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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. If it's Friday, it's time for Ask The Mayor at 11:06. We can take your phone calls for Mayor de Blasio. My questions and yours for the mayor of the city of New York at 646-435-7280, 646-435-7280, or you can tweet a question @BrianLehrer, just use the hashtag, #AskTheMayor. Good morning, Mr. Mayor. Welcome back to WNYC.

Mayor Bill de Blasio: It is good to be here, Brian and it is good to be in a city where all 1,600 public schools are open today, Brian.

Brian: We will get to that in a second and of course we will talk overwhelmingly about city issues as we do, but do you want to make any comment about the president having coronavirus?

Mayor: Look, I think it's another reminder of why what many of us have been saying is right; wear masks, practice social distancing, take it seriously. Of course, this president didn't do that, unfortunately, and we've all paid the price but look, I wish him a speedy recovery, obviously, for the good of all but it is clear that people need to follow this guidance for everyone to be safe. This is just the object lesson of it.

Brian: Does it affect New York in any way that this happened?

Mayor: I only can say that I don't think there's a direct impact. I think it is a moment of reflection that we all need to realize. The truth has been clear to us for months and if everyone would just follow that truth we could actually work our way out of this crisis together even faster. I think it's just the ultimate example of that.

Brian: On the schools, yes, all 1,600 New York City public schools, if that's the number, open as of yesterday and congratulations because I know you fought very hard for that, whether people disagree or agree with the process.

Mayor: Thank you, I appreciate that very much, Brian. Look, I'll just tell you one thing. Being out there, yesterday I was at the One World Middle School up in the Bronx and in the end-- After all the debate among humans and adults [chuckles] and then you get to kids and you just see what kids are feeling and the joy they are feeling at being back in school with teachers they love, with their friends. It was really extraordinarily meaningful to see the human reality of our children right there where they want to be and then what a difference it makes in their lives. It's funny, we get into all these other topics but a lot of times we forget the feelings and the needs of our children. It couldn't have been clearer yesterday why they needed to be back in school.

Brian: Maybe the virus has accomplished something unique in human history; kids are happy to go to school.

Mayor: Exactly. [laughs]

Brian: Also on Wednesday, as you know, indoor dining became legal again but all of this is happening just as there are now 11 zip codes in the city with more than the 3% positivity rate considered a danger zone threshold for it's starting to grow exponentially again. I see that you've called on all New Yorkers to get tested. Do you really mean everybody?

Mayor: Yes, I do because this is how you get to the truth. What we found throughout this-- This is amazingly clear historical lesson, testing, testing testing. In the beginning, if we had testing, we could have approached this entirely differently. Where we really went deep into testing it worked and we had neighborhoods before this recent outbreak. Sunset Park in Brooklyn, Soundview in the Bronx were having real challenges. Heavy testing got us to the truth of what was going on, where to pinpoint our efforts, and also gave us a better picture of what was happening with the people.

There's no question that testing on the first instance and of course the basics, the social distancing, the mask-wearing have been the keys to success in New York City. If everyone goes out and gets tested, particularly those who never have or those who haven't for a while, it gives us a clearer picture and helps us know what to do. Now, here's a fascinating statistic I just got. I'll give you some news that I just received, Brian.

We cut out the city into two parts; the 11 cluster neighborhoods and then all the other areas of New York City and we looked at the seven-day average. This is the information as of yesterday. The overall reality for the city was 1.5%-2% on a seven-day rolling average. If you looked at the 11 cluster neighborhoods, it was very, very much of concern; 6.43% averaging across those 11 neighborhoods. If you looked at the entire rest of the city, another 135 zip codes around the city, 1.08%. The city of New York right now outside those 11 neighborhoods, 1.08%, just exactly where we have been and very, very favorable, the low-level positivity that any place else in the country would want. These 11 neighborhoods, we need to throw in everything we've got and it's particularly important that people get tested in those neighborhoods.

Brian: Do you have a specific shutdown plan for if the rolling seven-day average rates do go above 3% citywide which you called your trigger point for closing schools? Why has the DOE not released a specific shutdown plan for when the city's rate-- I should really say if the city's rate, hopefully, it will never happen, goes to 3%?

Mayor: I would strongly stick with that word "if" in this case.

Brian: Of course.

Mayor: I mean it more not just as a matter of hope, Brian, I mean it as an analytical matter. We have been watching the seven-day average and this always was the standard for the schools. I said at the very beginning, we took a voluntary move here. The state of New York said 5%, we said, "No, we want to take an even more conservative measure of 3%," but on a seven-day rolling average it gives you a more accurate read. Yesterday's seven-day rolling average I just referred to 1.52% citywide. Today is 1.53% citywide.

We will know a lot more in the next few days but what I think we see is we're hovering around a level right now that's literally half, only 50% along the way to the standard that would cause us a larger concern citywide. That's because of what I told you. If you look at the vast majority of the city right now, most neighborhoods are at 1% or less. What we need to do is really focus on these 11 zip codes with everything we got. I don't think there is a scenario anytime soon, based on what we're seeing, just pure numbers, where we're talking about a need for a larger shutdown.

In these neighborhoods, we're doing more and more intense enforcement. I don't want to see a shutdown in these neighborhoods but we've been very clear now for several days and community leaders have heard it and they know it that that is a live possibility if we don't see a turnaround of these numbers soon.

Brian: The teachers union says that the all-or-nothing approach, closed or open citywide based on a citywide 3% threshold for a week running, doesn't work for them and you should start looking more at school by school or neighborhood by neighborhood decisions. What's your response?

Mayor: I've been talking to the head of the union and our team constantly. I understand the concern but here are the facts. We said any school that has even a single positive test, we take action and if a school has two positive tests that are unrelated to each other and don't have a determined origin outside the school, we'll even shut down a school just based on two positive tests. We did that, in fact, yesterday with a school in Queens, a small special education District 75 school, but when it comes to the 11 zip codes, I'm watching constantly through our situation room. Are we seeing any evidence of a problem in the schools in those zip codes? So far no, we're seeing very, very few people, kids, staff, educators in those schools testing positive, nothing out of the ordinary.

We're testing at a lot of schools. We're giving mobile testing directly for the folks in the school community. I mentioned two schools yesterday. In the 11 zip codes that the UFT asked us to do testing at and we got 178 test results, one came back positive. We're watching those schools constantly and we see anything start to move then we'll look at them individually and we'll absolutely be ready to act school by school as needed.

Brian: One other question about this, and then we'll start taking some callers, there's a new study from NYU that suggests you're not planning enough testing for the public school students to prevent meaningful spread. I'm reading from the Times coverage of this; it says, "The city is currently planning to test a random sample of 10% to 20% of people including students and adults in each city school once a month, starting next week, but in order to reliably detect outbreaks and prevent them from spinning out of control, New York may need to test about half of the students at each school twice a month. Researchers at NYU estimated experiences in Germany, Israel, and other countries suggest outbreaks could spread quickly despite the city's relatively low rate of infection according to the researchers." Will you ramp up testing? Do we even have the tests to that amount?

Mayor: Look, I think the important point here is to realize we're in a city that has a high level of free available testing over, 200 sites. This is a city that has emphasized now for months and months that we want people get testing. We're making it easy and available for folks. That's an X factor here that I'm not sure the study has taken into account. The other thing to look at is all the measures that we put in place that school systems around the world did not, including ones that opened successfully. We literally took the most stringent health and safety standards from around the world and combined them into one gold standard.

There are many school systems that have succeeded but don't require masks for all their staff and all the kids. We literally and you've seen the pictures, Brian. Everybody walks into a New York City public school has to be wearing a mask and have to keep it on all day. We have social distancing. You have 9 kids, 10 kids in the classroom. You've never heard of that in New York City before. You have constant cleaning.

All of these things mitigate against the spread. Our public health leaders have said, as much as they do think it's great that we're going to have regular testing, they're much more concerned about the proactive preventative measures than about testing happening once a month. Their point is, "Do the things to stop the spread of the disease rigorously." No school system in the world is doing as much that I've seen taking all these measures and applying them simultaneously to stop the spread in the school community. That's why so far we've seen-- Our situation room has been up and running for weeks. We're seeing very, very few cases in our public schools.

Brian: Mike in Jackson Heights. You're on WNYC with the mayor. Hello, Mike.

Mike: Hello?

Brian: Mike you're on the air.

Mike: Yes, hi. I have a question regarding outdoor dining. If the restaurant goes out of business, who's responsible for taking away the area that they set up? That's one of my questions. The second question is, with the lack of parking in the neighborhood, I noticed some restaurants are building up the outdoor dining area on both the main street and the side streets. I got a ticket for waiting for my order from the restaurant, I'm trying to support the local restaurant. I got a ticket for double parking just for waiting for my order to be-- We're trying to help the restaurants to be in business, but at the same time, they are forcing us not to help them by--

Brian: Whoops. Mike's line just flipped off, but I think he got his question out.

Mayor: Yes, I think I got the basic concept. Mike, look, first of all, outdoor dining, we now have over 10,000 restaurants in the city participating that has helped us bring back-- That's pushing on towards 100,000 jobs come back because of this. Now, outdoor dining will be permanent in New York City and particularly the combination of open streets and outdoor dining, which has been absolute success. That's going to be permanent. I think it's going to bring back the industry and just make life better in this city. We really want to support the restaurant industry.

I have not heard of a lot of restaurants that aren't going to be using their outdoor dining facilities. If they didn't, of course, it's their responsibility to take it down. So far there's not been an issue I've heard about. In terms of things like the parking spaces taken up, I believe this is a good trade-off that what we're getting for our community and for people getting their livelihood back and for the good of the city, even if it takes up some parking spaces, I think it's been a very good trade-off. To me, this has been an example of people creating something in the midst of a really tough time. New Yorkers creating something really good and that's why it's going to be continuing and be permanent.

Brian: David in White Plains. You're on WNYC with the mayor. Hello, David.

David: Hello, good morning. My name is David. I'm a law student in Queens. I'm a legal observer for the National Lawyers Guild. I'm calling about a protest which I observed on June 4th in the Bronx when a large number of protesters were arrested. Also, all the legal observers were arrested at the same time. We've been calling this the Mott Haven Kettle. My question is related to the curfew. At that time, you'll recall there was an 8:00 PM curfew. We, legal observers, had documentation from the mayor's office, saying that we were essential workers. Now the NYPD is claiming that we were not essential workers and were thus out past curfew. My question is, who's right there? Were we essential workers or not?

Mayor: Yes, you were. With all due respect to NYPD, the NYPD is wrong on this one. Legal observers-- Look, as someone who's protested a lot myself over the years, there is a sacred role played by legal advisors. Excuse me, legal observers. They need to be treated with deference. As you said, very important point you made, David. You had documentation proving you were legal observers. That is an essential role. That is part of how we protect our democratic rights.

If someone didn't have documentation, if their status was unclear, I can understand there could be some confusion, but a legal observer doing what a legal observer is supposed to identify themselves and clarify their role, of course, they're not supposed to be arrested. If, and God forbid someone committed a specific crime, that's a different matter, obviously. If you're talking about their role, observing, protecting people's rights, of course, they're essential workers. Of course, they're not supposed to be arrested.

Brian: Let me go further with this because I wanted to ask you anyway about the new report from Human Rights Watch, which we usually think of as issuing reports on authoritarian countries. Now they issued a report on NYPD behavior. I think the exact protest that the caller was referring to violating what they call international human rights laws at this Bronx protest, Mott Haven protests, this summer.

It was where police had kettled in a group of protesters, and then 10 minutes before the at 8:00 PM curfew that was in effect that night, police charged the crowd what the report from Human Rights Watch calls, "Unprovoked and without warning, whaling their batons, beating people from car tops, shoving them to the ground and firing pepper spray in their faces." Human Rights Watch identifies 61 people who suffered injuries. My first question on this is, do you dispute anything in the Human Rights Watch report?

Mayor: I have not read it yet. Some of that characterization does not sound like what I heard at the time, including from our own observers, from civilian observers who were there, but I will say this. I am awaiting an independent review by Department of Investigation and our Law Department. I want to know exactly what did happen. I want to know exactly what was done right. If things were done wrong, people need to be held accountable. If practices have to be changed, they should be.

There was a very specific set of circumstances there. There was a specific issue earlier that evening with a threat of violence and some evidence of violence that I know affected the environment. More importantly, we've got to get the objective facts. That's why a full investigation is being done. Going forward, look, what's clear in this city is the right to protest has to be protected. Whoever you are, whatever your values, your right to protest has to be protected. People have to know it, and they have to feel it. Overwhelmingly, what I've seen is peaceful protest and overwhelmingly what I've seen is the NYPD respecting and actually facilitating the peaceful protest by walking along with it or riding along with it. That's what the norm has been in the city. That's what it has to be going forward.

Brian: That protest was in June. You promised when we talked about it on the show, I think the very morning after that you would launch a review. You just referred to the review again. Now it's October. Have you figured out whether the NYPD misbehaved or not?

Mayor: Again, it's not my personal review. It's an independent review, looking at it by our Department of Investigation, which is known for being very rigorous and our Law Department and our Corporation Counsel, Jim Johnson, who has a long history of work on civil rights. I'm waiting for their conclusions. I know they've done very extensive investigatory work. I think they're doing some additional work now. That's going to be what I look to as the final word on what happened here.

Brian: We have another caller on this who was there and I'm going to take Deolloh in the South Bronx. Deolloh, you're on WNYC with the mayor. Hello.

Deolloh: Hello. Hey. Good morning. I am just like follow-up question to the same topic here. I was part of the protest. I was part of also the few interviewed for the Human Rights Report. As you already mentioned to the mayor, the NYPD trapped the protester 10 minutes before 8:00 PM and start beating them and so my question is, I've been participating in different protests throughout the city, but this was the most brutal protest that NYPD responded that I have ever seen. Is this because South Bronx is predominantly Black and brown neighborhood because prior days, I participate in Manhattan and Brooklyn. NYPD was there but they let people always until 10:00 PM before they start telling people to go home but over there in the South Bronx, 10 minutes before 8:00, there was blocking people and start beating people. What was the explanation of that behavior?

Mayor: Deolloh, I appreciate the question. Again, I have a lot of respect for everyone who protests for change so long as they do it peacefully. I have all respect for Human Rights Watch. I'm going to look at the report. I want to know exactly what happened there. Again, our independent investigation is the one I'm looking to for the bigger answers. I do not believe based on my own substantial personal, looking at the protests all over the city, literally having gone and witnessed them all over the city. I don't believe the issue is the neighborhood where the protest occurred.

I do believe there was a special circumstance there because of a threat of violence that was received earlier in the day and some evidence that it was being played out. That was in a moment where, unfortunately, we had seen real violence against people, against civilians, against police officers, against property. There was that backdrop but I want to be very clear, that could be something that has to be taken to account, but it doesn't change the basics. Peaceful protesters have to be respected.

If there's going to be arrest for a specific reason in a protest context, the warnings have to be given very clearly, and people have to be given time to adjust to those warnings. I've been in a lot of protests and what officers are supposed to do is say if it's the curfew, or if they need you to not be in a street or whatever it is. They're supposed to give you due warning to be able to adjust so that if you do not intend to be arrested in a protest context, you can avoid arrest. If that didn't happen, then that's going to be a real problem for the people who were in charge on that scene.

Brian: One more follow-up on this because part of the bottom line of the Human Rights Watch report is that they're calling on you to fire or otherwise discipline Police Commissioner Shea and Chief of Department, Monahan, who was on the scene ordering the charge. In Shea's case, specifically, for what they call misinformation; covering up that the protesters did not have gasoline or firebombs that the NYPD, that Shea in particular used as an excuse to defend the assault. Now, you've just repeated here this morning, I think a reference to that. Let me play a clip of Commissioner Shea from shortly after the event.

Police Commissioner Dermot Shea: We intercepted them, literally, literally Jake, and they were bringing a gun and gasoline and weapons to the scene of that. That's actually what happened.

Brian: Even the New York Post coverage of this says that isn't actually what happened. The gun arrest happened a half a mile away, nearly three hours before the protest was broken up and no gasoline was ever recovered, officials later clarified. That way, let me just ask the question, that's why Human Rights Watch is asking you to consider firing Police Commissioner Shea for that misinformation as they characterize it.

Mayor: Brian, look, this is not how things should work. I respect Human Rights Watch. They've provided one perspective. There is a full investigation being done now by the Department of Investigation. That's what I'm going to look at. Human Rights Watch has their perspective and their resources and that should be another piece of information that we bring to bear.

Brian: Why would you trust the NYPD review over Human Rights Watch, which has a lot of documentation?

Mayor: Again, I said Department of Investigation, which is an independent entity responsible for investigating all city agencies. Respectfully, you are-- I don't blame you for listening to people who you feel are telling you something important, that's fair. You're listening to Human Rights Watch, you're listening to people who were protesting. That's a part of the picture we need to know that, but we need a complete investigation where everyone who involved that is pertinent is interviewed. That's what Department of Investigation is doing to understand exactly what happened. On the question of the threat of violence, we had seen violence in the days before and there were specific threats directed at that site earlier in the afternoon. I know that for a fact because it was reported to me earlier that afternoon.

Brian: Different than the ones referred to there?

Mayor: Again, please.

Brian: Different than the ones that the commissioner referred to there inaccurately?

Mayor: Yes and the point though is I don't want anyone to go by one person's story or another person's story. I want a complete investigation. Then the people if things were done right, they were done right. If they were done wrong, anyone who did something wrong should be held accountable in the appropriate way but we're not doing it based on anything short of a complete investigation.

Brian: Craig in Westchester. You're on WNYC with Mayor de Blasio. Hello.

Craig: Hi, Brian. Thank you so much for having me. Mayor, I have a question. Brian reported the mail-in ballots that were sent to the wrong people in New York City. It was due to the printing errors caused by the vendor contracted by the Board of Elections. Brian also reported the vendor has a history of being a big donor to the Republican Party. Is this an attempt by the vendor to sabotage our democratic voting process? What specific investigations are being done to understand what really happens since it's not likely the printing errors and the vendor's political motivations are a coincidence or random chance? Are there any penalties that will be imposed on this vendor?

Brian: Quick thing, I just wanted to clarify that I did not do that reporting. Other people did that reporting, and we just discussed it on yesterday’s show, but Mr. Mayor, go ahead.

Mayor: You're an honorable man, Brian. Craig, it's an important question and honestly, Craig, if you'd asked me that question five years ago, I would have said, "Oh, come on. It's just a coincidence," but in this environment, I don't think anything can be regarded so simply as a coincidence. I think it should be investigated.

Now, the city does not control the Board of Elections, much to my chagrin because the Board of Elections has really mis-served New Yorkers and deeply corroded people's trust in the electoral system. Brian, one of the things we need here is a whole absolute overhaul of the Board of Elections. The state regulates it, the state controls it. The state should start over again and create a modern, transparent, effective agency or it should be handed over to the city and we'll run it better than what's going on now.

I think Craig's point is well taken. If the vendor might have had a motivation because it seems awfully strange that something this big and this mistaking could happen. There should be an investigation. What I will do is find out whether there's any way the city can do that, even though we do not control the Board of Elections or whether the state would have to do that investigation, but I think it does need to be examined.

Brian: By the way, I want to credit Gothamist for the clip that we played of Commissioner Shea. That was Commissioner Shea talking to Jake Offenhartz of Gothamist who reports on the NYPD frequently and is continuing to follow up on the Human Rights Watch report. I'm sure they'll follow up on the mayor's comments here this morning on this at gothamist.com. We're almost out of time. Did you see the study indicating there's very little COVID spread on mass transit either in New York this summer, as people started to return in some numbers or in other cities?

Mayor: I did. I'm going to be talking to our public health team about what the larger ramifications of that may be. Now, it's one study and we never take one study as the final word on anything, but it's hopeful. It is interesting that more and more people have been coming back to mass transit with a very high level of mask usage. We, again, the city overall, we've been extraordinarily consistent on having a low level of COVID positivity for months and months. That's a hopeful sign. I do want to commend New Yorkers. The reason mass transit is working better and healthier is because people are actually following the rules and wearing those masks. That's where it begins and ends.

Brian: We're going to do a segment on that probably next week on that study, but my question about that is that it assumes a low infection rate has already been achieved, which it was in New York over the summer, and I think the other cities that they cite it. If more people on a subway car have the virus, if it starts spreading again, I don't know if they're indicating it would not spread on the subway?

Mayor: It's a fair question, but I want to come back to what our public health team says constantly. That the fundamental behavioral change that the people in New York City achieved. It doesn't mean COVID left our borders, packed up, and went away. It does mean we fundamentally-- We all bent that curve profoundly by our actions and it means keep doing it. In fact, do it even better. There's a lot of people wearing masks. I want everyone wearing a mask, I want them wearing it the right way and covering their nose and mouth and being really, really consistent about it.

I want everyone being as careful as they can be about social distancing and just the basic things, the hand sanitizer, the hand-washing. The more you do that, the better. COVID will still be out there in the atmosphere but it's amazing the ability of motivated people to keep it in check even as-- You see how much more activity there is on our streets, Brian, since Labor Day. You see people out there outdoor-dining. You see a lot of places in the city looking more and more like they're getting back to normal and yet, the overall number isn't moving in this city. That's a good sign that people are taking matters into their own hands and continuing to beat back this disease.

Brian: Thank you as always, Mr. Mayor. Talk you next week.

Mayor: Thank you, Brian. Take care.

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