The MTA's pandemic-era rules prohibiting the use of certain sized carts and lingering in a subway station are designed to unlawfully discriminate against homeless New Yorkers, according to a new lawsuit filed by advocates on Friday.
Those rules, which were first enacted in April "to safeguard public health," and then made permanent in September, prohibit wheeled carts 30 inches long or wide. They also bar riders from staying in a subway station longer than an hour—unless they are performing or distributing pamphlets or engaged in other activity the MTA permits.
The lawsuit claims that the MTA did not provide the required evidence necessary to make the rules as required by state law; while housing status is not a protected class on public transit, because homeless New Yorkers are disproportionately people of color and people living with disabilities, the rules are effectively discriminatory.
"The rules are not about 'safeguarding public health' and ensuring that essential workers are 'able to maintain social distancing,' but rather are about permanently excluding homeless persons from the subway system," the lawsuit states.
The complaint was filed by the Safety Net Project of the Urban Justice Center, Picture the Homeless, and Barry Simon, a disabled homeless shelter resident who has been ejected from subway stations because of the new rules.
In the suit, Simon, who is Black and lives with a disability, claims that NYPD officers have approached him dozens of times "because he was spending too long in the station, that he had to leave the station. On several occasions he was threatened with arrest if he did not leave immediately."
MTA spokesperson Abbey Collins responded to the complaint in a statement: "We are reviewing the lawsuit that we first learned of in the press. We will vigorously defend the regulations in court that were put in place to protect the health and safety of customers and employees in the midst of a global pandemic – period.”
Governor Andrew Cuomo shut down overnight subway service in early May, citing the need to disinfect the trains to stop the spread of COVID-19 and protect the essential workers who needed to use them during the day. But the move displaced the few thousand New Yorkers who ride the trains overnight for shelter, and was widely seen as a means to eject the homeless from the system.
“That is disgusting, what is happening on those subway cars,” Cuomo said at a press conference in late April, brandishing tabloid photos of people sleeping on the train. “It’s disrespectful to the essential workers who need to ride the subway system.”
Now, there is widespread agreement within the public health community that surface transmission of COVID-19 is exceedingly rare, and that mass transit is reasonably safe if riders wear masks, yet the overnight cleanings continue. The trains still run, because they are used to transport workers and police, and because there is no room to store them.
At a City Council oversight hearing earlier this week, councilmembers criticized the MTA's leadership for the lack of 24/7 subway service and their treatment of the homeless. Over the previous weekend, an MTA worker told a customer on Twitter that benches in the 23rd Street station were removed to prevent the homeless from sleeping on them. The tweet was later deleted, and the agency later claimed that the benches were actually removed for cleaning, and replaced.
MTA Chairman Pat Foye, who is one of the defendants named in the lawsuit, told councilmembers at the hearing that the benches were not removed because of the homeless. But New York City Transit Interim President Sarah Feinberg, another named defendant, acknowledged that removing benches to deter the homeless had been the MTA's practice.
“I think going back several years at this point for various reasons, because we’re changing the layout of a station, because it makes sense to remove them occasionally as a last resort due to some encampment issues, and then often replace them,” she testified.
On FOX 5 on Friday morning, Feinberg blamed the city for not doing enough to address the housing crisis.
"I have called on the City, I've begged for help. I've said, you know, the solution here is housing and a shelter system that works, not just, you know, letting people go into the subway system," Feinberg said.
"They've taken an emergency situation and used it as a springboard to create a permanent rule that will continue to affect homeless New Yorkers, predominately, for many years to come," said Marika Dias, the managing director of the Safety Net Project, one of the plaintiffs in the lawsuit. "They're about excluding the homeless from the subway system."