The last of the consolidated class action lawsuits arising from the NYPD's treatment of protesters during the summer of 2020 resolved on Tuesday with a settlement that commits the NYPD, at least for several years, to a series of reforms, many of which the department claims it already embraced. Nowhere in the settlement or its announcement does the NYPD concede that it violated anybody's rights.
The settlement puts in place what is effectively a federal consent decree, an agreement over reforms the NYPD will undertake that is ultimately enforceable by the court. This is not the first federal consent decree the NYPD has been put under—the department continues to be answerable to federal courts over its surveillance of political groups and racist stop-and-frisk regimes. But this settlement is weaker than those cases in significant ways.
Unlike the Handshu settlement, which arose out of the NYPD's widespread surveillance of people based on nothing more than their constitutionally protected political speech, the court doesn't retain permanent authority to make sure the NYPD is keeping its end of the bargain. After an initial period of training, this settlement is only enforceable for four years. After that, the NYPD can go back to policing protests with as much violent speech suppression as it likes without worrying about violating the settlement terms.
And unlike the stop-and-frisk consent decree which keeps the NYPD answerable to a federal court until it's in substantial compliance with the terms, that's not the case in yesterday's protest settlement. When the four-year clock on the settlement runs out, so does the court's and the plaintiff's leverage, whether or not the NYPD has cleaned up its act.
At the heart of the settlement is a new tiered structure the NYPD will use when deploying police to a protest. The upshot of the system is that police must respond proportionally to protests, rather than greeting small groups with overwhelming ranks of cops with helmets and bats. Each decision to escalate the police response to a higher tier must be authorized by senior officers, including a newly created "First Amendment Activity Executive." These decisions, along with others, like the issuance of dispersal orders, must be documented and accompanied by written justifications.
"As we saw during the 2020 protests, the policy was often to just surround the protests with police officers, in a way that escalated tensions," said Molly Biklen, deputy legal director of the New York Civil Liberties Union, which represented some of the plaintiffs in the protest lawsuits. "This settlement changes that. No longer is the default that the NYPD will automatically send out lots of police officers. Instead, the default is, very few police officers will go to protests, and the increase in officers will reflect graduated facts on the ground."
The settlement also attempts to curb the rampant and unaccountable arrest of protesters on minor offenses. It creates a category of "red light" offenses, including common protest charges like disorderly conduct, non-violent obstruction of governmental administration, unlawful assembly, criminal mischief, and walking in the roadway, for which officers need the sign-off of a captain or an office of a more senior rank to make an arrest.
Under the settlement, the NYPD can't use helicopters "with the intent of intimidation." It agrees not to surround groups of people and prevent them from moving, as it did at the notorious Mott Haven kettle, unless it has probable cause to arrest each of them.
Much of the initial furor over the NYPD's treatment of the 2020 protests centered around its violence—specifically, its use of pepper spray, baton blows, and bicycles as weapons against protesters. The settlement's provisions around these police weapons are not particularly sweeping. The section on pepper spray recommits the NYPD to its current policy. As for batons, "Police officers shall avoid intentional strikes to the head," under the settlement, unless the police judge it's necessary to prevent a death or serious bodily injury. Police bicycles "shall continue to be used in accordance with the operative training for crowd management and crowd control," training which presumably governed the police in 2020, when they used bicycles as battering rams to push crowds of protesters.
Another issue addressed, sort of, is the NYPD's longstanding practice of holding protesters arrested on extremely minor charges—that in any other circumstance would simply warrant the issuance of a ticket—for long periods of time, and transporting them, often across the city, to "mass arrest processing centers," turning a jaywalking ticket into a harrowing 24-hour tour of police vans and crowded holding cells.
Does the settlement require the NYPD to treat people exercising their right to protest the way it does everyone else, issue them tickets when warranted, and let them go on their way? It does not. The settlement does, however, say that if you are accused of jaywalking at a protest, the NYPD can only keep you in handcuffs for seven and a half hours.
Another longstanding issue across decades of NYPD protest policing is its policy of assigning arrested protesters to a nominal "arresting officer" who neither arrested the person nor witnessed the supposedly arrestable offense. This settlement does nothing to change NYPD practice.
This new regime and the commitments the NYPD is undertaking to resolve the lawsuits won't be presided over by a court-appointed monitor, as many consent decrees are. Instead, after a period in which the NYPD will retrain officers and promulgate new policies, representatives of the plaintiffs and the NYPD will meet in a "Collaborative Review Committee" chaired by the head of the City's own Department of Investigation. The DOI's status as an impartial arbiter is complicated. On the one hand, it is tasked by charter with independently investigating the NYPD. On the other hand, it is a City agency like the NYPD, its head appointed by the mayor. Both sides of the settlement expressed confidence in the DOI's independence. The Collaborative Committee will review the NYPD's response to select protests, and while much of the proceedings of the committee will be subject to the court's confidentiality agreements, the Committee's reports will be public. If representatives of the plaintiffs feel the NYPD isn't living up to their end of the bargain, they can try to resolve it through the Committee and the DOI. If that doesn't work, they can always go back to court—for a time, that is. The committee will meet for three years. A year after it issues its final report, the duration of the settlement ends, and with it the court's power to make the NYPD live up to its commitments.
Given its various shortcomings, why did the plaintiffs in these cases take this deal? Presumably because they judged that it was the best they could get. Both the NYPD and lawyers for the protesters knew that the alternative to a negotiated settlement was a trial in front of Judge Colleen McMahon, whose announcement early in the litigation that she intended to put the extremely complex and discovery-heavy case on a "rocket docket," initially setting a schedule that could have resolved the cases in a mere eight months, by November of 2021, did not bode particularly well for the chances of getting lengthy and detailed reforms ordered at trial.
And there are promising elements to the settlement. For one thing, it forces the NYPD to document its decisions about how it polices protests—documentation that has often been hard to come by in recent lawsuits and investigations of NYPD policing of protests. The NYPD used to produce after-action reports reviewing its handling of mass protests, but after those reports were used against it in the litigation arising from the 2004 Republican National Convention protests, it claimed to have stopped doing so.
That documentation will be useful the next time (and there will certainly be a next time) the NYPD is sued over its handling of protests. And while the NYPD might backslide after it's no longer bound to abide by the terms of the settlement, the existence of a four-year period in which the NYPD was compelled to be more accountable for its policing of people's First Amendment rights could serve as a useful reference point in the future.
Elena Cohen, a lawyer representing some of the plaintiffs in the settlement negotiations, expressed cautious hopefulness that the settlement will materially change how the NYPD approaches protesters in the future.
"We have shared principles that have been turned into language," Cohen said. "What I hope we see is these things happening on the street at protests: less time in custody, less violence. We have set up a framework where that is possible. We'll see how it goes."
