Last September, the City of New York agreed to settle a class action lawsuit over police misconduct during the 2020 Black Lives Matter demonstrations. Attached to the payout is a court order limiting how the NYPD can respond to protests. The reforms include restricting use of force tactics like “kettling” and developing a tiered system for determining the appropriate personnel to deploy at a demonstration.
But the settlement’s authorization was delayed for five months after the city’s largest police union attempted to “torpedo” the agreement over officer safety concerns. The motion to deny from the Police Benevolent Association (PBA) was ultimately rejected by a judge last Wednesday, Feb. 7.
Despite the favorable decision, the plaintiff’s lawyers say those months of deliberation could have gone toward rolling out the reforms. The delay also coincides with calls for a ceasefire in Gaza, probably the largest protest movement in the city since 2020.
“[Around September], we actually filed [the settlement], the court approved it, and then the PBA [immediately] files its motion and the court had to withdraw,” said NYCLU staff attorney JP Perry. “But we were ready to go, to hit the ground running in September.”
Jennvine Wong, Legal Aid Society staff attorney, also weighed in. “The PBA’s motion to ask the court to reject this settlement is what delayed the implementation…because we’ve had to go through these arguments,” she said.
To be clear, the PBA was not initially named as a defendant in the lawsuits. Rather, it entered as an intervenor—an interested party allowed to participate in the legal proceedings. Subsequently, two other NYPD unions representing higher-ranking officers—the Detectives Endowment Association (DEA) and the Sergeants Benevolent Association—were also at the table. But both signed onto the agreement.
Motions to intervene by police unions in NYPD-related litigation are not always granted. They were most notably absent from the Floyd v. City of New York lawsuit that spurred sweeping reforms of the department’s stop-and-frisk policies against Black and brown New Yorkers.
Union participation means direct input by police, who are directly responsible for adopting the reforms.
The DEA signed onto the agreement with hopes of maintaining a voice in similar discussions in the future, according to a union spokesperson. Reviewing the reforms also allows police unions to identify some practices already in place, which the settlement’s court order would codify. But intervenors do not have absolute veto power, according to the judge’s decision.
“All of these parties agreed to this and the PBA essentially didn’t like what we all agreed to,” said Perry. “[It was] trying to block this entire settlement that took over a year of negotiating to go into effect. It would have set a really dangerous precedent if the PBA had been able to do this [in] a really big law enforcement accountability settlement. I imagine that it would be a tactic that other police unions would try to use in other cases like this going forward.”
With the PBA’s challenge scrapped, the city can now initiate the first phase of the reforms, which mandates the NYPD update training and rules to reflect the settlement’s terms.
“The agreement doesn’t set out a set timeline, but I would say there is an incentive for the city to get this done expeditiously,” said Wong. “The gears should start rolling and we should be getting down to the hard work of changing the training and policies, and rolling it out across the department now.”
The reforms would split protest responses into four tiers. The lowest tier limits the NYPD to community affairs outreach and directing traffic. The middle tiers allow the NYPD to deploy more officers based on crime risk. The highest tier allows the department to disperse a crowd, but requires protesters to break in or block a sensitive location.
The NYPD can start at higher-tier responses if credible intelligence points to the need, answering a chief concern of the PBA. The calls go through the First Amendment Activity (FAA) senior executive, a new role created by the settlement to centralize decision-making for protest deployment. The reforms also ban “kettling”—the practice of encircling protesters—unless there’s probable cause for an arrest.
Last month, PBA president Patrick Hendry argued the settlement “ignores the dangerous realities we face on the streets,” pointing to injuries suffered by officers during the 2020 protests.
“The settlement is not only dangerous for the PBA members assigned to protests—it is also dangerous for peaceful protestors and the public at large,” he added in his statement.
State Attorney General Letitia James, who represented the plaintiffs in the settlement, celebrated the reforms in her statement last week.
“The policing reforms led by my office, Legal Aid Society, and NYCLU, and agreed to by the NYPD, will better protect New Yorkers’ public safety and their constitutional right to peacefully protest,” she said on February 7. “I am pleased with today’s decision to allow the terms of our agreement to move forward in full.”
The settlement also confirms restitution for many protesters who faced alleged police abuse from the NYPD while protesting the police killing of George Floyd. That includes the lead plaintiff, Jarrett Payne, a Black New Yorker who NYPD officers allegedly struck repeatedly with batons even though she never resisted or received orders from police.
Perry said the PBA’s challenge shifts the lawsuit’s narrative from police brutality to officer safety, which she believes undermines the purpose.
“This is about protecting people’s rights,” she said. “This is about protecting people from abuse and excessive force at [a] protest. And as a byproduct, that also happens to keep officers safe.”
Tandy Lau is a Report for America corps member who 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.