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The new NYPD settlement on protests will protect the First Amendment

Yesterday, state Attorney General Tish James, joined by the Legal Aid Society, New York Civil Liberties Union and private plaintiffs reached a settlement with the NYPD over its treatment of protected speech protest activity as a result of its heavy-handed response to the 2020 racial justice protests following the killing of George Floyd.

The new agreement sensibly sets out a tiered framework for police response to so-called First Amendment activity (FAA), including a minimal presence during peaceful protests and the deployment of additional resources and units like the troubled Strategic Response Group only if a newly-appointed FAA executive signs off on it. Under it, the level of response is intended to be directly proportional to the level of supposed criminal activity happening around a protest with the explicit goal of preventing the police from chilling speech. Good going for James and the other plaintiffs in safeguarding our speech rights.

That the NYPD’s protest-response tactics and accountability practices needed a reevaluation is hardly arguable when just weeks ago the department’s actions triggered $13 million in settlements to be paid by taxpayers, but precious few real consequences for the officers involved. Former Police Commissioner Keechant Sewell refused to impose the Civilian Complaint Review Board’s often mild recommended discipline in more than half of cases where officers were even identified, not to mention the dozens where they weren’t.

Still, a settlement is just words on paper without real enforcement muscle behind it. The Nuñez settlement, which has for about eight years directed the city to improve dangerous conditions and pervasive violence on Rikers Island, has clearly failed to in and of itself compel the sorts of changes that are necessary, even if it has allowed the continued failures to be extensively documented by the federal monitor. Remedial orders and other motions failed to meaningfully move the needle. The settlement may finally lead to actual improvement if and when Manhattan Federal Judge Laura Taylor Swain appoints a monitor, who would have real teeth to implement reforms.

The closer parallel of the Handschu settlement, reached more than three decades ago to curb the NYPD’s habit of aggressively surveilling political movements and organizations that it disapproved of, clearly did not stop the department from, for example, unlawfully surveilling Muslim Americans in the aftermath of 9/11. These settlements then can best be understood as tools facilitating the type of active intervention that is often necessary, and not the intervention itself.

Fortunately, this settlement lays out a pretty robust and multi-phase oversight system, including a committee formed by the attorney general’s office, the commissioner of the Department of Investigation, corporation counsel, the force’s new protest chief and representatives from the plaintiffs, who will examine the NYPD’s compliance in phase two. The court will retain jurisdiction for a year after this phase.

This is the most important part of the settlement, and the key to its success. The NYPD can and might well claim without backing that a peaceful protest has criminality risk requiring an elevated response, for example. Both the committee and the courts must be willing to seek and mandate real consequences for noncompliance, including aggressive disciplinary action. Officers and department leaders should understand that violating the Constitution is not something that will be tolerated.

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