In March 2020, New Jersey launched its initial response to the COVID-19 pandemic by issuing policies aimed at limiting the spread of the deadly virus. Governor Phil Murphy’s Executive Order 103 and subsequent executive orders calling for residents to stay at home and socially distance allowed municipalities to make their own determinations as to enforcement. Those policies, created and imposed with vague boundaries, also implicated civil rights and liberties at every level of government. Given the unprecedented urgency of the moment, few voices questioned police practices or government attempts to use police to enforce social distancing.
Deeply concerned about reports of variable enforcement of stay-at-home orders – and the actions taken by government actors in support of those orders – the ACLU of New Jersey set out to examine the enforcement of executive orders by police during the first year of the COVID-19 lockdown.
Based on our analysis of police arrest reports obtained through Open Public Records Act (OPRA) requests, we found:
- Clear racial disparities between Black and white communities in the number of police stops for executive order enforcement.
- Clear racial disparities in the number of arrests and searches of Black New Jerseyans following police stops for executive order enforcement.
The criminalization of non-compliance of stay-at-home orders in the face of threats to public health is not a new phenomenon. COVID-19, however, has raised questions about the significant latitude granted to authorities and law enforcement and whether that latitude should face greater scrutiny. Our findings show general racial disparities in enforcement, but that some jurisdictions tempered the severity of enforcement through simple reminders of respect for community welfare.
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1. Racial Disparities in COVID Policing
A.Racial Disparities in COVID Policing
Of all stops where race was recorded, Black New Jerseyans comprised 50 percent of all individual stops, and 65 percent of individual stops where the race-ethnicity of the person was known (see slide 11 here).
Black New Jerseyans were over-represented in stops for executive order enforcement at a rate four times higher than their relative population. In comparison, white residents were under-represented in the same type of stop by 0.27 percent (see slide 4 here).
Black people were stopped at disproportionately higher rates than white people in every county where stops were recorded (see slide 15 here). In municipalities where Black people comprise less than 12 percent of the population, no stops were recorded at all (see slide 16 here).
Putting aside data from Newark (see slide 20 here), available state-wide race information on summons and arrests show Black and brown individuals singled out disproportionately (see slide 15 here). While Black people comprise 13.5 percent of the total state population, they represented 81 percent of all COVID enforcement actions for which we have racial data. 16 percent of all COVID-related actions were taken against white people, despite comprising 57 percent of the total population. The figures for Latinx individuals were not as incongruent: 15 percent of COVID-related actions as compared to their 18 percent representation in the general population (see slide 11 here).
In Newark, the racial distribution of charges and summons roughly follows trends in the general population: 50 percent of the population of Newark is Black and 58 percent of all COVID-related charges were brought against Black individuals (see slide 16 here). But the reality in other New Jersey communities looks radically different. For example, in Elizabeth, the fourth largest city in New Jersey, Black people comprise less than 20 percent of the population, and yet of the 28 incidents for which racial data is available, 26 involved Black individuals, or 92 percent of all police actions (see slide 21 here). In Trenton, where only 30 percent of the population is Black, every police record where race information was provided involved a Black person.
2. Criminalization in COVID Policing
A.Criminalization in COVID Policing
The data shows that increased criminalization is also associated with police stops for executive order enforcement:
Approximately 70 percent of recorded stops included some sort of punitive action – ranging from a summons to incarceration – while just over 26 percent of the stops resulted in no action being taken at all (see slide 4 here).
Police stops of white residents were eight times more likely to have no punitive action taken compared to Black residents and 10 times more likely compared to Latinx residents (see slide 6 here). Asian residents were over 12 times more likely to have no punitive action taken compared to Black and Latinx residents.
More than 50 individuals were additionally charged with terroristic threats (N.J.S. 2C:12-3) punishable by 3-5 years in prison and fines up to $15,000. Those charges were often combined with charges of assault on an officer (N.J.S 2C:12-1b (5)) which carries similar penalties. Other data showed municipalities adding charges for violations of Executive Order 103 on top of whatever alleged violation brought police to the scene.
Project data suggests that more than 50 people were charged with making terroristic threats, with 40 percent of the charges concentrated in Hudson (6), Monmouth (5), Ocean (5), and Hunterdon (4) counties. In most of those cases, the terroristic threat charge was accompanied by at least one additional charge, often for a more serious offense.
3. Executive Order Enforcement as Pretext
A.Executive Order Enforcement as Pretext
What were individuals doing when they were arrested or given a summons for violating COVID-restrictions? While the detailed data from Newark gives a sense of the breadth of these practices, the data suggests that in jurisdictions where police were active in enforcing COVID restrictions, they targeted just about anyone they chose to.
As indicated in the data set, charged individuals were variously described as “gathering,” “hanging out,” “congregating,” “being outside,” “sitting,” “loitering at a bus stop,” “playing basketball,” “walking,” “driving in a car,” “walking along a street without purpose,” and “drinking in public” (see slide 8 here). By contrast, despite three separate citations, individuals found playing golf – much more clearly violating the executive order as opposed to “driving in a car,” were not even issued summonses.
Twelve percent of all summonses were issued to individuals who were poor or fiscally vulnerable people. Described in police reports as panhandling, “asking for money,” or begging, more than half of incidents involved Black residents. Point Pleasant Beach police called in to shut off power to four tenants who were late with their payments also used the occasion to issue COVID violations (see slide 9 here).
4. Restrained COVID Policing
A.Restrained COVID Policing
Not all jurisdictions took an aggressive approach to enforcing the executive order. Four jurisdictions in particular were outliers in their notable restraint and for the detail with which their stops and interactions were reported: Lyndhurst, Woodbridge, Hillside, and North Brunswick.
All four towns provided thorough incident reports documenting COVID-related police responses during the period March to December 2020, but virtually no one was charged with an offense. While the circumstances of the incidents in these four towns closely paralleled incidents that formed the basis of the charges described previously, instead of issuing summonses or charging people with crimes, police in Lyndhurst, North Brunswick, and Hillside tended to inform individuals about the dangers of COVID, asked them to respect the mask and social distancing mandates, and proffered assistance when faced with the occasional COVID-related medical emergency. These interactions, as well as their reporting, were exemplary.
While unsurprising, the results of our report are dismaying. They reflect the racial realities of New Jersey, from the worst racial disparities in prisons in the United States, to some of the most stark racial disparities in health outcomes in the country, and more than a dozen other metrics, from homelessness to veterans' care. COVID merely pulled off the blinders around these well-familiar inequities, laying bare the impact of these disparities on communities of color who experienced higher rates of infection and death as a result.
The report makes clear that choices about policing, particularly when policing is in unchartered waters, can make all the difference. Not all jurisdictions took a “throw everything at them” approach to COVID-19 executive order enforcement; indeed, two jurisdictions demonstrated notable restraint: Lyndhurst and North Brunswick. Both towns provided detailed incident reports documenting COVID-related police response calls over the period March to December 2020, but virtually no summons were issued. The circumstances of the incidents closely paralleled those described above, i.e., police were called in to parks where people were running, playing baseball, basketball or were otherwise not socially distant; they were called to stores where individuals were not masked; they were called to gatherings of all sorts. However, instead of levying charges or issuing summonses, police in Lyndhurst (population 22,580, 83 percent white) and North Brunswick (population 41,848 with a diverse population of roughly 39 percent white, 18 percent Hispanic, 16 percent Black, and 24 percent Asian) advised the citizens of their towns about the dangers of COVID and asked them to respect the mask and social distancing mandates.
While New Jersey’s government actions to combat COVID-19 demonstrated what could be achieved in many pivotal ways during an unprecedented public health emergency, this report clearly shows that other emergencies, including racial discrimination in policing, are far from addressed, but are in fact deepened in times of duress. Racial discrimination does not take breaks, even within the throes of a global pandemic. Our hope is that awareness may serve as a guide to change and provide instruction for improvement.
This report was made possible through a grant from the Pratt Bequest Fund.
This report was written by ACLU-NJ senior staff attorney Karen Thompson with support from ACLU-NJ board member Alexis Karteron. The authors would like to thank the many legal fellows and interns whose efforts and contributions to data collection, research and management made this report possible: Ruth-Claire Pollioni, Pam Quanrud, Derrick Neves, Malley Chertkov, Cristina de Arana, Anaiis Gonzales, and Susmitha Sayana.
Graphics and data analysis creation and assistance were generously provided by Ranya Ahmed, Eric Lee, and Alexander Yurcaba of the ACLU national’s Data Analytics Team.
The authors also thank the ACLU-NJ staff who contributed their time and skills to this report: Jeanne LoCicero, Maia Raposo, Paloma Aguas, Kate Oh, and Alicia Rogers.