In March and April of 2020 drastic emergency measures were imposed by federal, state, and local government authorities for the stated purpose of curbing the spread of COVID-19. By March 16, 2020, all states had declared a State of Emergency, and by April 7 all states except four had imposed a “Stay at Home” order of some kind. Counties and municipalities also decreed their own separate COVID-related orders. As usual in the US, the details greatly varied by jurisdiction — some measures were far more stringent than others. But in general, a new legal regimen had taken hold across the country, in the name of combatting what was described as a once-in-a-lifetime public health crisis.
From the outset, a pressing question — still yet to be adequately answered — was how exactly these Emergency Orders would be enforced on a practical on-the-ground level. Were police officers being directed to issue summonses and make arrests? If so, under what authority? The diffused patchwork of laws in the US made this difficult to ascertain in any kind of comprehensive way.
Last April, I went to Delaware after coming across reports on social media that police were pulling over drivers with out-of-state license plates, pursuant to the Governor’s COVID-related Emergency Order. While I wasn’t pulled over myself, I did speak to a number of people who had been — seemingly arbitrarily, since they were from nearby Maryland and routinely came to Delaware for work or other innocuous purposes.
Even if one believed that certain emergency measures were justified under the circumstances, the potentially perilous implications for civil liberties during that period were unmistakable. State authorities had been vested with vast new power to surveil and monitor citizens, regulate their behavior, and punish them for non-compliance — and yet our knowledge of how these authorities were actually deploying their powers was severely limited. Widespread closure of courts further complicated the situation.
I knew that assembling any kind of nationwide database of arrests and summonses was going to be almost impossible, so I started with jurisdictions that happened to be in my personal vicinity. Last May, I submitted a FOIA request (called an OPRA request in New Jersey) to the Newark, NJ Police Department for records related to their enforcement of COVID-related violations stemming from state and local emergency Executive Orders. I received nothing for almost a year; conveniently, COVID also gave government agencies a built-in excuse to massively delay their response time to these kinds of records requests.
Finally I received a CD-ROM with the requested materials. It contained a list of over 2,600 summonses issued in the city of Newark between March 21 and May 13 of 2020 — at least 1,100 of which were expressly related to alleged COVID violations. The violations are imprecisely categorized, but all had at least something to do with COVID.
The data makes clear that within the March — May 2020 time frame, Newark Police went on a tear charging people with novel interpretations of crimes. One of the statutes they cited to bust people, APP. A:9-49(A), is defined as:
Commit[ing] any unauthorized or otherwise unlawful act during the threat or imminence of danger in any emergency that jeopardizes the health, welfare and safety of the people
Here are some examples of “unauthorized or otherwise unlawful acts” which allegedly contributed to “jeopardiz[ing] the health, welfare, and safety of the people” that police accused people of committing:
- Sitting in park
- Sitting and talking to others
- Sitting on milk crate
- Visiting with no legitimate purpose
- Hanging out
- Being in the street in the company of another
- In street in the company of others
- Sitting on bench smoking
- Encouraging others to not social distance
- Standing outside enjoying the weather
- Socializing with another
- Not Social Distancing
- Standing without mask
These violations are punishable by up to six months in prison and a fine of $1,000.
On April 16, 2020, a woman was charged by police with violating another statute, 2C:24-7.1A1, defined as “recklessly engag[ing] in conduct which creates a substantial risk of bodily injury to another person.”
Her violation was described by police as: “did knowingly endanger other citizens by not having a face mask as per governor executive order to have one to quell the high rate of covid-19 exposure.” [All typos in these descriptions are police errors]
Here is a small sampling of the summonses issued on one day, April 3, 2020, taken from the police log I obtained:
All the above individuals were charged with “Obstructing Administration of Law or Other Governmental Function,” a disorderly persons offense.
As you can see, a large number of people, most but not all of whom are listed as non-white, were explicitly accused by police of disobeying the orders of the Governor of New Jersey, Phil Murphy. Here are some examples of what police accused citizens of doing in defiance of the Governor. (Again, all typos are theirs, not mine!)
On March 30, a man described as Black was charged with “CONGREGATING WITHOUT MAINTAINING A DISTANCE OF 6FT, AND WITHOUT A DESTINATION, IN VIOLATION OF THE GOVERNOR’S ORDER.”
On April 27, a man described as Black allegedly “failed to obey governor’s exec. order by taking part in non-essential travel & failing to social distance.”
On April 28, a man described as Black was issued a summons for “violation of governor’s exec. order by not practicing social distancing during covid 19 state of emergency.”
On May 1, a man described as a White Hispanic was issued a summons by police for “Standing in violation of Governors Orders.”
For all of the above violations, police said no warning was given.
I asked a spokesperson for Phil Murphy, Alyana Alfaro Post, what she thought of so many people being ensnared by the criminal justice system for the crime of defying the Governor by doing things like standing outdoors. She responded in typically banal fashion: “Throughout the pandemic, local law enforcement has enforced executive orders and issued citations when they deem appropriate, as they would with regard to any other state law.”
Yes, that’s obvious. The question is what the Governor thinks of the appropriateness of these violations issued in his name. (Murphy is up for re-election this November, by the way.)
Here is what Newark Police spokesperson Catherine Adams emailed me:
Hello: Per Newark Public Safety Director Brian O’Hara, in accordance with Governor Murphy’s Executive Orders 103, 107 and 195 issued on March 3, 2020, March 16, 2020 and November 12, 2020, respectively, did issue summonses to individuals found in violation of said Executive Orders. These summonses were primarily for large gatherings and businesses operating outside of the Executive Order’s prescribed hours.
But that’s clearly not what happened, per the Newark Police’s own records. A significant number of people were issued summonses for claimed offenses such as “Failure to wear a mask,” which is what a Black man was cited for on April 17, with no prior warning given; or “Being outside for nonessential business,” which is what a Hispanic man was cited for on the same day, also with no prior warning given; or “Sitting in front of his home listening to music,” which is what a White Hispanic man was cited for doing on May 2, again with no prior warning given.
Here are some more of the claimed violations:
A man named Richard Brandt was cited for “walking on n. 6th street not wearing a mask or gloves in violation of exec. order 107” — right near his residence — on April 27.
He had been with his wife, going for a walk. Brandt told me: “We were by ourselves, she had her mask on. I had my mask in my hand.” Then two cops drove by them in a squad car and stopped specifically to give him the ticket. Brandt said of the main officer, “I think he was a newbie. I’m telling him I’m with my wife, I’m not around anybody. It took him a long time to write it up… The new guy was very nervous, he was almost perspiring giving it to me.”
Many of these citations issued over a year ago are still active cases, according to the NJ Courts online portal. Others appear to have been dismissed at the discretion of the municipal judge or prosecutor. Still, even being brought into the system this way can have serious consequences for people, regardless of how their case is ultimately disposed.
An Egyptian man who said he received asylum in the US got a COVID-related summons while working at a business in Newark that requires in-person service — he was under the impression this was permitted as an “essential” activity. But on April 17, police entered the establishment, asked for IDs, and handed out summonses to the employees present.
For over a year, he worried that the summons could jeopardize his legal status in the US. He’d periodically tried to find out whether he was due in court, or what else may have been required to resolve the situation, but was unable to get a definitive answer. “I don’t like to have a problem with government or police here because it’s not good for my case,” he told me. “And not good in general. Like we say in Egypt, I walk close to the wall. I don’t like problems, I don’t like to make a problem with anyone.”
Only after I contacted him did he learn that his case had in fact been dismissed. He was relieved — but that notwithstanding, given the sensitivity of the asylum process, it’s unknown whether the summons remaining on his record could have any future impact.
A man named Yoram Nazarieh said he briefly went to his furniture store in Newark on April 3 — not to open for normal operations, he specified, just to pick up some documents needed to continue conducting basic transactions remotely. But almost immediately, a group of police officers showed up. He told them, “I’m just here after ten days of not being here, I have responsibilities to people who are calling. I’m here just to pick up my paperwork and leave.”
His protestations were futile. He said the officer who gave him the summons “kept insisting that the sergeant is here, and I have to do what the sergeant tells me.” Nazarieh was charged with a disorderly persons offense.
“I think they practically went down the block and gave to everybody,” he said. The police logs bear this out — several other people around the location of his furniture store were also issued summonses for generic Executive Order violations at approximately the same time, on the same day.
“The whole thing was bogus,” Nazarieh told me. “Even the guy said, they just wanted to show force.” His case is still listed as active.
A Rutgers student said he was in Newark on March 28 to help a friend who had been kicked out of his residence. “At that time, to be honest, I don’t even think the lockdown was in full effect.” He had no idea that this would lead to him getting a summons. “The officer’s reasoning was invalid because I gave him a clear answer to why I was out past the deadline,” the student told me. “I told both of the officers this as well and still got the summons.”
He was unaware that his case was still active until I contacted him.
Bob DeGroot, a criminal defense lawyer in the city, shared his opinion on these law enforcement tactics with me. “Newark needs to charge people with this like the Chief needs a set of hemorrhoids,” he said. “Because Newark has real crime.”
Karen Thompson, a Senior Staff Attorney for the ACLU of New Jersey, told me that she has just started to obtain similar records from around New Jersey related to COVID violation enforcement. “It’s a little breathtaking, the scope,” she said. Given the huge number of summonses issued, and the ambiguity around how they are being handled — Newark Municipal Court is still being conducted over Zoom — there’s a risk that these cases get lost in the system, as often happens with municipal summonses. And that can backfire on those charged. “People get these summonses and they don’t know about them, or they’re not informed about them. And suddenly it goes from being a summons to someone having an open warrant for their arrest,” she said.
The kicker of all this is that later on in May, Newark (like countless places in the US) hosted massive protests after the death of George Floyd — all of which flatly violated the COVID policies which had up until that point been so strenuously enforced. And these were state-backed protests; they were endorsed by both Governor Murphy and Mayor Ras Baraka, even though both officials had just spent months hectoring ordinary citizens for failing to “socially distance” or for gathering in small crowds outside. Baraka himself was a participant in a protest that violated his own Executive Order — the same order that had been cited by police to charge Newark residents:
Baraka even admitted as much to me at the time: “This is a violation, but we’re doing it anyway,” he said of the protest in Newark last May. (And elected officials wonder why people got fed up with the manifestly arbitrary nature of these enforcement measures.)
The discretionary powers granted to state authorities to curtail the spread of the virus have yet to be fully documented or interrogated. Did these tactics accomplish anything that benefitted public health? Particularly with a year and a half of hindsight, it’s doubtful. Unless “needlessly hassling a bunch of people” somehow counts as a public health triumph.
Reposted from the author’s blog