The NYPD will allow suspects to keep their religious headgear on when having their mug shots taken as part of a settlement announced on Monday.
The policy change will now allow headgear, including yarmulkes, hijabs, and sheitels (wigs for Jewish women), to be worn when a photo is taken. Religious coverings that obscure a person's face, namely a niqāb, will still be prohibited during the mug shot process.
Two Muslim women filed a lawsuit against the Police Department in 2018 after they were both forced to take off their hijabs when having their mug shots taken. The NY Times reports the women -- Jamilla Clark and Arwa Aziz -- had been arrested for separate low-level offenses. When it came time for Clark to have her photo taken, she recalled "feeling naked" since observant Muslim women wear a head covering when in the presence of men who are not their husbands. Aziz had her hijab forcefully removed by officers, according to the Times.
An advocacy group and two other women had joined the lawsuit saying such a practice by the NYPD was a violation of defendants' First Amendment religious rights. Albert Fox Cahn, an attorney who joined the law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP in representing Clark and Aziz, told Gothamist that if religious head coverings can be worn when taking a photo for a driver's license or passport, they can be kept on for a mug shot.
"There's no legitimate reason to force New Yorkers to take off these head coverings for a mug shot," said Cahn, who doubles as the executive director of the Surveillance Technology Oversight Project. The group, falling under the Urban Justice Center, seeks to preserve privacy rights from government surveillance.
Cahn joined the lawsuit in part to stymie the NYPD's alleged attempt at building its facial recognition database that identifies anyone who's gone through the criminal justice system. By allowing religious headgear to be worn, it limits the NYPD from placing that photo in its database, Cahn said.
"Our concern all along has been that facial recognition is a driving force for this policy," Cahn said. "And mug shots are the leading source of data for the NYPD facial recognition program," Cahn said. "And while a human being can look at a mug shot without any issue -- if there's a hijab, or a yarmulke or a turban -- a head covering, which covers the ears, can throw off some facial recognition systems, including the algorithms used by the NYPD."
Bronx Defenders, a pro bono attorney service, has sued the NYPD over its use of mug shots to build its facial recognition database, in violation of a 1976 law that keeps mug shots sealed. Facial recognition software was recently used to identify Derrick Ingram, a Black Lives Matter protester who quickly found himself besieged by dozens of NYPD officers. A report by the Times in August 2019 says that the NYPD has mug shots of children as young as 11 years old.
While it did not provide comment on the litigation, the NYPD did share a statement by Patricia Miller, chief of the Special Federal Litigation Division of the city Law Department, who called the new policy "good reform."
“It carefully balances the department’s respect for firmly held religious beliefs with the legitimate law enforcement need to take arrest photos, and should set an example for other police departments in the country,” Miller said in a statement.
The policy takes effect 60 days after New York lifts its coronavirus state of emergency order.
