The NYPD’s largest police union urged a federal judge Monday to spike the city’s agreed-upon deal overhauling how the department handles protests, claiming it would cripple cops’ ability to use their “gut feelings” to protect New Yorkers when demonstrations turn rowdy.
But a civil rights lawyer countered that killing the settlement — which would end federal suits alleging that the NYPD used excessive force in responding to the 2020 George Floyd protests — at the Police Benevolent Association’s urging would give the powerful union unprecedented “veto power” over city policy.
The dueling statements came at a hearing in Manhattan federal court over whether US District Judge Colleen McMahon should scuttle a deal that the city and state reached with activists’ attorneys in September.
The deal calls for a new “four-tiered” strategy of dealing with protests, starting with a hands-off approach to “peaceful protests,” but still allowing the department to escalate its response if officers find a demonstration to be dangerous or illegal or if it blocks traffic arteries.
Still, forcing the NYPD to reach certain thresholds before calling in more officers to deal with demonstrations could slow down police response in cases where speed is essential, claimed Robert Smith, the PBA’s lawyer.
“It’s crazy to disable police officers from being there to deal with possible unpleasantness, or even worse than unpleasantness,” Smith argued. “You have to allow gut feelings and subjective judgments to play a role.”
Yet the court rejecting the deal “would give police unions veto power over policy decisions that they just don’t like,” plaintiff lawyer Corey Stoughton shot back during the 90-minute proceeding.
The PBA has not cited a single precedent of a federal court killing a police reform settlement because a police union objected to it, Stoughton added.
The city, state, and unions for New York city police sergeants and detectives have all signed onto the deal — though Mayor Eric Adams recently spoke out against it.
In September, Adams said that the deal was struck to “ensure that we are both protecting public safety and respecting protesters’ First Amendment rights.”
But the mayor changed his tune in December, calling the deal “troubling” and saying it has made officers “hesitant” when responding to large, out-of-control marches.
Adams’ comments came as the city was rocked with demonstrations criticizing Israel’s response to Hamas’ sickening sneak Oct. 7 attack on the country — some of which have sought to interrupt major events such as the Macy’s Thanksgiving Day Parade and the annual tree lighting ceremony at the Rockefeller Center.
Judge McMahon indicated Monday that she won’t be putting much weight on Adams’ comments when making her ruling, set for early to mid February.
“The one thing I’m not interested in is politicians,” the jurist quipped.
City lawyer Patricia Miller also spoke Monday in defense of the deal, calling it a “pretty darn good settlement” that balances First Amendment concerns, addresses officer safety and prevents the city from entering a monitorship that could cost taxpayers millions.
The monitor appointed by a federal judge in 2013 to oversee whether NYPD would cease its controversial stop-and-frisk practice, for example, has cost the city $34 million and counting, Miller said in court.
“I find it offensive to suggest that my division would sign off on anything that puts police officers physical safety at risk,” added Miller, who heads a unit in the city Law Department in charge of defending cops from lawsuits.
The settlement, if approved, would also curb the use of crowd-control tactic known as “kettling,” a term that describes officers barricading in protesters before arresting or taking other actions against them.
Penning in specific people who cops deem to be dangerous or believe have committed a crime will still be allowed, but surrounding and boxing in a large group of people without having “individualized probable cause” to arrest them will be banned, the deal says.
In March 2023, the city agreed to shell out $6 million to demonstrators who could show that they were confined and beaten or pepper-sprayed in one such “kettling” episode – in what plaintiff attorneys said could be the highest per-person amount awarded in a mass-arrest class-action lawsuit in city history.
Kettling did not come up during Monday’s hearing. But if McMahon rips up the settlement, the parts of the deal that relate to kettling will be impacted as well.
PBA head Patrick Hendry said Monday that the union wants the deal torn up “because it ignores the dangerous realities we face on the streets.”
In 2020, nearly 400 police officers were attacked and injured, and “untold amounts of property was destroyed because violent agitators used the protests as cover for mayhem,” Hendry added.
“Today, our city is enduring almost daily disruptions to its critical infrastructure by agitators whose stated goal is to prevent New Yorkers from going about their business in peace,” Hendry said in a statement.
“The settlement is not only dangerous for the PBA members assigned to protests — it is also dangerous for peaceful protestors and the public at large. The court must reject it.”