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Police Union’s Surprise Weapon in Its Legal Battle to Block Protest Policing Reform? The Mayor

The Police Benevolent Association pushback against the 2020 George Floyd protests settlement has its day in court.

SRG NYPD officers on bikes wait outside of a protest.
(Hell Gate)

The city's largest police union was in federal court on Monday to try to convince a judge to block police reforms meant to protect the civil rights of protesters that the NYPD has already agreed to implement. To make their case, the Police Benevolent Association hired Robert Smith, the former colleague and longtime Super Bowl party cohost of the judge who will be making the decision, Colleen McMahon. Compelling the police to escalate their response to protests only for documented and justifiable reasons is a bad idea, Smith said. What's more, he told the judge, New York's own mayor agrees with him.

The reforms the union objects to are part of a legal settlement the NYPD agreed to in order to resolve a gaggle of class action lawsuits brought by the New York attorney general and by protesters who were beaten, kettled, and unlawfully arrested by police during the 2020 George Floyd protests. As part of the settlement, the NYPD must, moving forward, respond proportionally and justifiably to protests—a small, peaceful protest, for example, should only warrant a small, peaceful deployment of officers, and not overwhelming ranks of armored Strategic Response Group cops wielding batons and pepper spray. If the department wishes to deploy more officers, it needs to have a good reason, approved by a designated official, that's documented and reviewable. When the settlement was announced last fall, City officials praised it, and two police unions, the Sergeants Benevolent Association and the Detective Endowment Association, signed on. 

But the PBA did not, and a few days after the settlement was made official, Smith persuaded Judge McMahon to revoke her sign-off of the settlement so the union could have an opportunity to argue that it shouldn't be approved. Why should a police union that isn't even a named party in the lawsuits have any say over an agreement between the City and the protesters? The union's argument, in court papers and in arguments on Monday, is that the union should be able to stop the deal because, by encouraging a lighter hand from the police, the settlement endangers police officer safety, which the union has a legally recognized interest in protecting.

At Monday's hearing, Smith tried early on to bring in Mayor Eric Adams's remarks from a December press conference, in which he said, "As soon as I read the settlement, I said, 'This is a problem'... Anyone who polices this city should be concerned about what's in the settlement."

McMahon wasn't interested. "The one thing I'm not interested in is politicians," she told Smith. "I would rather hear your actual arguments than get into what politicians have to say."

Smith moved on to his core argument, which is that imposing conditions to bring in more cops hamstrings the police. "The decision to bring a lot of police onto the scene at an early stage may have to be made almost instantaneously," he said. "The officer making the decision has to use his discretion…He has to use what is sometimes not much more than a gut feeling."

Judge McMahon pointed out that the decision to bring in more officers isn't made by members of the PBA, which represents line officers, not sergeants, detectives, or higher ranks who make deployment decisions. Indeed, the unions representing sergeants and detectives have signed on to the settlement. 

"The incident commander has to be able to say, 'I don't like the look of this crowd,'" Smith said. "He or she should be able to make the decision to have a significant number of police on the scene."

Smith's arguments amount to policy niggling, lawyers for the plaintiffs and the City countered, and even if the court were inclined to consider tanking the settlement over the union's policy quibbles, they said, the quibbles themselves are misinformed and unfounded. Corey Stoughton, one of the lawyers for the plaintiffs, noted that the settlement is structured to allow police to increase their presence as needed. And it doesn't inhibit cops' ability to react to fast-changing protest circumstances—deployment decisions are already made by senior officers. 

The settlement "does not add new bureaucracy that doesn't already exist, or inject new people in decisions that are already being made," Stoughton told the court. "It simply requires that people need to be clear who those people are, and that they be trained really well in best practices in the field, and that there will be accountability afterwards."

To allow the union to torpedo the settlement would lead to perverse results, Stoughton argued, giving the union power to force the original parties to go to trial when they both want to settle the lawsuit.

Pat Miller, head of the New York City Law Department's Special Federal Litigation unit, fought against the plaintiffs for more than two years, but made common cause with them on Monday in arguing that the settlement should be accepted. The City agreed to the settlement because the risks of a trial were too great, she said. The court monitor imposed on the NYPD over the department's racist stop-and-frisk regime in the last decade has already cost the City $34 million and counting. "This settlement averts that problem," Miller said.

Mayor Adams, for his part, seems content to let the PBA enlist him in its opposition to the settlement his administration signed. "We've seen people just really doing things that I think is an abuse of that decision," Adams said of the settlement  at a press conference the next day. "I'm going to let the [New York City Corporation Counsel] represent the City and do their thing, and if the PBA wants to use a quote of mine, my quotes are used often."

Judge McMahon told the court she intends to rule on the PBA's motion to scuttle the settlement by the end of next week. However she rules, it is likely that her decision will be appealed to the Second Circuit Court of Appeals. 

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