Οn
April 17 in Toledo, Ohio, a 19-year-old black man was arrested for
violating the state stay-at-home order. In court filings, police say he
took a bus from Detroit to Toledo “without a valid reason.” Six young
black men were arrested in Toledo last Saturday while hanging out on a
front lawn; police allege they were “seen standing within 6 feet of each
other.” In Cincinnati, a black man was charged with violating
stay-at-home orders after he was shot in the ankle on April 7; according
to a police affidavit, he was talking to a friend in the street when he
was shot and was “clearly not engaged in essential activities.”
Ohio’s health director, Dr. Amy Acton, issued the state’s stay-at-home order on
March 22, prohibiting people from leaving their home except for
essential activities and requiring them to maintain social distancing
“at all times.” A violation of the order is a misdemeanor, punishable by
up to 90 days in jail and a $750 fine. Since the order, hundreds of
people have been charged with violations across Ohio.
The
state has also seen some of the most prominent protests against state
stay-at-home orders, as large crowds gather on the statehouse steps to
flout the directives. But the protesters, most of them white, have not
faced arrest. Rather, in three large Ohio jurisdictions ProPublica
examined, charges of violating the order appear to have fallen
disproportionately on black people.
ProPublica
analyzed court records for the city of Toledo and for the counties that
include Columbus and Cincinnati, three of the most populous
jurisdictions in Ohio. In all of them, ProPublica found, black people
were at least four times as likely to be charged with violating the
stay-at-home order as white people.
As
states across the country attempt to curb the spread of COVID-19,
stay-at-home orders have proven instrumental in the fight against the
novel coronavirus; experts credit aggressive restrictions with
flattening the curve in the nation’s hotbeds. Many states’ orders carry
criminal penalties for violations of the stay-at-home mandates. But as
the weather warms up and people spend more time outside, defense lawyers
and criminal justice reform advocates fear that black communities long
subjected to overly aggressive policing will face similarly aggressive
enforcement of stay-at-home mandates.
In Ohio, ProPublica found, the disparities are already pronounced.
As
of Thursday night in Hamilton County, which is 27% black and home to
Cincinnati, there were 107 charges for violating the order; 61% of
defendants are black. The majority of arrests came from towns
surrounding Cincinnati, which is 43% black. Of the 29 people charged by
the city’s Police Department, 79% were black, according to data provided
to ProPublica by the Hamilton County Public Defender.
In Toledo, where black people make up 27% of the population, 18 of the 23 people charged thus far were black.
Lt.
Kellie Lenhardt, a spokeswoman for the Toledo Police Department, said
that in enforcing the stay-at-home order, the department’s goal is not
to arrest people and that officers are primarily responding to calls
from people complaining about violations of the order. She told
ProPublica that if the police arrested someone, the officers believed
they had probable cause, and that while biased policing would be
“wrong,” it would also be wrong to arrest more white people simply “to
balance the numbers.”
In
Franklin County, which is 23.5% black, 129 people were arrested between
the beginning of the stay-at-home order and May 4; 57% of the people
arrested were black.
In
Cleveland, which is 50% black and is the state’s second-largest city,
the Municipal Court’s public records do not include race data. The court
and the Cleveland Police Department were unable to readily provide
demographic information about arrests to ProPublica, though on Friday,
the police said they have issued eight charges so far.
In
the three jurisdictions, about half of those charged with violating the
order were also charged with other offenses, such as drug possession
and disorderly conduct. The rest were charged only with violating the
order; among that group, the percentage of defendants who were black was
even higher.
Franklin
Country is home to Columbus, where enforcement of the stay-at-home
order has made national headlines for a very different reason. Columbus
is the state capital and Ohio’s largest city with a population of almost
900,000. In recent weeks, groups of mostly white protesters have
campaigned against the stay-at-home order on the Statehouse steps and
outside the health director’s home. Some protesters have come armed, and
images have circulated of crowds of demonstrators huddled close,
chanting, many without masks.
No
protesters have been arrested for violating the stay-at-home order, a
spokesperson for the Columbus mayor’s office told ProPublica. Thomas
Hach, an organizer of a group called Free Ohio Now, said in an email
that he was not aware of any arrests associated with protests in the
entire state. The Columbus Division of Police did not respond to
ProPublica’s request for comment.
Ohio
legislators are contemplating reducing the criminal penalties for
violating the order. On Wednesday, the state House passed legislation
that would eliminate the possibility of jail time for stay-at-home
violators. A first offense would result in a warning, and further
violations would result in a small fine. The bill is pending in the
state Senate.
Penalties
for violating stay-at-home orders vary across the country. In many
states, including California, Florida, Michigan and Washington,
violations can land someone behind bars. In New York state, violations
can only result in fines. In Baltimore, police told local
media they had only charged two people with violations; police have
reportedly relied on a recording played over the loudspeakers of squad
cars: “Even if you aren’t showing symptoms, you could still have
coronavirus and accidentally spread it to a relative or neighbor. Being
home is being safe. We are all in this together.”
Enforcement has often resulted in controversy. In New York City, a viral video showed police pull out a Taser and punch a black man after they approached a group of people who weren’t wearing masks. Police say the man who was punched took a “fighting stance” when ordered to disperse. In Orlando, police arrested a
homeless man walking a bicycle because he was not obeying curfew. In
Hawaii, charges against a man accused of stealing a car battery,
normally a misdemeanor punishable by up to 30 days in jail, were enhanced to a felony, which can result in 10 years in prison, because police and prosecutors said he was in violation of the state order.
The
orders are generally broad, and decisions about which violations to
treat as acceptable and which ones to penalize have largely been left to
local police departments’ discretion.
Kristen
Clarke, president of the Lawyers’ Committee for Civil Rights Under Law,
a legal organization focused on racial justice, said such discretion
has opened the door to police abuse, and she said the U.S. Department of
Justice or state governments should issue detailed guidelines about
when to make arrests. That discretion “is what’s given rise to these
rogue practices,” she told ProPublica, “that are putting black
communities and communities of color with a target on their backs.”
In jails and prisons around
the country, inmates have fallen ill or died from COVID-19 as the virus
spreads rapidly through the facilities. Many local governments have
released some inmates from jail and ordered police to reduce arrests for
minor crimes. But in Hamilton County, some people charged with failing
to maintain social distancing have been kept in jail for at least one
night, even without any other charges. Recently, two sheriff’s deputies
who work in the jail tested positive
for COVID-19. “The cops put their hands on them, they cram them in the
car, they take them to the [jail], which has 800 to 1400 people,
depending on the night,” said Sean Vicente, director of the Hamilton
County Public Defender’s misdemeanor division. “It’s often so crowded
everyone’s just sitting on the floor.”
Clarke
said the enforcement push is sometimes undercutting the public health
effort: “Protecting people’s health is in direct conflict with putting
people in overcrowded jails and prisons that have been hotbeds for the
virus.”
Court records show that the Cincinnati Police Department has adopted some surprising applications of the law.
Six
people were charged with violations of the order after they were shot.
Only one was charged with another crime as well, but police affidavits
state that when they were shot, they were or likely were in violation of
the order. One man was shot in the ankle while talking to a friend,
according to court filings, and “was clearly not engaged in essential
activities.” Another was arrested with the same explanation; police
wrote that he had gone to the hospital with a gunshot wound. The
Cincinnati Police Department did not respond to ProPublica’s requests
for comment.
In
Springfield Township, a small, mostly white Cincinnati suburb, nine
people have been arrested for violating the order thus far. All of them
are black.
Springfield
Township Police Chief Robert Browder told ProPublica in an email that
the department is “an internationally accredited law enforcement
organization” and has “strict policies … to ensure that our zero
tolerance policy prohibiting bias-based profiling is adhered to.”
Browder
said race had not played a role in his department’s enforcement of the
order and that he was “appalled if that is the insinuation.”
Several
of the black people arrested in Springfield Township were working for a
company that sells books and magazine subscriptions door to door. One
of the workers, Carl Brown, 50, said he and five colleagues were working
in Springfield Township when two members of the team were arrested
while going door to door. Police called the other sales people, and when
they arrived at the scene, they too were arrested. Five of them,
including Brown, were charged only with violating the stay-at-home
order; the sixth sales person had an arrest warrant in another state,
according to Browder, and police also charged her for giving them false
identification.
Brown
said one of the officers had left the group with a warning: They should
never come back, and if they do, it’s “going to be worse.”
Browder
denied that the officers made such a threat, and he said the police had
received calls from residents about the sales people and their tactics
and that the sales people had failed to register with the Police
Department, as required for door-to-door solicitation.
Other
violations in Hamilton County have been more egregious, but even in
some of those cases, the law enforcement response has stirred
controversy. On April 4, a man who had streamed a party on Facebook
Live, saying, “We don’t give a fuck about this coronavirus,” was
arrested in Cincinnati’s Over-the-Rhine neighborhood, the setting of a
2001 riot after police fatally shot an unarmed black man.
The
man who streamed the party, Rashaan Davis, was charged with violating
the stay-at-home order and inciting violence, and his bond was set at
$350,000.
After Judge Alan Triggs said he would release Davis from jail pretrial because the offense charged was nonviolent, local media reported, prosecutors dropped the misdemeanor and said they would focus on the charge of inciting violence, a felony.
The Hamilton County prosecutor’s office declined to comment on Davis’ case.
In
Toledo, there’s been public controversy around perceived differences in
the application of the law. On April 21, debate at the Toledo City
Council meeting centered
around a food truck. Local politicians discussed recent arrests of
young black people at house parties, some contrasting them with a large,
white crowd standing close together in line outside a BBQ stand,
undisturbed by police. Councilmember Gary Johnson told ProPublica he’s
asked the police chief to investigate why no one was arrested at a party
he’d heard about, where white people were congregating on docks. “I
don’t know the circumstances of the arrests,” he said. But “if you feel
you need to go into poor neighborhoods and African American
neighborhoods, you better be going into white neighborhoods too. … You
have to say we’re going to be heavy-handed with the stay-at-home order
or we’re going to be light with it. It has to be one or the other.”
Toledo
police enforcement has not been confined to partygoers. Armani Thomas,
20, is one of the six young men arrested for not social distancing on a
lawn. He told ProPublica he was sitting there with nine friends “doing
nothing” when the police pulled up. Two kids ran off, and the police
made the rest stay, eventually arresting “all the dudes” and letting the
girls go. He was taken to the county jail, where several inmates have
tested positive, for booking and released after several hours. The men’s
cases are pending.
“When
police see black people gathered in public, I think there’s this
looming belief that they must be doing something illegal,” RaShya Ghee, a
criminal defense attorney and lecturer at the University of Toledo,
told ProPublica. “They’re hanging out in a yard — something illegal must
have happened. Or, something illegal is about to happen.”
Lenhardt,
the police lieutenant, said the six men were arrested after police
received 911 calls reporting “a group gathering and flashing guns.” None
of the six men were arrested on gun charges. As for the 19-year-old
charged for taking the bus without reason, she said police asked him on
consecutive days to not loiter at a bus station.
With
more than 70,000 Americans dead from the coronavirus, government
officials have not figured out how to balance the threat of COVID-19
with the harms of over policing, Clarke said. “On the one hand, we want
to beat back the pandemic. That’s critical. That’s the end goal,” she
told ProPublica. “On the other hand, we’re seeing social distancing
being used as a pretext to arrest the very communities that have been
hit hardest by the virus.”