On Friday, the City Council Committee on Public Safety will hold a hearing on the NYPD’s enforcement of social distancing requirements. A main focus, undoubtedly, will be the NYPD’s enforcement of the Governor’s Executive Order requiring New Yorkers to wear face masks when they are within six feet of each other. The NYPD should not be enforcing this order. We have seen the results: video after video show excessive force, and Black and Latinx persons accounted for 90% and 82% of COVID-19-related arrests and summonses, respectively.
We have a public health emergency. We need public health solutions, not policing. The best solution, as proposed by several electeds and organizers, is to have public health professionals and community groups lead public education efforts to create and maintain new public health norms, like wearing masks and social distancing, until a vaccine is available. In order for these efforts to be successful, we must also meet people’s basic needs. Social distancing and mask wearing must be a part of an overall, integrated public health plan that includes access to shelter, food and health care.
But, while the mayor says that the City will hire 2,300 civilian ambassadors to promote wearing masks and gloves, he stubbornly stands by the idea that the NYPD should still enforce social distancing. According to the mayor, the NYPD will no longer enforce the mask requirement unless not wearing a mask presents a “serious danger.” He claims that this decision is his and his alone to make. The mayor’s approach is wrong, and he grossly overstates his power. The Council should reign him in.
The mayor’s “serious danger” approach presents serious danger for discriminatory enforcement. What makes one group of people without a mask a serious danger, but not another group of people? What will guide police officers in making this decision? (Tellingly, the police union has noted a lack of training on social distancing enforcement and made clear that it does not think the NYPD should be involved in social distancing enforcement.)
Instinctively, we know how this will play out. Especially people like me who have been stopped repeatedly because of the color of our skin. I have been stopped for walking in a high-crime neighborhood (Harlem, my own neighborhood), looking at a police officer, driving with a light on in the car, and having too many people in a cab. We definitely do not need to come up with more reasons for police to stop people. Anecdotal experiences like mine are supported by a wealth of research showing that the concept of danger in this country is linked to the darkness of one’s skin. In New York City, we need look no further than the NYPD’s stop-and-frisk practices, which were ruled unconstitutional because of its racial disparities. There, the court unequivocally concluded that the NYPD stopped Black and Latinx persons with less justification than whites.
Fortunately, the mayor cannot just do what he wants to do. We have three branches of government. It is the legislature’s job to pass laws, the mayor’s job to implement them, and judges’ job to interpret them. Where laws enacted by the political process clearly state a lawful policy, the mayor must implement them. Here, the New York City Administrative Code has had a provision for decades reflecting a clear policy decision that public health officials should direct the City’s efforts to combat the spread of a contagious disease. The title of the law makes clear that it is on point: “Measures to prevent the spread of disease.” The law assigns to the Department of Health the jobs of closing streets and taking other measures to contain disease. Overseeing mask wearing and social distancing goes hand-in-hand with this.
If the mayor does not relent to a law already on the books, the Council, of course, may pass a law specifically addressing social distancing. It might seem extraordinary for the City Council to need to direct the mayor to have a response exclusively directed by public health officials and community groups. But, it can and, if need be, it should. This is an operations decision that rests with the Council, not the mayor.
Public health issues require public health solutions. This is common sense. The mayor should stand down. If he doesn’t, the Council should pass a law making him stand down.
Alvin Bragg is a visiting professor and co-director of the Racial Justice Project at New York Law School. He served as the chief of Litigation & Investigations for the City Council and Chief Deputy New York State Attorney General.