New York City will pay $13.7 million to resolve a lawsuit brought by protesters arrested at 18 different actions during the first week of the 2020 George Floyd protests, in what the plaintiffs' attorneys say is the largest class-action settlement resulting from police abuse of protesters engaged in constitutionally protected First Amendment activity in history. Under the terms of the settlement, which was announced late Wednesday night, as many as 1,380 protesters will each receive $9,950, and the City will pay millions more in attorneys fees.
The class-action suit alleged that New York City and its police department deliberately used violence against protesters exercising their constitutional right to protest, in order to demoralize and discourage those protesters. The suit did not seek to directly compel the NYPD to do anything to change its practices. Other lawsuits brought against the City and the NYPD by the New York Attorney General, the New York Civil Liberties Union, and others, are still proceeding, and do seek to force a change in how the NYPD treats protesters.
Still, in a rational universe, one might expect that a payout of this size would push City leaders to reassess how the police department approaches large groups of people exercising their right to protest, if not because they care about people's constitutional rights, then at least because they'd like to avoid paying millions of dollars on a regular basis to clean up the NYPD's civil rights mess.
Unfortunately, the precedent set by similar lawsuits over the past 20 years and more suggests that's unlikely. This is hardly the first time New York City has paid out substantial sums to resolve lawsuits over the NYPD's violent and unlawful suppression of the protected speech of protesters. It did so after the Critical Mass bike protests of the mid-2000s, after the protests at the 2004 Republican National Convention, and after Occupy Wall Street, to name a few. The City spent millions fighting the resulting class-action lawsuits, and millions more to make them go away. But none of that money comes from the NYPD budget, and none of those lawsuits galvanized the City's political leadership to bring the police department under control.
Under the settlement, the City and the NYPD explicitly don't concede that there was anything legally wrong with how the NYPD treated protesters, writing that they "deny any and all liability and deny that they had or have a policy, or engaged in or currently engage in a pattern or practice, that deprived persons of their rights, privileges, or immunities secured or protected by the Constitution and laws of the United States and the State of New York." And just because the City is paying millions of dollars rather than let this case and the associated evidence see the inside of the courtroom, "this Stipulation does not, and shall not be deemed to, constitute an admission by Defendants as to the validity or accuracy of any of the allegations, assertions, or claims made by Plaintiffs."
We asked the City's Law Department a number of questions about the lawsuit, and the settlement. The department did not answer those questions, instead providing this statement: "The City and NYPD remain committed to ensuring the public is safe and people’s right to peaceful expression is protected. The NYPD has improved numerous practices to address the challenges it faced at protests during the pandemic. This settlement was in the best interests of all parties."
So what to make of a settlement in which taxpayers pay millions of dollars and protesters get significant individual payments, but the NYPD admits no liability and pays no price, all at a time when the agency's budget is continuing to grow? Will this lawsuit and settlement change anything?
The protesters who are named plaintiffs in the class-action lawsuit don't disguise their ambivalence about this settlement. "Ten thousand dollars is a lot of money to a lot of people, and could really be a life-changing gift from the sky," Savitri Durkee, an activist and actor, told Hell Gate. "But it doesn't in any way cover the harm. Some of those protests were really scary, really terrible." Durkee was caught in the notorious Mott Haven kettle on June 4, 2020 (already the subject of its own multimillion-dollar settlement), in which police trapped hundreds of protesters, prevented them from leaving until after the curfew then in place, before violently arrested everybody—protesters, legal observers, and passersby—for violating the curfew. She was trapped so tightly in the kettle that she couldn't move her arms, until a police officer grabbed her from behind and threw her on the ground on top of other women, yelling, "Shut the fuck up, shut the fuck up," according to the lawsuit. Police grabbed her by the hair and pulled her mask down, jabbing a knee or baton into her back. She was arrested and spent hours locked up in Queens, only to be finally released with a summons that was later dismissed.
Still, Durkee said, even if the NYPD doesn't admit it, the settlement does serve to validate that constitutional rights count for something. "It does shore up some kind of protection for First Amendment activity," she said. "It says protest matters, protest is legally protected."
Durkee added, "The urgent need for protest is only going to grow. We know this, because of climate change. We knew this because of the trends we see in policing, the trends we see on the right, reproductive rights. So there have to be a lot more protesters, and those protesters have to be allowed to protest."
Dara Pluchino, a social worker and another named plaintiff in the suit, noted that the size of the settlement also brings the media's attention, which has wandered away from the violence of policing in recent years, back to the core issue that animated the protests in the first place. "It's an opportunity to provide the visual evidence. We've seen time and time again and it shouldn't be necessary, but it is, for some people, to open their eyes."
As in previous cases, the NYPD and the Law Department fought hard to avoid turning over much of the information that plaintiffs in the consolidated protest cases requested during the discovery process, and were repeatedly sanctioned by the judge overseeing the case for delaying turning over evidence.
In the course of the litigation, as Hell Gate was the first to report, the top City attorney representing the NYPD, Dara Weiss, was discovered to have forged documents and lied to the federal magistrate judge on the case. When this was brought to the court's attention, Weiss was fired. (The Law Department didn't answer our questions about Weiss, or the status of the investigation into her conduct.)
Nevertheless, plaintiffs did receive an enormous amount of evidence from the NYPD, albeit much of it in the form of disorganized haystacks from which extracting a needle of useful information was difficult. Video alone amounted to some 6,300 individual pieces of footage. The plaintiffs hired SITU, a firm that specializes in marshaling large volumes of evidence in human rights cases, to help organize the video evidence. The NYPD had turned over aerial as well as body-worn camera footage, but not the metadata that would allow those videos to be searched by date or location, SITU Director Brad Samuels told Hell Gate. SITU had to write code to optically scan each video for timestamps and other organizing information.
In service of their case, SITU and the protesters' lawyers were looking especially for evidence of several specific types of police abuses, including cops hitting people with batons; subjecting them to pepper spray; more general use of violent force, and the specific tactic of "kettling," in which protesters are trapped between walls of police officers. In addition, they were looking for examples of the NYPD practice of assigning "arresting officers" who had nothing to do with the arrest of a given protester, providing those officers with an NYPD lawyer-scripted account to swear to in official documents.
With this settlement, there's a good chance that the overwhelming majority of the evidence of violent police suppression of protests three years ago will remain sealed, and therefore, secret from the public. But in announcing the settlement, the plaintiffs released several videos assembling some of the evidence they found of each of these types of police misconduct.
We're publishing those videos here. (Fair warning to people who lived through the police response to the 2020 protests, or any other instance of police violence, that these videos do not make for comfortable watching. And the YouTube robots have put age-restrictions on some of these videos, which are meant to only be watched by those who are 18 years old and above.)
The first video summarizes the evidence and how it was collected and organized:
One video catalogs police laying batons onto protesters.
Another collects police use of pepper spray against crowds and individual protesters and bystanders.
Another longer video assembles instances of general police violence against protesters.
Finally, a fifth video collects footage that shows officers engaged in arrest hand-offs, with senior police officers directing officers with no knowledge of an arrest to take responsibility as the arresting officer, even though they have no knowledge of the circumstances that led to the arrest.
Taken together, the videos are reminder of how violent the police suppression of the 2020 protests were, and how disturbing and traumatic that suppression was for people who tried to make their voices heard in the street.
Pluchino, the social worker, was also at Mott Haven, and remembers how traumatic it was. But it was also inspirational, she said. "The man next to me, he was a younger Black man, and he was talking to the people around him, saying, 'This is what freedom feels like,'" Pluchino said. "I thought that this was both so heart-wrenching, and so powerful. We're all in this together, we're fighting, we're sticking up for what's right. This shouldn't be what needs to happen for us to get to where we deserve to be, but if this is what it takes in the process, then so be it, because it's worth it."
