The pepper spray hit Byron Montgomery directly in the face.
The 28-year-old had been filming the arrest of a protester when a New York City police officer warned him to back off. Moments later, his throat and mouth still clogged with pepper spray, Montgomery was placed under arrest and taken to a precinct near the Manhattan neighborhood of Soho. From there, he was moved to a courthouse, where he spent the next several hours confined to a holding pen with more than 10 other people.
As Montgomery waited to be arraigned by a judge, the pepper spray turned powdery and flaked off his clothes. His cellmates started gasping and coughing. When he tried to nap on his side, a bead of sweat ran through the spray residue, onto his face. It felt like his face was on fire.
Montgomery said he was arrested on May 30. He wasn’t released until the night of June 2.
“It had everything to do with that I was a big Black guy and I wasn’t backing down from him. And he felt like he has authority over me, so I’m supposed to listen to him,” Montgomery said later. “My race had a lot to do with why I was arrested, why I got maced, why they kept me there.”
Montgomery is one of more than 2,000 people arrested in New York City so far during protests against racism, police violence, and a criminal justice system that disproportionately penalizes people of color. But protesters and public defenders say they’re seeing a pattern: People of color have already been punished more severely than white people for joining the demonstrations.
In interviews, arrested people say they believe their race was a factor in how the police treated them. Black people report that they were often dealt with less politely and with more force, while their cries for help went ignored. White protesters jailed alongside people of color said they were more able to defy police. Several said that the police never read them their Miranda rights.
The New York Police Department has not released a racial breakdown of arrested protesters and the charges they face, despite repeated requests from VICE News for this information. District attorneys in Manhattan, Brooklyn, Queens, and the Bronx have also not done so.
But public defenders in Manhattan, where more than 150 people have been arrested and arraigned in connection to the ongoing protests, told VICE News that almost all of their clients who faced protest-linked offenses are not white.
Between May 29 and June 6, at the height of protest arrests, the New York County Defender Services handled arraignments for 72 people charged in what the organization dubbed “protest-related cases” in Manhattan Criminal Court. Roughly 70% of the group’s clients were Black. More than 20% were Hispanic. Just about 5% were white. And the vast majority of the protest-connected clients were younger than 26.
“The only folks who were being held were the kids of color, who were being charged with these ridiculous, trumped-up felony cases. And that was just really, really enraging.”
“The only folks who were being held were the kids of color, who were being charged with these ridiculous, trumped-up felony cases. And that was just really, really enraging,” said Jessica Heyman, a New York County Defender Services attorney who handled arraignments for five protest-related cases and staffed the Good Call hotline, which offers legal aid to arrested New Yorkers. All of Heyman’s arraignment clients were people of color.
Attorneys who work for another public defender organization, the Legal Aid Society, said their individual experiences mirror the New York County Defender Services’ data. Rebecca Heinsen handled arraignments for six protesters in Manhattan; they were all people of color. Chelsey Amelkin was set to arraign seven protesters last week in Manhattan; six were people of color. Omar Fortune arraigned five protesters in Manhattan, all of whom were Black or Latinx.
“Few and far between did you see white people being arraigned,” said Janie Williams, a criminal defense attorney with Bronx Defenders who offered aid to people as they left police custody in Manhattan, Queens, and the Bronx. “White people didn’t have to see the judges that much. It was Black and brown people who were brought through the arraignment process and not given a ticket, not given a summons. They had to sit in jail.”
The NYPD didn’t respond to a detailed list of questions about this story. A spokesperson said the Manhattan DA’s office plans to release data about arrested protesters’ race shortly, but didn’t respond to other questions about the allegations in this story.
A spokesperson at the Bronx DA’s office also didn’t reply to similar questions. A spokesperson for the Queens DA said its office had dealt with only two protest-related cases. (Both were dismissed.)
Oren Yaniv, director of communications for the Brooklyn DA’s office, said that the office didn’t yet have data on arrested protesters’ races. Only 13 people have been arraigned so far in that borough, while more than 100 have received notices to come back to court later.
“My sense is that whatever criticism is out there does not pertain to Brooklyn,” Yaniv told VICE News in an email.
The number of protest-related arrests has dropped significantly over the past two weeks, especially after New York City Mayor Bill De Blasio instituted a curfew on June 1. But the consequences of being arrested in a protest may linger long after everyone involved in the demonstrations is released.
“Generally, people think, ‘Oh, you're arrested, you know, you're in the precinct, they let you go and, oh, you'll never do that again,’” said Rigodis Appling, a staff attorney at the Legal Aid Society and a founding member of its Black Attorneys of Legal Aid caucus. “No, it's ongoing. And you're at the mercy of the criminal justice system, which shows no mercy most of the time.”
Protesters arrested in New York City generally faced one of three processes. Hundreds of people were issued summonses, which are typically given out for lesser violations. (People who are being given summonses aren’t usually arrested. But at the height of the protests, cops arrested people for summons-level offenses anyway.)
Hundreds more were released from custody with what are known as “desk appearance tickets,” which allowed these protesters to go home and be arraigned by a judge in their criminal case at a later date.
Finally, according to available data from DA’s offices, a minority of protesters were held to be arraigned by a judge. Under New York state law, people must be arrested and arraigned within 24 hours. But between the flood of protest arrests and new remote procedures enacted since the coronavirus pandemic struck New York City, people frequently spent far longer in the hands of law enforcement. Though the Legal Aid Society filed an emergency lawsuit against the NYPD, accusing the agency of detaining more than 100 protesters for more than 24 hours, a judge denied the society’s request to immediately free those protesters.
What leads some protesters to get desk appearance tickets and others to be taken straight into arraignments isn’t always clear. While the NYPD Patrol Guide outlines the crimes that can receive a desk appearance ticket (DAT), the public defenders interviewed by VICE News were split on when and why these tickets are doled out.
“I would say, by and large, the DATs are less serious. But there are instances where somebody gets put through for something that’s totally minor, and you’re like, ‘Why didn’t they give you a DAT?’” said Legal Aid Society lawyer Alana Roth. “There’s so much randomness and capriciousness.”
Still, just like when someone is arraigned, when someone gets a desk appearance ticket, there’s still an arrest and an open criminal case hanging over their head.
“Before you get a desk appearance ticket, you are stopped, you are frisked, you are handcuffed, you are put in the back of a police car, you are brought to a precinct, you are fingerprinted, your retinas are scanned, you’re held in a cell for hours until an officer — in his or her discretion — gives you a ticket,” explained Scott Hechinger, a former public defender in Brooklyn who now runs Zealous, an initiative that trains public defenders to become advocates outside of courtrooms as well. “You can’t ignore the trauma and the literal violence that happens and is inflicted on people before they even get the ticket to begin with. It’s a full-fledged arrest.”
A pending criminal case can also complicate someone’s ability to secure housing, to apply for school, or get a job. Some jobs, including those that license people to work with children or drive with a rideshare company, can reject applicants if they have open criminal cases or have been convicted of a criminal offense.
Stephon Baines, a Bronx-based activist who goes by the name “Privilege B,” said he was arrested at a protest in downtown Brooklyn in late May and held by police at One Police Plaza, the NYPD headquarters in Manhattan. Initially, he was alone in a holding pen, unable to distract himself from wondering just how much trouble he was in or if he was the only one who’d been arrested.
“What did I get myself into by just trying to show my rights, trying to flex my rights?” he remembered thinking. The cops eventually brought more protesters into Baines’ pen — until there were about 15 people in a room that was only 30 feet by 30 feet, in Baines’ estimation. It was impossible to socially distance, and Baines didn’t have a mask.
At one point, he said he watched a smirking young white woman get escorted to her cell.
“She was not worried about the police. Actually, I feel like because she was white or maybe I was Black, I was more fearful of what the police would do to me,” Baines, 29, recalled. While he admired her confidence and commitment to the cause, he didn’t feel the same way when he left One Police Plaza, about six hours after his initial arrest.
For days afterward, he struggled with anxiety and depression.
“I’m not safe when I’m around the police,” said Baines. “I lost my appetite, I lost my desire, my will, motivation. But I will say it activated me, after a while. I kind of feel like I’m running out of time. I’m running out of time to fix this issue.”
He’s due in court in the fall.
In contrast, Sterling Strother, a 21-year-old white man who recently graduated from Yale, was arrested by the NYPD, booked, and released with a desk appearance ticket for protesting — two days in a row.
“A lot of my cellmates were held in the cell for close to 24 hours at a minimum before receiving a court order to see a judge with a public defender,” he said. “I'm a white man who graduated from a prestigious university and my cellmates are Black men. And it doesn't matter who they are, what they've done. But because they're Black men, they were treated very, very differently from me.”
Manhattan District Attorney Cy Vance has pledged not to prosecute arrests on charges of “unlawful assembly” and “disorderly conduct.” (Prosecutors in other boroughs have made similar pledges.) But many Manhattan public defenders told VICE News that many of their arraigned clients are facing charges of burglary in the third degree. That nonviolent felony, for entering or staying in a building with the intent to commit a crime inside it, carries a maximum sentence of seven years in prison.
Of all the arraignments handled by the New York County Defender Services between May 29 and June 6, nearly 70% involved charges for burglary in the third degree.
Despite that high volume of burglary charges, across all of the organization’s 72 clients, just four were allegedly caught holding merchandise from stores that had been broken into.
Six of attorney Amelkin’s intended clients faced charges for that alleged crime. At least four had never been arrested before, and facing a class D felony on a first arrest is unusual, she said. None of Fortune’s five clients, all of whom were younger than 23, had any past criminal convictions. They were all facing charges for burglary in the third degree.
“If they have a felony conviction at the age of 22 or 23, with that much life to live, that’s gonna be a very, very bad thing. That’s gonna be an impediment, to say the least, as they’re carrying on their lives,” Fortune said. “That’s gonna be a hell of an impediment.”
Public defenders suggested that law enforcement could choose to charge protesters or suspected looters with other, lesser charges, such as trespassing or criminal mischief.
“On a given night, you would generally see a mix of misdemeanors and felonies. And every case I arraigned last night was [a] felony,” Amelkin told VICE News the day after she handled arraignments from 5 p.m. to 1 a.m. “I do very firmly believe that the choice to charge these as felonies is a political one, and a political statement on the protest.”
When law enforcement charges people with looting-style offenses, public defender Williams said, it creates a perception in the public eye about who gets to be a legitimate protester — and who is merely an opportunistic thief.
“It’s your racism that determines when you look at someone, like, why was this person here? ‘I determined that this white person was here because they were protesting,’” Williams said, mimicking a cop. “And then you have an officer looking at another person, a person of color, a Black person, saying, ‘You know what, I think you were here because you were looting.’”
For many public defenders who spoke with VICE News, the fact that so many of their clients were people of color was ironic, given the nature of the protests. But it was far from surprising.
Black and brown New Yorkers have long been more likely to be arrested. A 2019 NYPD report captured those extreme racial disparities. For just a small snapshot: Though Black people make up just about 23% of New York City’s total population, 66% of all robbery suspects in 2019 were Black. Another 27% were Hispanic. Just 4% of robbery suspects were white people — who account for more than 33% of the city’s population.
“Arraignments are open 365 days a year, Christmas, New Year’s, Thanksgiving, 9 to 5, 5 to 1,” Roth said. “Even when ‘the numbers are down,’ there’s a steady stream of Black and brown humans that are going through the same exact shit that people are going through when they’re being protesters.”
Even people who weren’t ultimately charged with anything in connection to the protests were sometimes left devastated. A few protesters interviewed by VICE News were arrested, held for hours, and then simply let go — like freelance content creator V. Matthew King-Yarde, 42, who was arrested in late May while he tried to cover a Lower Manhattan protest.
After warning King-Yarde to move backwards, cops pushed him to the ground. Two of them put their knees on his back, he said.
“I was trying to get up. But they keep pushing me down. I get up. They push me down. I get up. They push me down,” said King-Yarde, who is Black. “My phone flew in one direction. My battery flew in another. They remove my bike and toss it aside.”
The officers cuffed King-Yarde with zip-ties, he recalled, and King-Yarde tried to fight his rising panic as he watched a fire truck drive through the street. The truck, he realized, was about to run over his phone.
King-Yarde also works as a courier for food delivery services, which would be impossible without a phone. He recalled begging the officer, “That's my phone over there. That's my life. You're going to make me homeless if you keep it there, please.”
The officer did nothing, King-Yarde said. And, just as he feared, the truck rolled over the phone and crushed it.
King-Yarde was eventually taken to One Police Plaza and, hours later, released from custody without being charged with a crime. But the memories of that night haunt him. He watched white protesters be given water, get their masks readjusted, and be spoken to calmly by police, he said. Meanwhile, he recalled being left helpless and essentially told to shut up.
For weeks after the arrest, King-Yarde didn’t work. He’s battling depression and suicidal thoughts. He can’t trust police anymore. “My mind keeps going, ‘You deserve what happened.’”
Public defender Roth arraigned four clients on protest-related charges in Manhattan in early June. They were all either Black or Latinx and had been held for at least a day. Two were 17 years old.
One was Montgomery.
Montgomery, who has no past criminal convictions, did not get a desk appearance ticket. Instead, he waited hours to be arraigned before a judge. He was charged with “obstruction of governmental administration” and “resisting arrest.”
Prosecutors offered to pause Montgomery’s case and reassess whether they’d move forward with it in six months’ time, Roth said.
“Basically,” Roth said, “they’ve held him in there for 48 hours and then they threw the case in the garbage.”
Days after his release, Montgomery was resilient: He had no plans to stop protesting and fighting to end police violence.
“I don’t want my daughter growing up in a world where she’s protesting about the way people look,” he said. “Most of us have kids, most of us are gonna have kids. Most of us are gonna have grandkids. You don’t want them to have to deal with what everybody else is dealing with. You don’t want them to be a story on the news.”
The National Suicide Prevention Lifeline is available at 1-800-273-8255. It offers 24/7 free, confidential support to people in suicidal crisis or emotional distress.
Cover: Protesters face off with t__he NYPD in Brooklyn during weeks long demonstrations responding to the killing of George Floyd. (Photo: Joe Hill/VICE News)
This article originally appeared on VICE US.