I will call Commissioner Shea today to make sure he sends out yet another formal instruction to the men and women of the NYPD that they can use their discretion," he said in the same interview about crowds in parks. The de Blasio administration did not respond to requests for written instructions given to the police.
Many elected officials, reform advocates, and even the largest police union want to see the police department withdrawn from social distancing enforcement.
The administration "needs to employ local leaders such as clergy, and credible messengers with deep ties to their neighborhoods, with a focus on engagement and education, but not enforcement," wrote Public Advocate Williams in a statement Sunday. "It needs to amplify that personal engagement by broadcasting key public health messages, while formalizing a more robust plan for utilizing specific city agencies."
At the end of April, the city announced 1,000 civilians with "enforcement powers" from city agencies like the Parks, Sanitation, and Fire Departments, among others. On Sunday, the mayor said the city was expanding that count to 2,300 by the end of the week.
"This situation is untenable: the NYPD needs to get cops out of the social distancing enforcement business altogether," wrote Police Benevolent Association President Pat Lynch in a statement on May 4. "The cowards who run this city have given us nothing but vague guidelines and mixed messages, leaving the cops on the street corners to fend for ourselves."
Sisitzky from NYCLU said: "The communities that have experienced the worst of police abuse are the same communities that are most heavily impacted by the coronavirus. So to the extent that the police are responding to the coronavirus in those communities, they need to have better rules and guidelines in place.
"What's been really shocking and disturbing in a lot of the videos that have come out is seeing officers without masks or wearing masks incorrectly getting way too close to people, even if they are not actually carrying out enforcement, pushing back people who are filming and getting up in people's faces, not wearing masks," he said. "So it shouldn't be too much to ask for the NYPD to follow the rules that they are purporting to be enforcing."