NYC Police Union Can't 'Veto' NYPD Protest Deal, Judge Says

By Marco Poggio | February 8, 2024, 6:01 PM EST ·

A federal judge on Wednesday shot down a bid by New York City's largest police union to block a sweeping reform of police protocols for handling protests, saying the union could not torpedo a settlement that ended a high-profile, sprawling legal case arising out of the 2020 demonstrations against police brutality.

Giving final approval of the settlement, U.S. District Judge Colleen McMahon for the Southern District of New York said in an order that nothing gives the Police Benevolent Association of the City of New York "an absolute right to veto the settlement" reached in September.

Under the settlement, which ends a consolidated case that included a suit filed by the state attorney general, the New York Police Department will be required to use de-escalation techniques and a four-tier system to determine the appropriate level of police presence and use of force at protests, depending on their size and scale.

While two other unions, the Sergeants Benevolent Association and the Detectives' Endowment Association, agreed on the settlement terms, the PBA opposed it, saying the tier system is overly bureaucratized and restricts officers' ability to respond effectively to volatile situations.

"I beg to differ," Judge McMahon said in her order. "This provision leaves ample room for officers to make judgment calls in real time."

In its filings opposing the settlement, the PBA argued the settlement would endanger officers and lead police to lose control of crowds — and overall harm the public interest.

"There is simply no evidence, let alone substantial evidence, that the public interest would be disserved if the settlement were approved," the judge said.

The New York Civil Liberties Union and The Legal Aid Society, which represented protesters that became plaintiffs in the case, hailed the ruling as a victory and called the settlement "commonsense" in a joint statement.

"We know the NYPD cannot police itself, and we won't let the PBA destroy a commonsense settlement to address the violence and reckless over-policing New Yorkers experienced firsthand when standing up for Black lives in the summer of 2020," the statements said. "We look forward to seeing these reforms unfold and will hold both the City and the NYPD accountable if its officers fail to implement these new and needed practices."

PBA President Patrick Hendry said in a statement to reporters that the settlement will limit the Police Department's ability to maintain order during demonstrations when they get out of control.

"If the NYPD is unable to prevent future demonstrations from devolving into chaos, the parties who signed onto this settlement must bear the blame," Hendry said. "The next time a peaceful protest is hijacked by rioters, the next time our roads, bridges or subways are shut down by agitators, New Yorkers should remember that their city chose to encourage these disruptions by signing onto this misguided settlement."

Under the terms of the settlement, police response to a protest must start presumptively at Tier One, which allows for the "temporary" presence of peaceful protesters passing through the streets or sidewalks. Only NYPD Community Affairs protest liaisons can be deployed "unless thresholds for another tier apply and/or protesters specifically request the presence of officers."

Tier Two requires the reasonable belief that certain crimes are "imminent." Tier Three requires crimes to be occurring, giving officers reasonable cause to make arrests. Tier Four is activated to end a protest when the three previous approaches have failed.

John Driscoll, an attorney and former NYPD captain who served as president of the NYPD Captains Endowment Association and now teaches at John Jay College of Criminal Justice, told Law360 the tiered approach could leave police officers unable to control demonstrations that turn violent or destructive quickly.

"It may look like it's Tier One, and it might shoot to Tier Four very quickly," he said. "And then what do you do? Then you're playing catch-up. And it's hard to play catch-up."

At a hearing before Judge McMahon last week, an attorney for the union argued the tiered response structure is too rigid and impractical to be used in addressing the fast-shifting environments that protests sometimes present.

Attorneys for the plaintiffs and the city responded that the NYPD has flexibility to move to any tier when the incident commander reasonably believes there is a threat of violence. They also claimed the NYPD has discretion to start at an elevated tier, if police believe there is going to be "cause for concern at a protest."

"The city and plaintiffs now claim that the settlement agreement does not mean what it says — that the NYPD actually has additional flexibility to protect police officers and the public, including by starting a protest response at a higher tier," Hendry said. "We will take them at their word and hold them to it."

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.

--Editing by Amy French.

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