Human Rights Watchdog Investigates Landlords, Teachers, and Dentists — But Not Cops or Prison Guards

The state Division of Human Rights considers prisons, jails, and police departments exempt from human rights law.

Nathan Porceng   ·   August 10, 2023
A picture of Emily Gallagher in floor debate
Assemblymember Emily Gallagher, who sponsors a bill to apply New York human rights law to police and correctional facilities, on the floor of the State Assembly | New York State Assembly
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Next month will mark six years since police officers in Watertown — a small city an hour’s drive north of Syracuse — arrived at DeAnna LeTray’s apartment, following a domestic incident with her daughter’s boyfriend. The officers arrested LeTray, a transgender woman, and mercilessly taunted her about her clothing, hair, and gender identity, she claims. They took her back to their station, then transferred her to the Jefferson County Jail. During the less than 24 hours she spent in custody, she alleges law enforcement officers verbally abused her, ripped out her hair, stripped her naked to inspect her genitals, and subjected her to an invasive and unnecessary body cavity search — a cover, she says, for sexual assault.

In 2018, LeTray filed a complaint with the state Division of Human Rights, the agency charged with enforcing the state’s Human Rights Law. The agency quickly responded — to dismiss her case “for lack of jurisdiction.”

She couldn’t believe what she was hearing: New York’s primary human rights body investigates unlawful discrimination in public housing and private dentists’ offices, schools and the workplace, hotels and restaurants — but not in prisons, jails, or police departments.

Picture of DeAnna LeTray
DeAnna LeTray | Courtesy of NYCLU

An appellate court later upheld the agency’s decision. In response, a group of New York legislators have introduced a bill that would explicitly apply state human rights law to the criminal justice system. The bill’s supporters say it would close a paradoxical hole in human rights protections, provide badly needed relief to the victims of discrimination, and provide a much needed source of independent oversight of police and correctional facilities.

“Given the ongoing humanitarian crisis on Rikers Island and a nationwide assault on trans rights, it does not make any sense to exempt jails or police from the jurisdiction of our civil rights laws,” said Assemblymember Emily Gallagher, one of the bill’s sponsors.

Enacted in 1945, New York’s Human Rights Law guarantees every citizen “equal opportunity to enjoy a full and productive life.” The law prohibits discrimination in housing, employment, education, credit, and places of public accommodation. It offers stronger protections than other federal and state provisions and provides its own complaint process as an alternative to the court system.

DHR staff assist complainants through the agency’s investigatory and hearing processes — which it aims to conclude within 16 months — free of charge, and without the need to find an outside lawyer to represent them. If the agency finds discrimination, it can issue orders to the offender and award monetary relief to the victim. It receives almost 5,000 complaints of discrimination each year.

John Paraskevopoulos, Gallagher’s legislative director, emphasized that he believes the agency is already required to investigate human rights complaints in the criminal justice system, and that the bill would just clarify that responsibility.

The DHR itself has strenuously argued to the contrary. When LeTray sued to overturn the dismissal of her complaint, the agency’s attorneys argued that police and correctional facilities are not “open to the public” and therefore don’t fall under the umbrella of “public accommodations” protected under human rights law.

An appellate court agreed, ruling that public accommodations offer services to the general public, whereas “arrest and detention is imposed upon a person by law enforcement and the criminal courts, not provided to those arrested and detained as a service for their benefit.”

It wasn’t the first such ruling. In 2008, Phoenix House — a private entity operating a substance abuse program administered by the state prison agency — refused to allow Muslim residents to attend services at a local mosque, even though they permitted residents of other faiths to attend religious services. A state appellate court ruled that Phoenix House did not provide public accommodations subject to the New York City Human Rights Law, which mirrors the state statute. In 2015, a transgender woman sought review of a decision by Clinton Correctional Facility officials that denied her request to be placed in a unit for transgender inmates. The Supreme Court of Albany County ruled that prisons are not places of public accommodation.

JP Perry, a civil rights attorney with the New York Civil Liberties Union, helped represent LeTray. She remains baffled by the rulings.

“It didn’t make any sense to us,” Perry told New York Focus. “People have so much interaction with police and with jails across the state, and there’s no reason that these entities that are providing quintessential public services should just be blanketly exempted from human rights protections.”

Manny Kottaram, a DHR spokesperson, declined to comment on LeTray’s complaint and referred New York Focus to the court decisions. Other states have split on whether law enforcement facilities provide public accommodations subject to anti-discrimination laws. Courts in New Jersey and Vermont have ruled that they do, while courts in Missouri, Pennsylvania, Connecticut, and West Virginia have ruled that they do not. The Oregon Supreme Court ruled that a private contractor providing healthcare services at a county jail counts, even if jails themselves do not.

New York’s highest court declined to hear LeTray’s appeal and has yet to rule on the issue. Gallagher’s bill would settle the law once and for all.

Sumeet Sharma, director of the Correctional Association of New York, the state’s legally designated prison monitor, said that the bill would bring real change to New York prisons and jails, allowing incarcerated people to bring anti-discrimination complaints that may otherwise escape the notice of watchdog groups and agencies.

Marc Fliedner, a lawyer with Disability Rights New York, said that the bill would broaden access to justice for his clients, particularly those in smaller police precincts and jails where government and nonprofit civil rights entities have less reach. And it could provide a critical alternative to lawsuits, he added.

“We can’t be everywhere at once,” Fliedner said. “What we can do if this bill becomes law is guide folks to the filing of a human rights complaint, or if resources permit, represent them on the complaint. Less time-consuming, less onerous for all parties, and a means to have their individual concerns and needs addressed.”

But while it’s less time-intensive than the courts, the human rights complaint process doesn’t run itself. The DHR employs 162 people — including investigators, attorneys, administrative law judges, and support staff — in 12 regional offices across New York. That may not be enough staff to handle a deluge of cases if the bill passes.

“You have to hope that the state would recognize the need to properly support the additional work and the additional staffing that would be required to realize the bill’s true objectives,” said Fliedner. “As with any new avenue for legal advocacy, adequate funding would be an imperative.”

In 2021, Gallagher introduced a similar bill applying the Human Rights Law to police and correctional facilities. It never made it out of committee.

New York’s powerful police and corrections unions tend to strongly oppose even modest reforms and have waged years-long campaigns to curtail the funding and authority of municipal oversight agencies. By and large, they’ve succeeded. State Senator Julia Salazar, who chairs the chamber’s corrections committee, predicted that law enforcement unions will come out strongly against Gallagher’s bill.

The New York State Correctional Officers and Police Benevolent Association, New York City Police Benevolent Association, Buffalo Police Benevolent Association, and New York City Correction Officers’ Benevolent Association did not respond to New York Focus’s requests for comment.

The bill will remain stalled at least until the legislature reconvenes next year. LeTray, on the other hand, will return to court.

In 2021 — after New York’s high court denied LeTray’s DHR appeal — she filed a new lawsuit in federal court. LeTray alleged that the Watertown Police Department and Jefferson County Sheriff’s office violated her rights under the Fourth and Fourteenth Amendments, the New York state Civil Rights Law, and the New York state Constitution. The case is set to go to trial early next year.

Nathan Porceng is a writer and journalist. His work has appeared in Balls & Strikes, The Daily Beast, and more. Nathan grew up in Central New York, and spent five years as a submarine officer in the United States Navy.
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