police reform

The NYPD Brutalized Protesters in 2020. Will It Face a Reckoning?

New York police officers beating protesters with batons to disperse a protest on May 30, 2020 after the killing of George Floyd. Brooklyn, New York. Photo: Mostafa Bassim

This story was produced in partnership with the Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.

On June 4, 2020, hundreds of protesters marched through the Mott Haven neighborhood of the South Bronx, trailed by a large deployment of NYPD officers. About 50 cops diverted the march using a roadblock off Willis Avenue and then encircled — or “kettled”— people at 136th Street and Brook Avenue. The cops were joined by body-armor-wearing bicycle officers from the Strategic Response Group, the NYPD’s 700-strong squad formed in 2015 by former commissioner Bill Bratton and trained for both protest suppression and anti-terrorism patrols.

According to a lawsuit, Julian Phillips, who was in the crowd that day, heard a recorded announcement played over a loudspeaker claiming the demonstrators were in violation of an 8 p.m. curfew, though police had blocked them from dispersing. As the clock drew closer to eight, Phillips locked eyes with an officer in a white shirt — an NYPD supervisor — who, Phillips claimed, grinned at him and pointed to his watch. Within minutes, the cops waded into the crowd with batons flailing, indiscriminately dousing the trapped demonstrators with pepper spray. Phillips saw one officer use his riot shield to slam protesters to the ground before Phillips himself was dragged down by a crush of people, then pinned and arrested by multiple cops, one of whom he says repeatedly kneed him in the head.

In the wake of George Floyd’s murder that feverish summer, the NYPD responded to days of widespread protests with a prolonged campaign of aggression. Then–Police Commissioner Dermot Shea commended officers for doing a “phenomenal job,” and Mayor Bill de Blasio backed him up, blaming any violence in the demonstrations on a “substantial number of out-of-towners” — a phrase that harks back to the “outside agitator” infamously invoked by southern law enforcement during the 1960s to describe civil-rights protesters. But cell-phone videos and news broadcasts showed a police force out of control — one that turned to belligerent, often violent tactics against peaceful demonstrators in places like the South Bronx and downtown Brooklyn yet failed to stop the looting of business districts in lower Manhattan and the West Bronx.

The brutality on display two years ago is quickly receding into the historical memory. But a complex tangle of 2020-related litigation continues to wind its way through the courts with possibly enormous consequences for the NYPD’s handling of protests in the city going forward. In the future, it may not be police commanders who oversee the force’s response to demonstrations but a federal court. The intense unfolding legal battle illustrates why previous attempts have failed to transform the way cops deal with free speech and protest in New York City and the lengths to which the city will go to maintain the status quo.

New York City had seen well-publicized incidents of police brutality toward protesters many times: in 1988, 1992, 2003, 2004, and 2011, to name a few recent examples. But the NYPD’s behavior in May and June 2020 was uniquely violent. On May 28, a throng of cops battered dozens of protesters in Union Square; some officers body-slammed people with their mountain bikes. The next evening, chaos erupted in Brooklyn, first at the Barclays Center and then into the surrounding neighborhoods of Fort Greene, Clinton Hill, and Park Slope. An even larger crowd — enraged not only by the nine-minute video of Floyd’s murder but by footage of the NYPD’s suppression of the previous day’s demonstration — fought back against the cops, shrugging off pepper spray, brawling with officers, and torching police vehicles. That clash kicked off a tumultuous week of mass marches, skirmishes, thousands of arrests, and a citywide nighttime curfew.

In September 2020, Human Rights Watch issued a report concluding that “police conduct during the Mott Haven protest on June 4 amounts to serious violations of international human-rights law which the federal, state, and local governments are obligated to observe.” The brutality in Mott Haven was so extreme — cops even attacked medical workers in their scrubs and people acting as volunteer legal observers for the National Lawyers Guild — that the New York City Bar Association excoriated the NYPD. That October, New York Civil Liberties Union legal director Chris Dunn described the NYPD’s conduct in the summer protests as the most egregious example of police violence since the 1988 Tompkins Square Park riots.

To longtime NYPD observers, the response to the Floyd protests represents the culmination of its decades-long pattern of suppressing protests, often with the precision of military operations. Columbia University law professor Jeffrey Fagan, an influential expert on policing, crime, oversight, and gun control, labeled Terry Monahan, the NYPD’s former chief of department, as the “architect” of such policies, noting that Monahan was also a key player in policing the 2004 Republican National Convention. (The City reported that when Monahan retired in 2021, he received a $235,635 lump-sum payment along with his pension, the highest retirement payout ever recorded.)

“All of this — Critical Mass, Occupy, the RNC — they were building up the technology and strategic plan for how to disrupt legitimate protest,” Fagan said. Monahan declined a request for comment, citing ongoing litigation. “I look forward to testifying,” he wrote in an email.

Now, the city’s legal bill is coming due. At least 750 complaints were made to the Civilian Complaint Review Board regarding NYPD conduct during the Floyd demonstrations, leading to 321 official investigations. The agency has found merit in almost 40 percent of all cases investigated to date — the average usually ranges from 10 to 15 percent — against 145 officers. Of the 44 CCRB cases finalized by the NYPD, 18 cops have been found guilty of misconduct as of mid-May, the last time the oversight agency released data about protest-related disciplinary cases.

Several federal civil-rights lawsuits brought by protesters allegedly victimized by the NYPD have been consolidated for discovery purposes into a massive docket called “New York City Policing During Summer 2020 Demonstrations” in front of Southern District of New York judge Colleen McMahon and magistrate judge Gabriel W. Gorenstein. The city still faces an avalanche of tort claims and lawsuits stemming from the 2020 protests — more than 550 have been filed, according to a report from the city comptroller’s office. Since civil suits seldom figure into the NYPD’s internal-discipline system and the evaluations or promotions of officers, the end result of these legal actions will most likely be taxpayer-funded settlements for the plaintiffs.

Probably the most significant legal battle the city faces is an ongoing lawsuit from New York attorney general Letitia James, who in January 2021 filed suit seeking the imposition of court oversight to correct a pattern of suppressing protests that she maintains goes back decades. Echoing the observations of Fagan and other longtime NYPD observers, James’s complaint encompasses the NYPD’s response to Occupy Wall Street in 2011, the protests against the 2004 Republican National Convention in New York City, and the antiwar movement of the early aughts. “There is no question that the NYPD engaged in a pattern of excessive, brutal, and unlawful force against peaceful protesters,” James said on January 14, 2021.

James’s suit tallies more than 50 instances of blunt strikes, over 30 occasions of unlawful pepper-spray deployment by NYPD officers, and the use of “unreasonable” force against demonstrators in at least 75 examples over the course of the protests. Other instances of alleged police violence in the complaint include conduct during trans-led marches, election-related gatherings, and a dispute involving tenant advocates at a real-estate attorney’s office in downtown Brooklyn that led to 19 protesters being encircled and arrested. A spokesperson for James declined to comment, citing the ongoing litigation.

In an email statement, the NYPD denied allegations that it has systematically abrogated the First Amendment right to protest over the past 20 years. “T​​here is absolutely no pattern or practice of this Department suppressing lawful protests, making illegal arrests, or using excessive force. In fact, it’s the opposite,” the statement read.

Court oversight of New York City’s policing of protests would represent a sea change. As in other cities, oversight could be imposed through a consent decree, which would bind the NYPD to a set of agreed-upon terms ensuring its policing practices are in line with constitutional standards. Practically, it would mean a team of court-appointed monitors — typically a mix of academics, attorneys, former law enforcement, and other policing experts — who would closely evaluate police tactics and training methods for dealing with protesters, submitting their findings to the court on a quarterly or semi-annual basis with the purpose of evaluating the department’s progress. If the NYPD does not make the requisite policy changes or engages in future brutality or civil-rights violations against demonstrators, the AG could go back to the supervising federal judge and make the case that the department is in violation of the decree. The judge could then impose monetary sanctions, remove key personnel from their posts, or force through the reforms.

Consent decrees are typically imposed for five years but can be extended if the presiding judge determines a city’s police force has not made enough progress in changing its ways. (The longest-running consent decree is in Oakland, California, which has been under court oversight since 2003.)

Court oversight of the NYPD’s protest policing would not be the first such measure imposed on the country’s largest police department. Two other consent decrees and orders stemming from federal civil litigation already govern its post-9/11 intelligence-gathering practices and street stops by officers. Another possible consent decree could result from a recently announced U.S. Department of Justice investigation into a pattern and practice of gender-biased, ineffective casework by the Special Victims Division, the NYPD’s troubled sex-crimes unit.

Almost inevitably, police departments and police-friendly mayors chafe at consent decrees, which affirm that a law-enforcement agency is out of control and cannot be run effectively or lawfully by the local government. The New York City Law Department has played a significant but underreported role in shielding the NYPD from meaningful consequences: Under de Blasio, the agency increased staffing to allocate lawyers to NYPD-related lawsuits, with a goal of reducing settlement payouts to victims of police misconduct. In 2021, the city paid $206.7 million in settlements and judgments of police-related litigation. But the biggest obstacle to court-ordered reform is city lawyers’ talent for endlessly delaying the proceedings. Neither the consolidated federal civil-rights cases nor James’s lawsuit will likely be resolved swiftly; New York City attorneys, the NYCLU, the attorney general, and plaintiffs’ attorneys have been locked in discovery disputes that have dragged on for months. On several occasions, Judge Gorenstein has imposed financial sanctions against city lawyers for sandbagging the production of relevant NYPD documentation.

For much of the legal process, “the city has blown through deadlines to comply with discovery requests,” said Molly Biklen, the deputy legal director for the NYCLU, who is counsel on Payne v. City of New York et al., a lawsuit filed by 11 plaintiffs who claimed their civil rights were violated in numerous ways by NYPD officers during the 2020 demonstrations, including getting struck with batons and having a phone “forcefully knocked” out their hands. Bizarrely, at one point last summer, discovery in protest-related suits was delayed by a still-unattributed hacking attempt targeting the Law Department. But on July 28 of this year, plaintiffs’ attorneys in the consolidated George Floyd federal lawsuit submitted yet another request to a federal judge for sanctions against the city, alleging its attorneys have “slow-walked discovery and taken maximally recalcitrant positions without justification.”

City lawyers have resisted turning over the documentation, including a draft of an internal after-action report, because it purportedly was informational in nature and didn’t result in final discipline. Critically for the plaintiffs, the draft report includes an extensive examination of NYPD intelligence reports, interviews with officers, and other materials the city has refused to divulge. And the July 28 filing includes dozens of stills from body-camera footage of as-yet-unidentified officers who engaged in excessive force during the Floyd protests and other requests for identification. In one incident, the July filing seeks information to “identify Doe Officer who stepped on” plaintiff Oscar Rios’s “face, breaking his eyeglasses, and told Mr. Rios, in sum and substance, to ‘Shut the fuck up,’ after Mr. Rios expressed that he was struggling to breathe with his face pressed into the ground.”

On September 1, plaintiffs’ attorney J. Remy Green filed a motion accusing the Law Department of unnecessarily designating records as confidential, including email-signature images and “a bizarre pro-police song sent in by a citizen.” More alarmingly, Green’s motion accused city lawyers of including “hundreds, if not thousands, of blank or junk documents Defendants have marked as confidential” in discovery filings. The city’s pitched battles over discovery mean that a mountain of civil-rights complaints against the NYPD will likely drag on through at least 2023, though the docket shows there have been several mediation conferences between the parties during the last half of September.

So far, Floyd-related settlements have been sparse and small: On July 21, 12 volunteer legal observers with the National Lawyers Guild settled their suit against the city for $49,012 over their treatment by cops in Mott Haven. A number of observers were arrested that day under orders from NYPD Legal Bureau sergeant Kenneth Matthew Rice, who escaped discipline after an NYPD senior legal official, Oleg Chernyavsky, intervened in his case last December.

Sometimes, city lawyers have gone beyond mere stonewalling. In early May, Hell Gate reported that the city’s lead attorney, Dara Weiss, told Judge Gorenstein she had responded by email to a request for discovery in the consolidated protest suit concerning a racist video sent by former Sergeants Benevolent Association president Ed Mullins in 2019. But a forensic expert hired by the plaintiffs’ attorneys alleged that a PDF printout of an email Weiss said she had sent was a fake. “It is highly unlikely that the PDF was printed from a native email,” the expert wrote. According to Hell Gate, Weiss had already been sanctioned five times for failing to disclose evidence relating to the Floyd protests, and the city fired her after the email dispute. (In a May statement to the Times, Weiss said she had made an “unintentional mistake.”) Judge Gorenstein ordered the city to determine whether any of its employees were aware of other misrepresentations made to the court or the plaintiffs’ attorneys. On May 10, he ruled that the plaintiffs’ attorneys should be awarded attorneys fees in part for the work they undertook in surfacing the misrepresentation by Weiss.

“The NYPD and the city owe it to the people of New York to undertake an honest and transparent assessment of their failures during the 2020 protests and thereafter,” said Miriam Krinsky, a former federal prosecutor and the executive director of Fair and Just Prosecution. “That assessment necessarily must include looking at the actions of government lawyers and, if misconduct occurred, not simply addressing accountability but also looking at the systemic failures that allowed those acts to occur and what corrective action is needed.”

The Law Department has defended its conduct and claims Weiss’s termination shows the city’s commitment to complying with the discovery process. City lawyers described the plaintiffs’ broadsides against the city’s obstruction as mischaracterizations.

So far, the aftermath of the summer 2020 protests looks all too familiar: after-action reviews, investigative reports from external organizations, millions of dollars in legal settlements, and loud calls for reform that have largely gone ignored.

On a systemic level, almost nothing has changed in the past two years. No NYPD officers have been fired as a result of their conduct, and commanders who allegedly participated in or turned a blind eye to violence by subordinates have been promoted: Deputy Inspector Craig Edelman, who was in charge of Brooklyn’s 73rd Precinct when one of his subordinates pushed 21 year-old Dounya Zayer to the ground on the night of May 29 as he watched, was given the No. 2 job at the citywide Gun Violence Suppression Division.

Nearly two dozen officers found to have committed misconduct during the Floyd protests have received no discipline from Commissioner Keechant Sewell and her predecessor, Shea, despite substantiated CCRB charges. These include Captain Tarik Sheppard, who allegedly shoved a woman to the ground at a June 3 demonstration in Brooklyn’s Cadman Plaza, then ordered the arrest of Ernesto Lopez, who was manhandled and detained by other officers, according to a suit Lopez filed in May 2021. The CCRB sustained allegations of unwarranted force against Captain Sheppard and recommended charges, but his case was retained by Commissioner Shea and no discipline resulted.

The NYPD declined to comment on allegations against individual officers.

Earlier this month, a Bronx lieutenant who was photographed flailing his baton at demonstrators in the 2020 Mott Haven kettle retired after 20 years, avoiding discipline for his conduct toward BLM protesters and complainants in other incidents. The City reported that, at the time of his retirement, Lieutenant Eric Dym faced 29 charges brought by the CCRB, including four instances of pointing a gun at someone and one case of making a false official statement; the latter alone carries a penalty of termination. According to the CCRB database, Dym also had seven substantiated allegations of the use of improper physical force. Almost all of these took place between 2018 and June 2020, a period that includes the Mott Haven kettle.

Several interlocking dynamics help explain why the NYPD has been unable to change its ways from within. Inside the department, an insular, us-vs.-them worldview predominates. The force’s archconservative, heavily white command structure, which some have labeled the “Irish Mafia,” tends to perceive any attempt at outside oversight — from the CCRB, from local electeds, from the feds — as meddling. There are widespread perceptions that the disciplinary system is biased against lower-ranking officers, with supervisors seldom receiving meaningful penalties for their conduct, and the severity of discipline allegedly varies sharply according to racial background.

Criminal-legal-system veterans say the NYPD’s internal disciplinary system has been politicized and weakened to the point where an officer’s fate is often determined by rank and political connections. Arnie Kriss, a former Brooklyn assistant district attorney who ran the NYPD’s trial room as a deputy commissioner under Mayor Ed Koch, also cited the breakdown of an effective administrative system under the purview of the past four police commissioners — Ray Kelly, Bratton, James O’Neill, and Shea. Pointing to a 2019 independent report on the NYPD’s disciplinary process, Kriss noted this disciplinary system has become susceptible to outside parties lobbying the commissioner and other key department officials over specific case outcomes, thus weakening the integrity of the process. In the 2019 case of Officer Daniel Pantaleo, who was ultimately fired for fatally choking Eric Garner in 2014, the PBA reportedly negotiated a deal with then-Commissioner O’Neill and Chief of Department Monahan that would let Pantaleo retire and keep his pension. O’Neill later reneged on that agreement under pressure from de Blasio. “The report found there was interference from outside the police commissioner’s office: people coming in, talking to the police commissioner about specific cases,” Kriss said. While the deputy commissioner of trials can make recommendations about potential discipline, the final determinations ultimately lie with the commissioner, who can, and has, overturned sustained findings of culpability by officers and supervisors.

The disciplinary system’s dysfunction has been evident even in the highest-profile cases. Eight years after Garner’s killing, several cops involved in it still haven’t faced any disciplinary action. They include Justin D’Amico, Officer Pantaleo’s partner, who wrote up false charges after Garner’s arrest presumably to make it look more justified. In September, Garner’s mother, Gwen Carr, called for D’Amico and other cops involved in her son’s death to be fired. She’s fighting for the release of CCRB and NYPD files from 2014.

“The police cannot police themselves — we have seen the NYPD repeatedly fail to learn the lessons of years of abuses and unconstitutional policing of protests,” said Biklen, the NYCLU attorney. She said that consent decrees could lead to better outcomes and that if the city’s violations are egregious enough, there could be different consequences. In other cities, monitorships have intervened directly to hold supervisors to account, choosing which officers to promote and demote. Contretemps between court monitors and law-enforcement agencies under consent decrees are relatively frequent and a major reason that municipalities dread court intervention in the minutiae of running a police department.

There is also a reluctance among city politicians to attempt to overhaul the department for fear of being tarred as anti-cop or pro-criminal by the police unions and the NYPD’s allies in the media and in the city’s business lobby.

The track record of New York City’s political class over the past three decades lends little room for optimism. Since the 1992 Mollen Commission convened to examine systemic narcotics-related corruption in the NYPD, successive generations of mayors, councilmembers, state legislators, and attorneys general have watched the cost of NYPD-related legal settlements spiral upward as the department’s internal disciplinary system ossified. Even de Blasio, whose election in 2013 was due in large part to a yearslong campaign against Kelly’s and Mayor Mike Bloomberg’s stop and frisk regime (which resulted in the most recent of the NYPD’s court-oversight rulings), immediately distanced himself from revamping NYPD culture by appointing Bratton, the godfather of zero-tolerance tactics, as his police commissioner and engineering a 1,300-officer expansion of the department, largely via the creation of the SRG and the Critical Response Command. De Blasio’s subjugation to the NYPD was complete by the winter of 2014, when scores of police incensed over his critical remarks about the non-indictment of Officer Pantaleo for Garner’s murder turned their backs on the mayor at the funeral of two cops who had been killed by a Baltimore man.

De Blasio’s successor, Mayor Eric Adams, has been quiet on the fallout from the 2020 protests but has repeatedly called for the public to get behind the NYPD. Meanwhile, the department’s internal-discipline system continues to let cops skate for protest-related misconduct. New York City’s independent police watchdog has also shown serious deficiencies under the Adams administration: The CCRB’s investigations now take almost 600 days to complete, up from 378 days in 2021, according to data released this month in the annual Mayor’s Management Report. (The mayor’s office did not respond to requests for comment.) Fagan cautioned that even if court oversight is a positive step, it’s far from a cure-all. “There’s an institutionalist bias on the part of the judges who’d be implementing reforms: They tend to see problems and data in a light that’s most favorable to the NYPD,” he said. “In the city’s academic and policy circles, there’s not a lot of critical thinking.”

Fagan maintains that the NYPD has for too long been insulated against broad change by politicians and the city’s unelected power brokers. “It’s a huge agency with anywhere from 20,000 to 38,000 members, depending on the year,” he said. “It’s a big ship and a complicated bureaucracy, and that makes reforms really hard to stick. There has got to be sustained commitment from electeds as well. They don’t get to pass the buck to the courts.” Fagan noted that yet another option could eventually be to ask the court to place the NYPD under a formal receiver, who would effectively run the agency to ensure comprehensive reform and prevent future civil-rights violations. Of the existing court orders, the NYPD’s failure to overhaul its stop and frisk policies over nine years of monitoring could represent the clearest case for a receivership. Needless to say, this is the legal equivalent of the nuclear option.

But until that reality arrives, reformers will work with what they’ve got. A consent decree won’t solve the systemic problems that have led to so many unnecessary crackdowns on legitimate protest, but Attorney General James has taken the most concrete action of any elected official since the 1990s toward establishing external oversight on the NYPD. If she gets her way, it would mark real progress — and stand as the best hope for avoiding a violent repeat of summer 2020.

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