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NYC Gives Arrested Legal Observers a Check and a ‘Middle Finger’ to Make Their NYPD Lawsuit Go Away

The NYPD's behavior in Mott Haven was condemned in a lengthy Human Rights Watch report as a violation of constitutional rights and international human rights law.

8:00 AM EDT on July 21, 2022

Two pictures of a burly police officer in riot helmet and navy polo shirt that reads "NYPD Legal" on the back.

Sergeant Kenneth Rice of the NYPD Legal Affairs Bureau at the Mott Haven kettle (Hernandez et al. v. City of NY, et al. complaint)

Legal observers who were arrested while performing their roles of documenting police conduct during the Mott Haven kettle of protesters in the summer of 2020 have won a judgment in their lawsuit against the NYPD. The judgment, announced today, will require the City of New York to pay the dozen legal observers nearly $50,000 total, in addition to paying out legal fees that could run into the hundreds of thousands of dollars.

The federal lawsuit was brought by 12 people who were volunteering as part of the National Lawyers Guild’s legal observer program during the Bronx incident, in which the NYPD used phalanxes of heavily armored police to corral and detain several hundred marchers, preventing them from moving or leaving the area until after the city-imposed 8 p.m. curfew, and then violently arrested the protesters, as well as unaffiliated bystanders, charging them with breaking the curfew. The entire episode was condemned in a lengthy Human Rights Watch report as a violation of constitutional rights and international human rights law. The NYPD commissioner at the time, Dermot Shea, praised the operation as “executed almost flawlessly.”

Judgments like this one, made under Rule 68 of the Federal Rules of Civil Procedure, are difficult to explain: They are like a judgment won after a trial in that they resolve the lawsuit in the plaintiff’s favor with an enforceable judgment; but they are like a pre-trial settlement in that parties make an agreement to resolve the lawsuit without actually engaging in a trial.

Mostly, Rule 68 functions as a disincentive for plaintiffs to take cases to trial, and a way to punish those who do. For defendants like New York City and its police department, offering a Rule 68 judgment can be a cheap and powerful tool for making a lawsuit go away without having to turn over embarrassing evidence or admit that anyone did anything wrong. 

Under the terms of the judgment offer, it “is not to be construed as an admission of liability by defendants or any official, employee, or agent of the City of New York, or any agency thereof; nor is it an admission that plaintiffs have suffered any damages.”

“In this resolution, the City and the police department don’t provide any transparency or accountability for what they’ve done, and change nothing about their policies and practices going forward,” said Gideon Oliver, who with Elena Cohen and Remy Green represented the legal observers in the suit. “All they do is cut checks. and the city can’t throw money at legal observers with one hand and give them the middle finger with the other, which is what it keeps doing.”

The NYPD did not respond to a request for comment. A spokesperson for the New York City Law Department, which is representing the NYPD in the lawsuit, responded to questions with the statement: “This settlement is in the best interest of all parties.”

The actions of the police in Mott Haven that day are the subject of multiple lawsuits currently winding their way through federal court—lawsuits that have been repeatedly delayed by the New York City Law Department’s failure to turn over discovery materials, as well as by the abrupt departure of the lead lawyer representing the NYPD in those cases after the discovery that she had lied to a judge and forged documents in the litigation.

But among the disturbing images from the police action were those of the arrest of legal observers, and video footage showing one of the NYPD’s in-house lawyers, Sergeant Kenneth Rice, instructing police that “Legal observers are arrestable.”

The irony of the NYPD targeting legal observers, whose reporting and whose visible presence are supposed to function as a check on police violation of protesters rights, is not lost on the legal observers or their lawyers.

The Civilian Complaint Review Board recommended disciplinary charges against Rice for his actions that day, but Rice ultimately was let off the hook after the NYPD Legal Department introduced new evidence that Rice was just following the orders of a senior official who is himself not subject to CCRB oversight. 

To date, no NYPD employee has suffered any consequences, legal or administrative, for the arrest of the legal observers, and the department has not identified any changes to its policy on the treatment of legal observers during protests.

But even with a judgment resolving the case, the legal observers are hopeful that their experience can help lead to reform of the NYPD’s approach to people exercising their right to protest. Their sworn testimony is also part of other lawsuits arising from police actions against protests in the summer of 2020, which are still proceeding.

The violent arrest of legal observers in Mott Haven is not an isolated incident. Another legal observer, Ryan Minett, was targeted and arrested a month later during a protest outside City Hall. His lawsuit was resolved with a City pay-out of $7,501, plus attorneys fees and costs. Yet another legal observer, Darren Martin, was arrested in October of 2020 when he was kettled with protesters; his claims were settled by a $10,500 by New York City without a lawsuit.

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