Freedom of assembly isn’t free. At least not for the NYPD, whose agreement to reform and curtail protest enforcement stems from settling lawsuits led by State Attorney General Letitia James, along with the NYCLU and the Legal Aid Society, over use-of-force tactics against 2020 Black Lives Matter demonstrators. The settlement order was accepted and finalized by federal district judge Colleen McMahon last Thursday, Sept. 7.
“The right to peacefully assemble and protest is sacrosanct and foundational to our democracy. Too often, peaceful protesters have been met with force that has harmed innocent New Yorkers simply trying to exercise their rights,” said James in a statement. “Today’s agreement will meaningfully change how the NYPD engages with and responds to public demonstrations in New York City. As the Attorney General, it is my duty to protect New Yorkers’ rights and this agreement will ensure that peaceful protesters can make their voices heard without fear, intimidation, or harm.”
The NYPD will soon abide by a scaling tier system when approaching protests, preventing them from deploying heavily armed units like the Strategic Response Group (SRG) unless protest conditions escalate to meet the criteria for a higher-tiered response. It ranges between four progressive tiers: The first only allows for directing routes and enforcing traffic laws, and the fourth permits the NYPD to disperse a protest. However, police can jump immediately to the third tier if there’s probable cause for an arrest, allowing for the SRG’s deployment, according to the Mayor’s Office.
Other reforms include the end of “kettling,” the practice of encircling and occluding protesters with bikes or shields. Police can only surround specific individuals subject to arrest and must guide other demonstrators safely out of the enclosed space. In addition, the department cannot use helicopters to intimidate or disperse peaceful protesters, and tools to loosen or remove restraints like “flex cuffs” or zip ties must be available.
NYCLU/Legal Aid Society lead plaintiff Jarrett Payne, a Black New Yorker from Queens, said it was impossible to appraise restitution for “trauma and on-going fear evoked by the NYPD’s brutality.” The 11 plaintiffs’ complaint detailed allegations from a 2020 Manhattan protest and says that police blindsided Payne with baton strikes before handcuffing him so tightly that a pair of scissors broke when officers attempted to remove his bindings. The document also stated that his head bled profusely and no first aid was administered in processing other than a bandage, despite pleas from other detainees.
“I am haunted every day that the NYPD has the authority to harm me if they deem necessary, and potentially use it,” said Payne. “Ultimately, I am proud of the settlement we reached in this case, and that it can potentially bring about more accountability and transparency in future situations. Hopefully, it will signal to more people that they can stand up to their brutality as well.”
A new NYPD leadership position—First Amendment Activity (FAA) Senior Executive—will oversee police protest responses, including the application of the new reforms. NYCLU Senior Staff Attorney Daniel Lambright told the Amsterdam News that establishing a centralized position is crucial for identifying the directly responsible chain-of-command after serving as counsel to the Payne litigation.
“The FAA position creates a lever [for] more accountability,” said Lambright. “We found in discovery that we didn’t know who was making the decisions for deployment [and] operational decisions. All of them were pointing fingers at others, which makes it incredibly hard to litigate and figure out who was actually responsible for the mistakes and the errors that occurred in policing the protests.
“With this FAA executive, that creates that lever of accountability because that person will be responsible for overseeing protests, and it will be easier to identify failures that come about in the future.”
But what does accountability look like after the agreed-upon reforms? Earlier this year, the Civilian Complaint Review Board (CCRB)—the city’s independent NYPD oversight committee—found that around 145 cops committed misconduct during the 2020 protests. Yet the police watchdog lacked actual disciplinary powers and mainly recommended actions to then-NYPD Commissioner Keechant Sewell, who frequently waved them off.
Lambright said relevant officer misconduct still goes through the CCRB, but due to a federal judge overseeing the case, there’s an extra level of accountability to ensure the reforms are taking place and use of force is mitigated at protests on an institutional level.
“If an individual officer hits a protester in violation of the agreement, they should definitely go through the CCRB,” Lambright said. “But it rises to the level of going to the court if we notice, let’s say, in every situation where protesters are getting brutalized by officers, the commissioner is deviating from discipline. If there’s large-scale efforts to not discipline officers that are committing atrocities at protests, then that’s something that we would bring up in the collaborative committee [to] say ‘you need to change this.’
“And if that change doesn’t occur, then that’s something that we might bring to the court’s attention and make them make changes that would ensure that there would be discipline for officers at protests.”
In a video statement, Mayor Eric Adams commended the agreement as an “another step in making the reforms necessary to move our city forward.”
“During the summer of 2020, the frustrations of a global pandemic, a tragic killing, and the use of spontaneous demonstrations throughout the city drew people from all over the country—some with good intentions and some with bad,” added NYPD Commissioner Edward Caban. “This presented many unique challenges for officers, who did their best to protect people’s rights to peaceful expression while addressing acts of lawlessness. Now, the NYPD has re-envisioned its policies for policing protests to deal with these unique scenarios. This agreement represents the department’s commitment to continually improving to ensure the public remains safe and individual rights are protected.”
An NYPD spokesperson pointed to a 20% decrease in actions filed against the department between 2020 and 2022. They also argued that the “cases, and the resulting payments, do not speak to the NYPD’s policies and practices today.”
Tandy Lau is a Report for America corps member and writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.