When Yonkers, New York, police demanded Ihsan Malkawi remove her hijab for her booking photograph, the 42-year-old Muslim woman became distraught.
She tried through tears to explain to the officers that she wore her hijab for religious reasons and it was not a fashion accessory. She explained to them that she does not take it off for photographs or be seen without it by any male members that aren’t her family.
The officers didn’t budge. They told Malkawi that the law required her to remove her hijab and be photographed without it. That’s not true, according to Malkawi’s attorneys. But at the time, Malkawi didn’t feel as if she had a choice. She took her hijab off only to have it taken away for photos, a night in jail and a court appearance.
“I just wanted them to respect my rights, but I felt like they didn’t care,” Malkawi told HuffPost. “From the first minute, I felt discriminated against.”
On Wednesday, Malkawi and her attorneys filed a civil rights suit against Yonkers, arguing that the Yonkers Police Department violated her religious rights and that the department’s removal policy –– an obscure protocol that forces arrestees to remove religious head coverings while in custody –– violates the Constitution and should be abolished.
“It is unacceptable that the City of Yonkers would cling to a policy that degrades and humiliates Muslim women, and others, by forcing them to remove their head covering against their sincerely held religious beliefs. This policy is illegal,” said Ahmed Mohamed, litigation director at the Council on American-Islamic Relations - New York, which is representing Malkawi along with the law firm Emery Celli Brinckerhoff & Abady.
The City of Yonkers declined to comment.
The lawsuit is one of several across the country and at least the third in New York state over police forcing Muslim women to remove their hijabs, which are often donned by observant Muslim women and cover their hair and neck. Like Sikh turbans or Jewish yarmulkes, such religious headwear does not obscure the face and is accepted in other legal documents, such as a U.S. passport and driver’s license. But Muslim women in multiple states have reported that they, like Malkawi, were told by police to take off their hijabs. Muslim women have been forced to turn to the courts for reprieve.
“There is no legitimate need for law enforcement to remove religious head coverings for mug shots or any other purpose,” said attorney Emma L. Freeman of Emery Celli Brinckerhoff & Abady. “In 2020, the state should not be coercing people in its custody to violate their religious beliefs.”
Fighting In Court For Respect
Other Muslim women have experienced similar treatment from police, both in New York and around the country. Lawyers from CAIR - NY and Emery Celli Brinckerhoff & Abady filed a lawsuit against New York City in March 2018 after two incidents in which police officers forced Muslim women to remove their hijabs to be photographed while in custody. That lawsuit is ongoing. New York City is also facing a second complaint, filed in 2018, over its police department requiring two Muslim women to remove their hijabs and be photographed without them as well.
In Minnesota, a Muslim woman who says she was forced to remove her hijab in front of male jailers while taking a booking photo won her six-year legal battle in December. She ultimately received a $120,000 settlement from Ramsey County, Minnesota, which also agreed to change its correctional system procedures for female Muslim inmates and retrain its staff. In 2016, the same Minnesota county allegedly photographed another Muslim woman after forcing her to remove her hijab while in custody.
In California, a male police officer pulled a hijab off of a Muslim woman while she was in custody. She settled her lawsuit in August 2017. As of a result of the lawsuit, the Long Beach Police Department reversed its policy on religious head coverings.
Police in Portland, Maine, apologized for releasing photos of two Muslim women without their hijab in 2016 after promising the women the photos would be stored privately.
Last August, Malkawi met with Yonkers police officers at the local precinct alongside her husband and New York Child Protective Services to settle a family dispute with their adolescent child, who had raised allegations of physical abuse.
After the interview, police officers arrested Malkawi and her husband and demanded she remove her hijab for a booking photograph. Fearful of aggravating the officers who could escalate charges against her, Malkawi complied after her protests were ignored. According to the complaint, she was photographed twice without her hijab.
After taking the photos, the officers confiscated her hijab and left her exposed for the duration of her arrest, including her overnight stay in the holding cell while multiple men walked by.
The next day, Malkawi was ordered to appear in City Court, still without her hijab. Law enforcement didn’t return her hijab until her release nearly 36 hours later. “With her head and hair exposed against her will, Ms. Malkawi felt terrified, helpless, and violated,” according to the complaint.
New York Child Protective Services deemed the allegations against the parents unfounded, but the YPD still maintained at least two photographs of Malkawi without her hijab, according to the lawsuit. The existence of the photos is distressing for Malkawi, who is worried that other men can look at her uncovered photo, the lawsuit says.
Nearly a year later, Malkawi said she hasn’t recovered from the incident. She said she feels traumatized and suffers from uncontrollable flashbacks and nightmares. In the first month after the incident, she started seeing a psychiatrist for depression and anxiety.
“My whole life was no longer normal,” she said. “I’ve been through a lot of stress and anxiety and nightmares. I’m still suffering, to be honest.”
The lawyers asked that the YPD follow the precedent set in California, Minnesota, Michigan, Maine and elsewhere to reverse its policy in what “reflects a growing national consensus that there is no basis to require the removal of religious head coverings of arrestees while they are in police custody,” and to bring the department in alignment with Muslim women’s constitutional rights.
“This is important for me and for every Muslim. I want our voice to be heard,” said Malkawi. “I hope this will never happen to any sister.”