Major Settlement Aims To Change NYPD's Protest Response

By Marco Poggio | September 5, 2023, 4:20 PM EDT ·

The New York Police Department on Tuesday has agreed to change its use of force policies in responding to protests as part of a settlement that will require it to use deescalation techniques and adopt a more nuanced approach to crowd control, according to papers filed in federal court.

As part of the settlement agreement, which ends several lawsuits alleging wrongful arrests and excessive use of force during the 2020 George Floyd protests, the NYPD agreed to adopt a four-tier system to determine the appropriate level of police presence and type of response at a protest, depending on its size and scale. Officers will be required to deescalate situations before increasing their response, according to the agreement.

The settlement mandates that the Police Department create a new senior-level role to oversee all protest-related activities and the training of officers on the new practices. It also agreed to stop using a crowd-control technique known as "kettling," which involves trapping people on city blocks and preventing them from leaving during a mass arrest.

In addition, the city has agreed to create an oversight committee that will review NYPD's response to protests over a multi-year period. The city will disburse $1.6 million to the New York City Department of Investigation and $1.45 million to support plaintiffs' work as part of the committee's tasks.

At a press conference at the NYPD's headquarters in Lower Manhattan, Mayor Eric Adams said the agreement tries to strike a balance between the safety of the public and police officers, and the right to protest.

"The right to peaceful protest is a fundamental part of American freedom," he said. "This agreement is the result of a collaborative process that seeks to build consensus, balance safety with justice, and protect protesters, bystanders and law enforcement personnel."

Under the four-tier system, the NYPD will be allowed to boost its presence and response when protesters block major traffic arteries or engage in unlawful conduct.

At Tier One, the NYPD will "temporarily" accommodate peaceful protests passing through the streets or sidewalks. Tier Two will be used when police suspect that illegal activity may be about to occur or that the protest is going to block critical infrastructure. In that scenario, the department is allowed to deploy officers from its Strategic Response Group, which was singled out as responsible for the brutality alleged in the suits.

Tier Three, meanwhile, is triggered when there is probable cause that one or more protesters committed a crime. The department will deploy enough officers to deal with the individuals believed to have broken the law.

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

As part of its use of force overhaul, police will be allowed to only encircle individuals within a crowd who are the target of a particular arrest, and they will have to allow others to leave the encirclement. In addition, the NYPD cannot deploy helicopters to intimidate or disperse people engaging in a lawful protest.

The agreement, which awaits the signature of U.S. District Judge Colleen McMahon, ended four civil rights lawsuits, including one filed by the New York attorney general in 2021 alleging that the NYPD had used excessive force in dealing with peaceful protesters.

The Legal Aid Society of New York and the New York Civil Liberties Union sued in October 2020. Other lawsuits included Rolon v. City of New York, which alleged the police's brutal response to private citizens and was filed by the Aboushi Law Firm PLLC and Cohen & Green PLLC, and Gray v. City of New York, which was brought on behalf of the members of the press by the National Press Photographers Association in partnership with Davis Wright Tremaine LLP and noted civil rights lawyer Wylie Stecklow. Under the agreement, the NYPD cannot arrest members of the press solely for observing or recording police activity in a public place.

Tuesday's deal comes on the heels of other settlements concerning the NYPD's response to the 2020 protests, including one in July that resulted in one of the highest payouts ever recorded.

As part of the large legal case, plaintiffs claimed they were violently arrested by cops, hit with batons, tackled to the ground and splashed in the eyes with pepper spray.

"The right to peacefully assemble and protest is sacrosanct and foundational to our democracy. Too often peaceful protesters have been met with force that has harmed innocent New Yorkers simply trying to exercise their rights," New York Attorney General Letitia James said in a statement Tuesday. "Today's agreement will meaningfully change how the NYPD engages with and responds to public demonstrations in New York City.

In a stipulation from the settlement, the NYPD denied the claims in the suits.

"During the summer of 2020, the frustrations of a global pandemic, a tragic killing, and the use of spontaneous demonstrations throughout the city drew people from all over the country — some with good intentions and some with bad," NYPD Commissioner Edward A. Caban said at the press conference. "This presented many unique challenges for officers, who did their best to protect people's rights to peaceful expression while addressing acts of lawlessness. Now, the NYPD has reenvisioned its policies for policing protests to deal with these unique scenarios.

Corey Stoughton, the attorney-in-charge of the criminal defense special litigation unit at the Legal Aid Society, said in a statement that the settlement represents a "novel approach" that seeks to avoid the type of crackdown on protests that occurred in 2020, which stained the legacy of then-Mayor Bill de Blasio.

"We look forward to seeing these reforms unfold and will hold both the city and the NYPD accountable should the department and individual officers fail to adhere to these new and needed practices," Stoughton said.

Molly Biklen, deputy legal director of the New York Civil Liberties Union, called the settlement a "landmark" case that will help bring accountability to the way the police confront public demonstrations.

"The NYPD's violent response to protestors during the 2020 demonstrations for Black lives made clear to the world what too many New Yorkers already knew: that the NYPD is unable or unwilling to police itself," she said in a statement. "Today's settlement ensures the NYPD can no longer indiscriminately deploy the notorious Strategic Response Group to protest and no longer escalate force on a whim."

--Editing by Adam LoBelia.

Update: This story has been updated with more counsel information.

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