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How the NYPD Failed to Learn the Lessons of Past Protest Policing Missteps

Protesters laid down on Flatbush Avenue in honor of George Floyd.
Protesters laid on Flatbush Avenue in memory of George Floyd, May 31, 2020.
Ben Fractenberg/THE CITY

Late last week, the city Department of Investigation released a scathing report charging the NYPD with overreacting during last spring and summer’s eruption of protests over police brutality and racial injustice after the killing of George Floyd in Minneapolis.

Its 115 pages read like a bad flashback to 2004.

Here was the DOI detailing how cops had hemmed in and then arrested large groups of protesters — just like they did during the Republican National Convention of 2004. And here was the DOI, recounting how legal observers and journalists wrongfully wound up in police custody.

Just like in 2004.

“It is deja vu all over again in some ways,” DOI Commissioner Margaret Garnett acknowledged, citing instances of over-policing during this year’s racial justice protests that mirrored NYPD actions taken during the RNC and seven years later when the Occupy Wall Street movement massed in Lower Manhattan.

Department of Investigation Commissioner Margaret Garnett Press holds a remote news conference on a report about the NYPD’s handling of protests. YouTube/New York City Department of Investigation

“Anyone looking at these issues who is familiar with the Republican National Convention protests in 2004 and in some aspects the Occupy protests of 2011 and 2012 would find many of these things to be a familiar refrain,” she said. “Anyone familiar with the long view will come away from this thinking that a lot of the learning from those events seems to have fallen by the wayside.”

A Top Cop’s History

Garnett’s report named only two members of the department who’d been interviewed by her investigators in compiling DOI’s latest report: Police Commissioner Dermot Shea and Chief of Department Terence Monahan.

Monahan supervised RNC demonstration arrests 16 years ago — along with arrests in May and June, when New Yorkers thronged the streets to protest years of police killings of Black people across the country, from Floyd to Breonna Taylor in Louisville to Eric Garner on Staten Island.

Monahan has been cited in civil rights lawsuits for his actions for both series of demonstrations.

NYPD Chief of Department Terence Monahan
NYPD Chief of Department Terence Monahan
@NYPDChiefofDept/Twitter

In June, Monahan earned some accolades for taking a knee with demonstrators in Washington Square Park. Monahan, who was hit in the head by a marcher on the Brooklyn Bridge in July, has been repeatedly praised for his actions during the protests by both Mayor Bill de Blasio and Shea.

But as THE CITY reported in June, Monahan was also cited by the Civilian Complaint Review Board, the independent body that monitors police misconduct, for his handling of a controversial mass arrest during a protest in Lower Manhattan at the height of the RNC on Aug. 31, 2004.

On that hot summer day, an NYPD inspector told a group of protesters marching down Fulton Street they could proceed as long as they stayed on the sidewalk. “Have a safe march,” the inspector said, according to the CCRB’s investigation of the incident.

Minutes later, then-Deputy Chief Monahan ordered demonstrators to stop, yelling, without a bullhorn, that they were blocking the sidewalk and would be arrested if they did not disperse, according to internal CCRB documents obtained by THE CITY.

Some 50 seconds later, Monahan ordered the entire group arrested, according to the CCRB documents.

Most had no place to go because they were trapped between a fence and a row of cops. The CCRB in 2006 advised then-NYPD Commissioner Ray Kelly to implement reforms so that this type of arrest of peaceful protesters did not happen again.

That RNC incident was cited in a federal lawsuit filed in October by the New York Civil Liberties Union on behalf of 11 protesters arrested during this year’s police misconduct protests. NYCLU lawyers referred to the practice as “kettling” — arresting people essentially trapped by cops.

The NYCLU’s lawsuit describes demonstrators in Manhattan and Brooklyn facing the same circumstances as protesters at the RNC: cops ordering them to disperse with nowhere to go — then arresting them for refusing to leave.

“These tactics (in 2004) bear an unmistakable resemblance to the kettling tactics used throughout the current protests,” the lawsuit says

Call to ‘Do Better’

The DOI report backs up the allegation that little has changed.

While NYPD brass told the investigators that “protesters generally should be and were offered opportunities to leave when within a police formation,” DOI found “at least some protesters were unable to leave the formations prior to being arrested.”

DOI singled out mass arrests of peaceful protesters for violating the city’s curfew on June 4 in Mott Haven, The Bronx — arrests that Monahan also personally supervised. A Human Rights Watch report charged cops committed violations of international human rights law that day.

The NYPD contends police gave orders to disperse before making arrests, but DOI found it wasn’t that simple.

“It was impossible for most protesters to leave before the curfew because by that point officers… had already employed formations that surrounded a substantial number of the protesters prior to the curfew and blocked their ability to move,” DOI probers found.

NYPD officers swung batons at protesters in Mott Haven, Bronx during a June 4 protest.
NYPD officers swung batons at protesters in Mott Haven, The Bronx, during a June 4 protest.
Gregory Berg/gbergphoto.com

Another allegation that echoes back to 2004 is found in the NYCLU’s latest lawsuit, which names Monahan. The suit claims the NYPD wrongfully arrested peaceful protesters along with legal observers and journalists during mass arrests.

In his interview with DOI, Monahan said the department’s attorneys had authorized the arrest of legal observers, but when he learned of it, he ordered their release.

The NYCLU also filed two suits over the RNC arrests that made precisely the same allegation about unlawful arrests of legal observers and journalists.

In 2014, the city agreed to pay $18 million to settle lawsuits stemming from the RNC arrests — a settlement described by the NYCLU as a “record.”

On Friday, shortly after the DOI report landed, de Blasio tweeted a video apology saying, “I wish I had done better” and that he would insist that the NYPD “do better.” But pressed later for what exactly he was apologizing for, the mayor, who had defended the department’s handling of the protests, offered no specifics.

The NYCLU and the Legal Aid Society issued a joint statement praising DOI’s investigation, but questioned the watchdog’s recommendations that the NYPD change its training of officers.

“Simply instituting more training and shifting responsibilities around is not a solution,” the legal groups wrote. “The fundamental problem is a department — whose leadership and culture allowed the events of this summer to unfold — refuses to confront its own conduct, and does nothing to address the root causes of these long-standing problems.”

NYPD Offers No Solutions

Training is central to the report released Friday.

DOI focuses much of its criticism on officers who were poorly instructed on how to respond to protests that require the police to support protesters’ First Amendment rights. DOI pointed out that officers are still trained in tactics that were criticized as overly harsh after the RNC and Occupy Wall Street arrests.

In 2015, DOI notes, then-Commissioner William Bratton created the Strategic Response Group (SRG) specifically to handle “disorder control.” DOI pointed out the NYPD trains SRG cops in methods to control crowds, including a tactic NYPD calls “encirclement” — more commonly known as kettling.

An NYPD officer keeps watch over protesters outside the Barclays Center in Brooklyn on May 29.
An NYPD officer keeps watch over protesters outside the Barclays Center, May 29, 2020.
Ben Fractenberg/THE CITY

The NYPD’s long-standing resistance to acknowledging flaws is also apparent in the report. When DOI asked NYPD brass “whether, in retrospect, the department could have done anything else differently and made any further changes to improve its response to the protests, with few exceptions, officials offered none.”

While multiple investigations into misconduct are pending, as of Friday only two officers and one supervisor had faced any form of discipline for their actions during this year’s protests: one cop who ripped off the mask of a protester and pepper-sprayed him in the face, and another who shoved a protester to the ground while his supervisor stood by.

Garnett said one of the training-related issues of concern is “who in the police department responds to these things.” She singled out the SRG, saying it is “really focused on terrorist incidents, active shooters, rescue situations, riots.”

Anong her 20 recommendations to the NYPD for reform: Remove the SRG from handling protests.

Shea called DOI’s recommendations “logical and thoughtful” and said he intends to adopt them “into our future policy and training.”

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