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Judge Reverses Course on 2020 Protest Settlement Because Police Union Doesn’t Like It

The lawyer for the police union is the judge's long-time friend with whom she co-hosts a Super Bowl party, and also Ben Smith's dad.

3:40 PM EDT on September 11, 2023

A crowd of NYPD officers milling about
(Flickr / Andrew)|

A crowd of NYPD officers in midtown early in the 2020 protests.

Last week, the last of the big lawsuits arising from the NYPD's violent suppression of protests during the summer of 2020 resolved with a settlement. Lawyers for protesters hailed the deal as a momentous win, while the NYPD and mayor treated it as a mere affirmation of all the good work the police have always been doing.

Either way, the agreement, and Judge Colleen McMahon's court order endorsing it as approved and final, marked the end of years of contentious litigation that saw everything from a police lawyer caught forging court documents to record-setting payouts for protesters caught in the notorious Mott Haven Kettle.

Except it wasn't the end. 

On Friday, in a surprise reversal, McMahon vacated her approval of the settlement from the day before, because the city's biggest police union opposes it. While the Sergeants Benevolent Association and the Detectives' Endowment Association both signed on to the proposed settlement, the Police Benevolent Association, which was also invited to the settlement negotiations, did not.

In a statement released last week, PBA President Patrick Hendry warned that the reform measures spelled out in the settlement could "serve to encourage future violence," that the coordinating council established by the settlement under the leadership of the City's Department of Investigation to review how the NYPD handles protests would "enrich anti-police advocates," and that the settlement will expose more police who have done nothing wrong to discipline. "The individuals and groups responsible for the 2020 violence and destruction will surely view this agreement as a green light to create more of the same," Hendry wrote.

The New York Civil Liberties Union and the Legal Aid Society argued that the PBA's opposition to the settlement shouldn't prevent it from going forward, since it's not a party to the deal and hasn't even asserted any claims in the cases, but McMahon disagreed.

Why is the PBA, a notorious obstacle to police reform, in a position to have any say on an agreement between the NYPD and lawyers representing protesters in the first place? Judge McMahon initially rejected the police unions' efforts to involve themselves in the consolidated protest cases, noting that whatever collective bargaining rights the PBA might want to protect, they certainly don't include violating protesters' constitutional rights. But in a controversial ruling, the Second Circuit Court of Appeals overturned her decision, finding that the unions do have a legitimate interest in protecting officers' safety, and that to protect that interest, they should be allowed to intervene in the court cases concerning how the NYPD polices protests.

Whether the unions' involvement in those cases extends to the ability to veto an agreement between the other parties is not explicitly spelled out in the appeals court ruling, but McMahon, in her own ruling Friday, wrote that she would "allow the PBA to attack the settlement—it was for that very reason that the Second Circuit directed me to allow the police unions to intervene in these matters."

The PBA and New York City Law Department did not respond to a request for comment.

A further wrinkle to McMahon's reversal Friday is that the lawyer representing the PBA is Robert S. Smith, McMahon's former law partner and friend of nearly 50 years. Nevertheless, McMahon says she wasn't aware that Smith (a former judge, whom McMahon continues to address by that title) was even working on the case before her, until she read his letter asking her to set aside the settlement Friday. In the two and a half years since Smith filed his notice of appearance on the case before McMahon, she writes, "Judge Smith and I have co-hosted an annual Super Bowl party (we have watched the Super Bowl together, along with an ever-expanding group of friends and acquaintances, almost every year since 1977.)" Also, Smith is Ben Smith's dad. "Last spring, I attended a book party at the Judge's home, to mark the launch of his son Ben's book 'Traffic'," she writes in her order.

McMahon doesn't believe that Smith's work on the case before her warrants her recusal from the case, she writes in her ruling, but she notes the relationship "in case anyone thinks otherwise."

Under McMahon's new order, the PBA's final arguments against the settlement are due October 31.

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