Hijab Removal by the New York Police Prompts a Lawsuit

NEW YORK — One evening in January 2017, after she had been detained for hours in a police holding cell in Manhattan, repeatedly told to remove a head scarf that is part of her Muslim faith and begun to cry, Jamilla Clark relented: She let a New York City police officer photograph her without her hijab.

As the camera flashed, Clark, 39, felt as if she were naked, she later said. Several male officers then stared at the image of her uncovered head as they stored it in a police database.

In August, Arwa Aziz, 45, endured a similar experience at a police building in Brooklyn. Police officers made her pull down her hijab for an official arrest photo as she stood in a cramped hallway with dozens of male prisoners. The police snapped photos of her uncovered head and hair from several angles. The prisoners, who saw Aziz weeping, turned away in respect as the officers looked on.

“It’s the law,” one of the officers told her.

The women’s accounts are detailed in a class-action civil rights suit filed on Friday in U.S. District Court in Manhattan by lawyers who argue that the New York Police Department’s policies for photographing arrestees violate the religious rights of any civilian forced to remove religious head coverings that leave the face unobstructed. It could apply to the hijab of a Muslim, the skullcap or wig of an Orthodox Jew or the turban of a Sikh.

Clark, 39, and Aziz, 45, had been taken into police custody on low-level charges of violating orders of protection that later were dismissed by prosecutors.

Yet because of local police rules that contrast with practices recently adopted by other law enforcement agencies around the country, including in Michigan and Minnesota, and with other state and federal governmental procedures, the images of the women’s uncovered heads live on in databases of the New York Police Department.

Being forced, initially, to have their photographs taken without headwear violates their sense of privacy, “their sense of dignity, and their sincerely held religious beliefs,” said Albert Fox Cahn, legal director of the New York chapter of the Council on American-Islamic Relations and a lawyer representing the women in the federal suit.

In addition to seeking damages for those affected by the photograph policy, the lawsuit seeks a court order prohibiting the Police Department from following that policy.

That those photographs can be retrieved from governmental computer systems and viewed repeatedly as part of a paper court file causes “multiple iterations of the trauma,” said Cahn.

A spokesman for the city’s Law Department, Nicholas Paolucci, said, “We will review the complaint, but we are confident that the police department’s religious head covering policy passes constitutional muster. It carefully balances the department’s respect for the customs of all religions with the legitimate law enforcement need to take arrest photos. Persons who do not wish to remove religious head coverings in front of others have the option of being taken to a separate, more private facility to be photographed.”

Clark and Aziz, like many Muslims, observe their faith by keeping their head and hair covered while in the presence of anyone other than close family members. They are being joined in the suit by Turning Point for Women and Families, a nonprofit based in Queens that is concerned about the impact of police policies on victims of domestic violence who wind up arrested.

Cahn and lawyers from the firm Emery Celli Brinckerhoff & Abady, who represent the plaintiffs, contend that the police practices are unreasonable and violate the plaintiffs’ religious freedom under both the First Amendment and federal law.

The issue highlights the gulf between police policy, as it has evolved over time, and the cultural and religious obligations of those in custody. As it stands now, the policy explicitly says “the arrestee’s head covering must be removed” for the department’s official photograph. (A separate photograph that is not considered official, and is sometimes snapped in a station house, can be taken with an arrestee wearing a religious head covering.)

For many years, no policy existed at all, and commanders were left to their own discretion: Sometimes religious garb, like a hijab, was removed and sometimes it was left in place.

In March 2015, the Police Department tweaked its policy with an “interim order” to ensure that when photographs were taken, those opposed to removing a hijab or other religious item could be taken to a private area at police headquarters at 1 Police Plaza to be photographed by someone of the same gender.

That order has since been incorporated into the department’s Patrol Guide. Yet critics say the policy continues to be confounding. For one, it only deals with the treatment of civilians in those brief moments when their photographs are being snapped. The accommodations the policy calls for are not consistently practiced, critics say. And when they are, they are often conveyed as a warning by officers who tell arrestees that asking for a private photograph could lengthen the arrest processing time and lead to longer detention, said Cahn. He said Aziz took such warnings as a threat.

Even more significantly, Cahn said, the photograph policy does not address the fact that photos exist, possibly to be cataloged and disseminated in the future.

“Each time someone sees a photo of them uncovered, it feels like a new betrayal of their fundamental rights,” said Cahn. “It feels like they’re being violated again.”

Indeed, when the city last month settled three separate cases brought by Muslim women who said that removing their hijabs for photos was a violation of their religious rights, it papered over important nuances in the department’s ongoing treatment of arrestees while staying silent on whether the policy would be altered. The city gave $60,000 to each woman, but said only that doing so was “in the best interest” of all sides without elaborating.

Also, the settlements are, “limited to only those people who have already come forward,” said O. Andrew F. Wilson, another lawyer for the plaintiffs. “And it does nothing to help those women and men who are forced to remove head coverings in the future, or, even in the past who haven’t come forward.” Cahn added that for New Yorkers of different religions, the undercutting of their faith values offers government only slight benefit since many law enforcement experts believe that effective identification is not reliant on the removal of head coverings

For driver’s licenses issued in New York, those sitting for a photo can wear hats, scarves or head coverings as long as their entire face is visible and the covering does not cast a shadow. Likewise, the State Police in New York are unaware of any case where a state trooper made an arrestee remove a hijab if their face was visible, said officials of Gov. Andrew M. Cuomo’s administration.

Federally, the State Department has no requirement that such religious headwear be removed for passport photos. Several police departments around the country, too, see the removal of religious headwear as unnecessary for identifying photographs.

The lawsuit says the city’s policy only “alienates and oppresses faith communities.” In interviews, Clark and Aziz said their encounters with officers had eroded their trust in the police and caused lasting distress.

Robina Niaz, the executive director of Turning Point for Women and Families, said fear among Muslim women of the police was deterring them from stepping forward to report episodes of child abuse and domestic violence.

“In today’s post-9/11 climate, New York City is beset with widespread hostility toward and baseless fear of Muslim-Americans,” the suit says. “In the context of this increasingly polarized setting, it is incumbent on this city’s law enforcement to increase awareness of and sensitivity toward the Muslim-American community.”

For Aziz, a daughter of Palestinian immigrants who is married and has two adult children, her encounter with police has fed residual pain. “I just felt like I was broken,” she said. “It broke me.”