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Lawsuit defends religious freedom for those in custody

Poster by Shepard Fairey / ObeyGiant.com via Amplifier Foundation and PBS

Religious freedom is so important, it is protected by the 1st Amendment of the U.S. Constitution. However, a recent lawsuit demonstrates how law enforcement can legally breach that freedom.Buffalo often looks to New York City for trends that may be heading our way. So when New York's Police Department changed a policy to settle a discrimination lawsuit, WBFO asked Peter Kehoe, an attorney and executive director of theNew York State Sheriffs' Association, how that change may impact our local police.

"Generally, each police agency -- or in the case of jails, each jail agency -- sets their own policies and procedures," he said.

New York City Police recently changed its booking policy to settle a lawsuit brought by two Muslim women who felt violated when officers forced them to remove their hijabs -- headscarves that represent modesty and privacy -- before their mugshots were taken. The department now allows various forms of religious headwear, for women and men, as long as their face remains clearly visible.

The free exercise of religion is a federally protected right, but Kehoe said there is no federal- or state-mandated police policy standardizing it.

"We start out with the assumption that people are allowed to do whatever they reasonably want to do, except he can't do this because it will have a negative impact upon safety," he said. "It's a balancing act. Was it such a serious security concern that it justifies violating the religious rights of the individual?"

Kehoe said the state Department of Corrections sets model policies in New York, but local departments are not bound by them unless legislated. In fact, policies vary nationwide, depending on how facilities calculate the risk of, say, hiding contraband under a skullcap or turban, or being pulled into a confrontation by a long beard or dreadlock.

The state Chiefs of Police Association told WBFO it does not take a position on the issue, and of the several local police departments contacted for their policy, only the Erie County Sheriff's Office responded. A statement from Spokesperson Scott Zylka said female inmates are searched by a female deputy in a private location, with no male deputies present, then allowed to wear the hajib for the rest of the intake process.

Credit Martin Gugino / YouTube
Justice for Migrant Families WNY founder and Executive Director Jennifer Connor (l) holds a megaphone, from which a detainee can be heard describing conditions inside the federal Detention Center to a group of protesters in January.

Jennifer Connor works with detainees at the federal Detention Center in Batavia as the founder and executive director of Justice for Migrant Families WNY. She said the official policy of Immigration and Customs Enforcement is that people are entitled to their religious headwear and properties.

"Their official policy would cover, like beards and other kinds of religious requirements. It covers dietary requirements, visits from religious representatives, religious headwear access to religious resources," she said. "I cannot say that is enforced across the board."

Connor said she never saw someone there wearing religious headwear, eventhough visits from religious leaders were "very important" to detainees before COVID struck and all visitors were limited to prevent the spread of the virus. Early in the pandemic, Batavia had more detainees with COVID than any other detention center in the country.

"Most people in immigrant detention very much feel like their rights have been violated just on a human level. People in immigrant detention are faced with so many obstacles, just with getting like, decent food and basic hygiene or health products, and like access to legal counsel," Connor said. "I know that people's mental health has really suffered since COVID hit, as they feel like they're pretty much trapped and left to die."

Like police policies, she sees the arbitrariness of the detention system.

"We have this massive bureaucratic, arbitrary system that periodically is like, 'Let's just deport some people.' They generally deport people who are more vulnerable, easier to do it, they have a flight," she said. "Periodically, a bunch of people that we've been talking to will just disappear."

Connor is leading a renewed effort to get detainees released, end transfers between facilities and end what she called the "inhumane treatment" at the center, which is facing another new lawsuit. Some being held are on a hunger strike in protest.

She expects another fight to make sure detainees, jail and prison inmates get the supply of COVID vaccine they need.