IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

The consolidated litigation arose from allegations concerning NYPD policing during demonstrations in New York City in 2020. The complaints alleged violations of the federal and New York constitutions, New York civil-rights law, and common-law torts, including claims involving excessive force, mass arrests, false arrests, and retaliation against protesters, journalists, legal observers, and bystanders. The plaintiffs sought injunctive, declaratory, and monetary relief.

Four cases seeking injunctive relief were involved in the settlement: Payne, People of the State of New York, Gray, and Rolon. The New York State Attorney General was the plaintiff in one case, and individual plaintiffs were involved in the other three. The Police Benevolent Association (PBA), a union representing line police officers below the grade of detective, intervened as a defendant. The PBA filed an answer but asserted no claims, and no claims were asserted against it.

After discovery and more than a year of mediation, the settling parties submitted a settlement, a proposed order, and a motion to dismiss under Rule 41(a)(2). The settlement required changes to NYPD procedures for demonstrations at which people exercise First Amendment rights. Among other provisions, it established a tiered policing system, a “Red Light/Green Light” arrest policy, after-action reports, revised training, and an oversight process. The court would receive reports and address certain disputes during an execution period lasting at least four years.

The PBA’s objection

The PBA argued that the Second Circuit’s earlier decision allowing it to intervene gave it the ability to block the settlement. It also argued that the settlement’s tiered response system and arrest policy were confusing, overly restrictive, and likely to delay police responses or endanger officers and the public.

The court rejected the claimed veto power. It held that intervention gave the PBA the right to participate as a party, but did not give it greater rights than other parties or authorize it to dictate the settlement’s terms. Under Rule 41(a)(2), the relevant question was whether dismissal would cause the PBA “legal prejudice”—the loss of a legal claim, cause of action, contract right, or ability to present relevant evidence. The court found that the PBA identified no such prejudice. It had asserted no claim, did not lose a future claim, and would not lose its contract or collective-bargaining rights. The settlement also did not prevent the PBA from participating in the development of later policy changes.

Consent-decree review

Although the settling parties did not ask the court to approve an ordinary private settlement, the court concluded that the proposed order made the settlement a consent decree. A consent decree is a settlement incorporated into a court order that includes injunctive requirements. Because the proposed order incorporated mandatory NYPD policies and required continuing court oversight, the court held that it had to review and approve the settlement.

The court applied the standard from U.S.S.E.C. v. Citigroup Global Markets, Inc., which asks whether a government-related consent decree is fair and reasonable and whether it would disserve the public interest. The court also concluded that the settlement satisfied the alternative standard discussed in Kozlowski v. Coughlin.

Under the fair-and-reasonable inquiry, the court found that the settlement was within the court’s authority, was legally permissible, contained sufficiently clear terms and enforcement mechanisms, addressed the claims in the complaints, and showed no improper collusion or corruption. The court rejected the PBA’s request to decide whether the settlement was substantively adequate for officer safety, explaining that this would improperly require the court to substitute its policy judgment for the settling parties’ judgment.

The court also found no substantial basis for concluding that the settlement would harm the public interest. It gave substantial deference to the New York Attorney General, the City, the NYPD, and the unions representing detectives and sergeants, all of which supported the settlement. The court found that the PBA’s evidence consisted principally of one retired police chief’s opinions, while the settling parties offered contrary expert evidence and other material supporting the settlement’s policing approach.

Disposition

Judge Colleen McMahon denied the PBA’s motion to disapprove the settlement, identified in the conclusion as the motion at Docket No. 1118. She granted the settling parties’ motion to dismiss, identified as the motion at Docket No. 1099, under Rule 41(a)(2). The court granted dismissal of the claims being settled with prejudice and agreed to execute the settling parties’ stipulations. The opinion states that the ruling technically applied at that moment to the Attorney General’s case, while the individual plaintiffs in the other three cases were expected to submit stipulations for the court’s signature in reliance on the decision.