Snapshot: Police Union Casts NYPD Protest Deal Into Doubt

By Marco Poggio | October 13, 2023, 8:32 PM EDT ·

Approval of a settlement that could significantly change the way the New York Police Department handles protests has been thrown into doubt after the city's largest police union filed objections in Manhattan federal court last week.

The settlement, which seeks to end a series of cases focusing on the NYPD's response to the 2020 citywide demonstrations following the murder of George Floyd, was hailed by police reform advocates as a major step forward in changing department protocols in light of mass arrests and other high-profile incidents that turned violent.

But on the day U.S. District Judge Colleen McMahon for the Southern District of New York put her signature on the deal, the Police Benevolent Association of the City of New York, which represents the bulk of the department's force, told the judge it was opposing it.

Under the settlement agreement, which was announced Sept. 5 and has the support of two other police unions, the NYPD would adopt a four-tier system to determine the appropriate response to protests, depending on their size and scale, with a requirement that officers try to deescalate situations before resorting to more extreme measures. It would also create a new senior position within the NYPD tasked with overseeing all protest-related activities and the training of officers on practices concerning demonstrations.

As part of its objections to the deal, the PBA said that the four-tier system is impractical and would put officers' safety at risk. The union argued that the new practices would limit officers' ability to respond effectively to demonstrations that quickly turn violent or destructive and that implementing and monitoring the changes would burden the court.

"The tiered response system is at odds with what we see on the ground during the hundreds of protests we police successfully every single year. It would prevent incident commanders from having enough police officers on hand to manage fluid, complex crowd dynamics. It would slow down decision-making in a rapidly changing environment and prevent police officers from taking action against criminal behavior," PBA President Patrick Hendry told Law360 in an email. "Ultimately, it puts police officers, civilian bystanders and even the protestors themselves at greater risk. That's why we are challenging the settlement."

Plaintiffs are expected to respond to the objections in early November, and a hearing is scheduled for Nov. 20.

Here, Law360 breaks down the case and main objections to the settlement.

The Consolidated Case

George Floyd's death at the hands of Minneapolis police officers in May 2020 produced a wave of protests that experts say was likely the largest in United States history.

Some of the largest demonstrations occurred in New York City, where thousands of people descended onto the streets for days and weeks to protest police brutality. The police's response to the protests came under fire for being excessive in both scale and use of force.

Hundreds of civil claims were brought against the city of New York over police actions in the months that followed Floyd's death. Seven lawsuits, including one filed by New York State Attorney General Letitia James, were consolidated for pretrial purposes before Judges McMahon and Gabriel W. Gorenstein.

The lead case, brought by protester Jarrett Payne and 10 other people arrested at demonstrations across the five boroughs, accused then-Mayor Bill de Blasio and the NYPD's leadership of condoning and even promoting that violence.

Calling the police's actions "unprovoked and legally unjustified," the suit said that police officers routinely trapped protesters into city blocks and prevented them from escaping while effectuating mass arrests, a long-used practice that has become known as "kettling."

The plaintiffs, represented by the New York Civil Liberties Union and the Legal Aid Society of New York, said people who were arrested were placed in tight plastic handcuffs that caused pain and bruising, and in some cases led to long-term injuries.

"These attacks were directed by NYPD supervising officers, including officers at the highest ranks of police leadership," the complaint says. "They were undertaken in retaliation for the protesters' message — calling for greater police accountability."

The city, meanwhile, countered that any use of force by police officers was "reasonable" and "justified," did not violate any rights, and to the extent it did, was protected by qualified immunity, a legal doctrine shielding law enforcement officials from civil liability for action taken while on duty.

In her own complaint, James sought an independent monitor to enforce reforms to how the NYPD responds to large-scale protests. She accused the NYPD of using "brutal force against protesters" and violating their rights with a "pattern of false arrests," and said her office identified 155 separate incidents of officers using excessive and unreasonable force against protesters.

Several suits in the consolidated case ended with settlements. One brought by a group of legal observers for the New York City chapter of the National Lawyers Guild arrested during the protests was resolved in July 2022 with a $49,000 collective payout and attorney fees.

In March, the city agreed to pay $21,500 to each of the nearly 320 protesters trapped by police in a Bronx block in one of the most criticized police crackdowns during the 2020 protests.

Then, in July, the city said it would pay about $13.7 million to settle a separate class action brought by protesters in January 2021. The deal includes what attorneys for the plaintiffs said would be one of the highest payout for protesters in a class action: $9,950 for each plaintiff.

The rest of the consolidated cases, meanwhile, continued amid intense negotiations until a deal was reached in September.

Police Benevolent Association's Intervention

In March 2021, the PBA asked the district court to intervene in the litigation, arguing it had an interest in the personal safety of its roughly 23,000 members — about 64% of the force — given possible changes to the rules of engagement with protesters.

Judge McMahon rejected the union's bid the following month, saying the PBA didn't have a say on claims dealing with the constitutionality of police practices.

But in March 2022, a three-judge panel for the U.S. Court of Appeals for the Second Circuit partially reversed Judge McMahon's denial, holding that the PBA had standing to intervene and weigh in on claims with respect to NYPD policies that could impact officers' safety.

Settlement negotiations began last summer and culminated with the Sept. 5 breakthrough.

Then, on the morning of Sept. 8, the day after she put her signature on the settlement agreement, Judge McMahon found a letter from the PBA on her desk. In it, retired state appellate Judge Robert J. Smith, a lawyer for the union, asked Judge McMahon to withdraw her approval of the deal and to allow the union to oppose it.

"Your Honor signed an order granting the motion today, perhaps in the belief that the settlement was adopted by all parties and the motion was unopposed, but that is not correct," Smith's letter said. "The PBA has made clear for several months that it does not agree to the proposed settlement, which, in the PBA's view, is contrary to the public interest and will create unacceptable safety risks to the PBA's members and to members of the public."

In an order issued that same day, Judge McMahon said she didn't know of the union's monthslong opposition to the settlement. She also didn't know of an email exchange between the PBA's lawyers and plaintiffs' counsel on the union's objections that took place the day after the agreement was sent to Judge McMahon for her approval.

"Neither Judge Smith nor any of the other attorneys involved in this matter bothered to let me know that any of this was happening," Judge McMahon said in the order. "Had someone done so, I would have stayed my hand."

"Obviously, I'm going to allow the PBA to attack the settlement," she continued, mentioning the Second Circuit's decision. "I'm not going to put myself in a position to be reversed on the PBA's right to as an intervenor a second time."

PBA's Objections to the Four-Tier System

The settlement agreement would dictate the NYPD's response to protests via a four-tiered system, with each tier marked by increasing levels of police deployment and use of force. It would also formally prohibit the department from kettling protesters.

At Tier One, officers would "temporarily" accommodate peaceful protests passing through the streets or sidewalks. At this stage, only specially trained "protest liaisons" officers and patrol officers directing traffic would be allowed to be at the scene.

When police suspect that illegal activity may be about to occur, or that the protest is going to block critical infrastructure, Tier Two kicks in. In that scenario, the department is allowed to deploy officers from its Strategic Response Group, which was singled out in the litigation as being responsible for violence against demonstrators. Under the tier's standards, however, officers would have to be stationed off-scene, and "if possible out of view of protesters."

Tier Three, meanwhile, would be triggered when there is probable cause that one or more protesters committed a crime. Under that scenario, the department would be able to deploy only enough officers necessary to deal with the individuals believed to have broken the law. Only at that time can the presence of cops be visible.

Tier Four would be activated to essentially end a protest, either when protesters try to enter or block entry to sensitive locations, or when deescalation has not worked to stop widespread violations of the law.

In an opposition memo filed on Oct. 6, the PBA called the tiered response structure "unreasonable and impractical" and the standards for each tier "confusing." It also argued that the settlement agreement would overburden the court with the task of monitoring its implementation for more than four years.

"The tier system puts unreasonable limits on police officers' ability to protect themselves and the public," the union said.

The union added that it would be difficult for commanders to communicate to line officers which tier they are supposed to be acting under at any given time. It also argued that the system would bureaucratize police response by requiring the officer in charge at the scene of a protest to get approval from a superior, who may or may not be on site, when deciding to move from Tier One to Tier Two.

"Requiring the ranking officer on scene to obtain approval from an off-site supervisor ... makes no more sense than requiring a homeowner who sees a fire flashing on the stove to hold off on deploying a fire extinguisher until he or she can get approval from the fire department," the union said. "The escalation that may happen during even a brief delay makes any such requirement extremely dangerous."

The consolidated case is In re: New York City Policing During Summer 2020 Demonstrations, case number 1:20-cv-08924, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Frank G. Runyeon. Editing by Jay Jackson Jr.

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