NYC's Biggest Police Union Has Made a Huge Mess of the 2020 Protest Settlement - Hell Gate

[Gunnar Larson]

https://hellgatenyc.com/the-pba-makes-a-mess-of-the-2020-protest-settlement?utm_source=sfmc&utm_medium=nypr-email&utm_campaign=Newsletter+-+Early+Addition+-+20240129&utm_term=how+officers+can+respond+to+protests&utm_id=298759&sfmc_id=54485365&utm_content=2024129&nypr_member=Unknown

It's been almost five months since New York City agreed to overhaul the way
the NYPD polices protests as part of the settlement
<https://hellgatenyc.com/nypd-protest-settlement-underwhelming> of a raft
of class-action lawsuits brought in the wake of the George Floyd protests
of 2020. But the settlement still hasn't been finalized because the city's
largest police union doesn't like it.

On Monday, Federal Judge Colleen McMahon will hear oral arguments on
whether the Police Benevolent Association should be allowed to scuttle the
settlement, even though it's neither the party being sued (that's the City
of New York) nor one of the parties doing the suing (protesters subjected
to the NYPD's heavy-handed response, as well as the New York Attorney
General).

Under the settlement, the NYPD committed to a number of reforms of how it
reacts to people exercising their right to protest. Where in the past the
NYPD has often responded even to small, nonviolent demonstrations with
disproportionately large and menacing numbers of police equipped in riot
gear, under the settlement the department agreed to a tiered and
proportional response, in which police present a light footprint at
protests, escalating if necessary as specified conditions are met. Where
the NYPD had a history of arresting protesters en masse
<https://www.nytimes.com/2012/10/02/nyregion/protesters-arrests-during-2004-gop-convention-are-ruled-illegal.html>,
often on rinky-dink charges like "walking in the roadway
<https://hrp.law.harvard.edu/wp-content/uploads/2013/06/suppressing-protest-2.pdf#page=128>,"
the department now agreed that officers would need permission from
higher-ups before making such low-level arrests.

While the settlement is far from perfect—it does little to change how the
NYPD uses violent force against protesters, and after a four-year
implementation period, there's no legal mechanism to prevent the NYPD from
backsliding—it represents significant progress from the violent abuses
<https://hellgatenyc.com/nypd-mott-haven-protest-settlement> on display
during the 2020 protests. Or it will, if it's ever actually adopted.

Most immediately, Monday's hearing could determine whether the historic
settlement, and the reforms it imposes on the NYPD's treatment of people
exercising their constitutional right to protest, goes into effect. More
generally, the current legal battle raises a host of messy questions about
how lawsuits get settled and who can stop them from getting settled.

When the police unions sought to intervene in the class action suits back
in 2021, McMahon denied their request. If the NYPD was engaged in
unconstitutional police practices, she wrote, the union doesn't have a
legal right to preserve those unconstitutional practices. But the unions
appealed, and McMahon was overruled
<https://storage.courtlistener.com/recap/gov.uscourts.nysd.552671/gov.uscourts.nysd.552671.128.0.pdf>
by
a panel of the Second Circuit Court of Appeals, which accepted the unions'
argument that because changes to NYPD policy that might arise from the
lawsuits could affect the personal safety of the police officers in the
unions, they should be allowed to participate in the lawsuit and have a
say.

This was, to put it mildly, a somewhat wild precedent to set. Police unions
in this country are singularly revanchist political formations that
consistently resist even the most common-sense police reforms. If they are
entitled to have a say in every lawsuit about unconstitutional police
abuses, it would significantly complicate the way civil rights litigation
has historically nudged police departments to respect civil rights.

Nevertheless, the unions were allowed to intervene in the lawsuits. Once
admitted to the litigation, they did very little. They didn't file any
claims against anybody or depose any witnesses, but they sat in on many of
the negotiations between the plaintiff's lawyers and the City's lawyers.
When the settlement was announced, two of the police unions who
intervened—the Sergeants Benevolent Association and the Detectives
Endowment Association—signed on to it. But the Police Benevolent
Association, which represents rank-and-file cops, did not. When Judge
McMahon approved the settlement, the PBA, represented by her longtime
friend, colleague, and Super Bowl party co-host (and journalist Ben Smith's
dad) Robert Smith, objected because it hadn't signed off on the deal, and
McMahon reversed herself
<https://hellgatenyc.com/police-union-doesnt-like-2020-protest-settlement-so-judge-reverses-it>,
revoking her approval.

In the intervening months, the plaintiffs and the City, erstwhile
adversaries, filed papers arguing that since they are the real parties to
the lawsuit, and they want to settle, it would be absurd to make them go to
trial because the union, an intervener, isn't completely satisfied with the
agreement they've reached. The PBA, for its part, argued that since the
Second Circuit had allowed it to intervene in the suit in order to protect
its interest in officer safety, it's allowed to tank the settlement if it
thinks it will hurt officer safety. The plaintiffs and the City countered
that even if the PBA's safety concerns give it standing, it's wrong on the
facts: By implementing reforms calculated to minimize and de-escalate
protesters' conflicts with the police, they argued, the settlement will
make police safer, not less safe.

Both sides produced expert witnesses. The PBA tapped Louis Anemone, who
retired from the NYPD as Chief of Patrol in the last century, who argued
<https://storage.courtlistener.com/recap/gov.uscourts.nysd.546923/gov.uscourts.nysd.546923.1119.0.pdf>
that
safety is achieved by letting police make unfettered decisions about how
much force to show and when to arrest people. "Restraints on the personnel
allowed or when and who can effect arrests will create confusion and chaos
at the scene," he wrote. The plaintiffs produced expert testimony from
Hasan Aden, a federal police monitor and former Virginia police chief, who
argued
<https://storage.courtlistener.com/recap/gov.uscourts.nysd.546923/gov.uscourts.nysd.546923.1128.0.pdf>
that
police standards and best practices have evolved since Anemone's day, and
that it's now widely recognized that confronting non-violent crowds with
overwhelming force, far from settling situations and assuring officer
safety, actually tends to provoke greater levels of conflict.

Meanwhile, Mayor Eric Adams added to the confusion, telling a press
conference
<https://www.nyc.gov/office-of-the-mayor/news/990-23/transcript-mayor-adams-holds-in-person-media-availability>
in
December that even though the City had signed the settlement and was
fighting in court to implement it, he actually agreed with the PBA, which
was seeking to nullify it. "As soon as I read the settlement, I said, this
is a problem," Adams said. "You have to go by the advice of your attorneys,
but as soon as I read it… Anyone who polices this city should be concerned
about what's in the settlement."

The papers filed, more months went by, with no indication from Judge
McMahon on how she intended to resolve the dispute. Then, on Tuesday, she
abruptly scheduled oral arguments, giving the parties less than a week to
prepare.

Just what shape the hearing will take, and when and how McMahon will rule,
remains unclear. Regardless, it seems likely that whoever prevails, her
decision will be appealed to the Second Circuit. And given the appeals
panel's surprising ruling granting the unions intervenor status—the ruling
that created this mess in the first place—it's anyone's guess what will
happen there.

In the meantime, rolling protests over the bombing of civilians in Gaza
continue into their fourth month, and the NYPD is responding to them
<https://hellgatenyc.com/nypd-still-policing-protests-like-its-2020>,
unbound by any of the reforms it committed to in the still pending
settlement.

If you want to call in and listen to this court hearing of significant
public interest, too bad, you can't. Judge McMahon rejected a request to
make a dial-in line available for the hearing.
Already a user?Log in <https://hellgatenyc.com/login>
Thanks for reading!Give us your email address to keep reading two more
articles for free
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: text/html
Size: 12471 bytes
Desc: not available
URL: <https://lists.cpunks.org/pipermail/cypherpunks/attachments/20240129/693c04c5/attachment.txt>