The NYPD has a duty not to violate individuals’ First Amendment rights. Yet, that’s exactly what happened during the George Floyd-inspired protests.
By Progress New York Staff
The Nation’s top Federal prosecutor in Manhattan with a mandate to enforce Constitutional rights, civil rights, and civil liberties is keeping quiet following explosive revelations that the New York Police Department‘s response to the George Floyd-inspired anti-racism and anti-police brutality protests of last spring “undermined public confidence in the NYPD’s discharge of its responsibility to protect the rights of citizens to engage in lawful protest.” The determination, made by the New York City Department of Investigation, was made public in a report published on 18 December 2020.
The press office supporting Acting U.S. Attorney Audrey Strauss declined to say whether the U.S. Attorney’s Office for New York’s southern district could launch a pattern or practise investigation into the NYPD’s violation of Constitutional rights of activists. Acting U.S. Attorney Strauss’s press office also refused to say whether the top Federal prosecutor still stood by her past praise of the NYPD. Since taking charge following years of chaos at the U.S. Department of Justice, Acting U.S. Attorney Strauss has described the NYPD as a partner, who she commends, at times calling them “outstanding.”
“When policing protests, NYPD’s responsibility is to facilitate individuals’ First Amendment rights to assemble and express themselves while protecting protesters and public safety,” the DOI report noted. However, the DOI report made a determination that the NYPD engaged in “excessive enforcement,” that conditions raised “legitimate public concerns about selective enforcement,” and that NYPD officials had complained about the ideology of protesters, for example, when protesters refused to coördinate their protests with the police.
Acting U.S. Attorney Strauss’s office refused to address DOI’s assertion that other Agencies can investigate the NYPD.
As reported by Progress New York, the NYPD have engaged in misconduct allegedly aimed to disrupt, in recent times, the 1998 Matthew Shepard memorial march, the 2002 World Economic Forum, the 2003 anti-war protests, the 2004 Republican National Convention, the 2011 Occupy Wall Street movement, and the 2014 police killing protests. Despite decades of First Amendment violations, DOI claimed that the NYPD still unbelievably lacked a “clearly defined strategy tailored to respond to the large-scale protests of police and policing.”
When DOI was pressed about whether the Municipal Agency would be referring a pattern or practise investigation to the U.S. Attorney’s Office of the NYPD’s routine violations of Constitutional rights, civil rights, and civil liberties, DOI’s Director of Communications and Senior Advisor Diane Struzzi replied that, “DOI’s comprehensive report is public, and other agencies can act as they deem appropriate.” The U.S. Attorney’s Office left unanswered a request for their response to Ms. Struzzi’s reply.
According to information obtained by Progress New York, one of the most vocal individual critics of the NYPD believes that the reason that Federal Law Enforcement Agencies don’t investigate the Municipal police force is because Federal Agents act with a sense of loyalty to NYPD Officers that is greater than the duty Federal Agents owe to enforcing Constitutional rights, civil rights, and civil liberties of individuals. The DOI report invoked the spectre of a lack of public confidence whenever prosecutors bring cases against police officers in their own jurisdiction, given the “close relationship” between prosecutors and police. As has been shown, the NYPD retaliate either by riots or work slowdowns whenever they face the possibility of outside investigation or civilian criticism.
The DOI report hinted at policing of ideology, at the same time it attempted to limit at least some criticism of the NYPD.
The DOI report made an admission that the NYPD “does not have a policy specific to policing protests or First Amendment-protected expression,” which was remarkable, since the NYPD is subject to oversight by three Agencies and to two sources of Court supervision, including to the guidelines issued in the Handschu Agreement, a framework approved by the Courts that regulates the NYPD’s conduct of political activity investigations. In its report, DOI appeared to assert that First Amendment rights to assembly, for example, rise from a “facilitation mindset” from the police (and not guarantees to freedoms granted under the Bill of Rights). In a discussion, authors of the DOI report advanced the idea that a “differentiated response” by the NYPD could lead to the imposition of burdens on protesters based on their ideology where “radical,” “fringe,” or “non-ideological opportunists (e.g., looters)” could face burdens.
As reported by Progress New York and its predecessor, Progress Queens, Federal Law Enforcement Agencies have been attempting to criminalise beliefs in some political ideologies. Past attempts at criminalising some political ideologies were dealt a blow in 1957, when the U.S. Supreme Court ruled that crimes charged under a Red scare law known as the Smith Act were unconstitutional. At that time then, communism was a political ideology that lead to prosecution. Now, many activists believe that anarchism as a political ideology is wrongly viewed by Law Enforcement Agencies as worthy of excessive or selective policing, investigation, or the imposition of other burdens.
Despite the serious issues raised in the DOI report, Municipal Investigators included low-level complaints, like the deployment of NYPD Officers without sufficient training, the lack of Community Affairs Officers, and the lack of data collection systems at the NYPD, the latter, which may trigger due process rights violations. In order to protect the NYPD commissioner from accusations of criminal subversion of open records laws, the DOI report also suggested that the NYPD appoint a designated deputy commissioner to accept responsibility for violating open records laws. Incredibly, the DOI also recommended consolidating the three Agencies currently tasked with oversight of the NYPD.
For this report, the NYPD declined a request to interview its Deputy Commissioner for Public Information, Richard Esposito.
In September, Human Rights Watch released a damning report about the NYPD’s abuse of powers during one of the anti-racism and anti-police brutality protests. “The months-long investigation from the nonprofit concludes that the NYPD violated a host of international human rights laws, including protections against the excessive use of force, violation of the rights to peaceful assembly, arbitrary arrests and detentions, and the cruel and degrading treatment of detainees,” according to an analysis of the report published by Gothamist.
- Investigation into NYPD Response to George Floyd Protests [NYC Department of Investigation]
- Acting U.S. Attorney Audrey Strauss won’t say how long she will continue to ignore videos allegedly showing NYPD police brutality and Constitutional rights violations [Progress New York]
- At SDNY, decades of looking the other way as commended partner NYPD continue to engage in a pattern or practise of violations of Constitutional and civil rights [Progress New York]
- Federal guidelines for the prosecution of activists appear to reconstruct a legal framework lost under the Smith Act [Progress Queens]