The agreement should reduce NYPD presence at protests, but community pressure is essential.
By Molly Biklen and Daniel Lambright
The NYCLU, the Legal Aid Society and New York Attorney General Letitia James announced a sweeping settlement agreement last week that could help transform the way the NYPD polices protests. The agreement is the result of several lawsuits filed after the NYPD brutalized and violated the rights of numerous demonstrators during the George Floyd Protests in 2020.
The settlement – which the court must still approve, and is being challenged by the police officers’ union – is designed to reduce the deployment of police officers at protests and to limit which officers can police most protests. There are also safeguards built in to help hold the NYPD accountable if and when the department doesn’t comply. The agreement is a significant step in the right direction, but it won’t solve all the issues with policing at protests. Ultimately, how effective the settlement is will depend in part on forces outside the agreement itself.
How the Settlement Works
The settlement is designed, first and foremost, to reduce the presence of police at protests. It does this through a tiered system that dictates when, how many, and which kinds of officers can be sent to protests. This is critical because large numbers of officers at protests escalate tensions and increase the chances of violence and false arrests.
Importantly, the NYPD will only be allowed to deploy its notoriously brutal Strategic Response Group (SRG) under certain conditions. This should further cut down on misconduct, violence, and unjustified detentions.
There are several safeguards designed to ensure the NYPD follows the requirements of the settlement.
A new collaborative oversight committee will review the NYPD’s response to public demonstrations over a three-year period. The NYPD must also create a new First Amendment Activity (FAA) Senior Executive to oversee the department’s response to all public demonstrations. The FAA Senior Executive will be responsible for overseeing and developing all policies, procedures, and police officer trainings required under the agreement. This position will also be responsible for authorizing the use of the SRG and issuing dispersal orders.
It is more than fair to be skeptical that a person within the department will be able to hold officers accountable when so much of what we know about policing is that departments can’t police themselves. But having someone within the department in this role – who must be accountable when the NYPD escalates its response – has advantages.
Unlike in 2020 when it was difficult to determine which higher-ranking officers were responsible for abuses and false arrests, this settlement centralizes that authority with the FAA Senior Executive and identifies who is responsible for approving certain forms of escalation.
The FAA Senior Executive will also have to create a paper trail. They must explain why more police were called to the scene of a protest, what they did, and why.
If the NYPD fails to follow the requirements of the settlement, the NYCLU and other plaintiffs can go back to the court and ask a judge to force the NYPD to comply. The judge can issue an order specifying what the NYPD must do to come into compliance.
A Historic Example that Gives Us Hope
The fact that the City and the NYPD have signed off on this agreement provides reason to believe there’s political will at the top to follow its requirements. But we know from our own experience that the department is not afraid to act as though it’s above the law. Holding the NYPD to the agreement will be difficult, but there are encouraging examples of lawsuits resulting in meaningful shifts in the department’s behavior.
After several lawsuits including one by the NYCLU, in 2013 a federal court ruled that the NYPD’s stop-and-frisk policy was unconstitutional and ordered the NYPD to make various policy changes.
The year prior to the court’s ruling, the department conducted more than 500,000 stops of mostly Black New Yorkers. The vast majority of the stops did not lead to the recovery of weapons or any charges.
Immediately after the ruling, stops plummeted. While the number of stops has increased under Mayor Eric Adams, and while significant racial disparities in who is stopped persist, the number of stops is still far lower today than it was in 2013.
The stop-and-frisk litigation settlement didn’t end the practice entirely, but there has been a drastic draw down. The litigation played a critical role in ensuring thousands fewer Black and Brown men are now subjected to dehumanizing behavior at the hands of the police department, even as continued oversight is necessary to make sure the NYPD does not backslide.
Lawyers can’t take all the credit for the massive reduction in stops. Community involvement, activism, and pressure was critical to holding the department and policy makers accountable. Stop-and-frisk was widely criticized by advocates, watchdogs, and a large portion of the City Council, and thousands protested and marched against the practice.
As a result, mayoral candidates in the 2012 Democratic primary fought over who disliked the practice most. Then Public Advocate Bill de Blasio used his opposition to the stop-and-frisk to win the mayorship, and amidst public pressure to follow through on his promises, de Blasio succeeded further reducing the practice. It is not without irony that it was Mayor de Blasio who later oversaw the NYPD’s unconstitutional response to the 2020 protests.
A similar level of community pressure, political buy-in, and popular support will be critical to ensure our protest settlement is the strongest it can be.
Litigation is Just One Tool
As with stop-and-frisk, it will take more than a lawsuit to end NYPD abuse at protests. As much as ever, activists, community advocates, watchdogs, and elected officials must continue the struggle to transform policing.
Our settlement team will work tirelessly to hold the NYPD’s feet to the fire. We will also have NYCLU protest monitors providing on-the-ground information about what officers are up to.
While the settlement should reduce the role the Strategic Response Group plays in protests, we know that the only way to put an end to the SRG’s abuse is to put an end to the unit itself. We will continue to fight to disband the SRG and reinvest its estimated $133 Million in funds into our communities.
We also know that one of the best ways to reduce the harms of policing is to get officers out of situations where they don’t belong.
We support legislation that would get police officers across the state out of the business of responding to mental health emergencies instead of better suited professionals. We have repeatedly raised the alarm about the NYPD’s efforts to police the city’s homeless crisis. And for decades, we have fought to keep police officers out student discipline.
Just as they once challenged the reforms to stop-and-frisk, the Police Benevolent Association – the union for rank-and-file officers – is now challenging our settlement in this case. This is a blatant attempt by the PBA to try to thwart the will of New Yorkers, the Mayor and even the NYPD.
The court has ordered a briefing schedule to hear arguments from both sides and a status conference for early November. At least until then, the settlement is on hold.
Once the settlement is approved, the tiered response system will be a huge move towards reducing NYPD abuses against New Yorkers who speak out. But it is just one arrow in the quiver. To those who are skeptical about whether the NYPD will follow the settlement’s stipulations, we share your concerns. We need your help to hold the NYPD accountable by being the eyes and hears on the ground and letting us know if you observe violations of the settlement agreement while protesting.
This settlement is just one more way we are fighting to limit the harms of policing while ultimately pushing to transform it.
Molly Biklen, Deputy Legal Director, Legal
Daniel Lambright, Special Counsel for Criminal Justice Litigation, Legal
