NYPD Photo Policy Violates Religious Rights, Class Action Says

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Two Muslim women say the NYPD is violating arrestees’ civil rights by requiring them to remove religious head coverings while taking their booking photograph.

Plaintiffs Jamilla Clark and Arwa Aziz are challenging a New York Police Department policy that requires women arrestees to remove any religious head coverings while their booking photograph is being taken.

The two women claim this policy violates their constitutional right to free exercise of religion, as well as state and federal statutes.

Clark was arrested in January 2017 for violating a protective order filed by her ex-husband, a protective order she says was bogus. She claims NYPD officers forced her to be photographed with her head covering pushed down to her shoulders.

Officers threatened to prosecute her if she did not remove the hijab, she says. Clark wept and begged to put the hijab back on, but she says the officer taking the photograph ignored her while another officer openly mocked her Muslim faith.

Aziz says she received similar treatment eight months later, forced to remove her hijab while being photographed in front of about a dozen male NYPD officers and over 30 male inmates. She says officers spent almost five minutes taking multiple photographs of her uncovered head from different angles.

Both women were told – falsely, according to the class action lawsuit – that they were legally required to remove their head coverings while being photographed. Actual NYPD policy allows arrestees to be photographed bareheaded in private by a photographer of their same sex, the plaintiffs say, though they may have to be transported to a separate photographing facility.

Notwithstanding the procedures used to take the photographs, the plaintiffs note that the resulting photographs become part of a permanent print and electronic record, allowing any number of persons unknown to the arrestees to see images of them with their heads uncovered.

The plaintiffs note the NYPD policy is inconsistent with those of the U.S. State Department and Citizenship and Immigration Services, both of which allow religious head coverings to be worn in photographs as long as they do not obscure the photographed person’s face. The New York State Department of Motor Vehicles Regulations also allows religious head coverings in driver’s license photos, plaintiffs say.

The head covering, or hijab, is a requirement of Clark and Aziz’s Muslim faith, according to the NYPD class action lawsuit. Women are required to keep their heads covered while they are in the presence of men who are not members of their immediate family, or mahram. The plaintiffs say the hijab covers their hair, neck, and sometimes part of the chest, but it leaves the entire face visible.

“Being forced to remove one’s hijab in public, particularly in the presence of men who do not belong to the wearer’s mahram, is a profound defilement of the wearer’s sincerely-held religious beliefs and a violation of her religious practice,” the NYPD class action reads. “Requiring a Muslim woman to remove her hijab in public is akin to demanding that a secular person strip naked in front of strangers.”

Clark and Aziz are joined in this civil rights class action lawsuit by plaintiff Turning Point, a Queens County-based nonprofit that supports Muslim women and girls affected by domestic violence.

The plaintiffs seek to represent a Class including all persons arrested by the NYPD, required to take a post-arrest booking photograph while in any NYPD facility, and were forced to remove any religious head covering for that booking photograph.

They seek a court injunction barring the NYPD from forcing the removal of religious head coverings for post-arrest photographs, and requiring the department to institute a new, non-discriminatory policy. They are asking the court to award punitive damages, court costs and attorney’s fees.

The plaintiffs are represented by attorneys O. Andrew F. Wilson and Emma L. Freeman of Emery Celli Brinckerhoff & Abady LLP and by Albert F. Cahn of Council on American-Islamic Relations New York.

The NYPD Religious Head Covering Removal Class Action Lawsuit is Clark, et al. v. City of New York, Case No. 1:18-cv-02334, in the U.S. District Court for the Southern District of New York.