Corporation Counsel Issues Report on NYPD Response to George Floyd Protests in New York City

December 30, 2020

Report assesses the human impact of the pandemic and makes 10 recommendations to help the NYPD better respond to mass protests
Report underscores the City’s obligation to facilitate First Amendment expression while protecting public safety
Corporation Counsel James E. Johnson issued a report today analyzing the factors involved in the NYPD’s response to the George Floyd protests held throughout the City from May 28, 2020, through June 20, 2020.  Mayor de Blasio directed the Corporation Counsel to conduct the review through Executive Order (EO) No. 58. The EO also directed the New York City Department of Investigation (DOI) to evaluate NYPD’s response to the protests. DOI issued its report on December 18, 2020. 
For the Corporation Counsel’s analysis, a special Law Department team – walled off from other Law Department attorneys who may work on litigation related to the George Floyd protests – reviewed data that informed the context of the protests, reviewed numerous NYPD policies, and held conversations with NYPD officials and police oversight professionals from other cities regarding the policing of protests. In addition, the team obtained input from nationally-recognized policing and behavioral science experts.
Spring of 2020 brought with it a tremendous amount of loss. Grief for communities across the City, particularly communities of color, was compounded by the severe economic effects of the COVID-19 virus and the outrage over the killing of George Floyd. The first part of the report recounts the human impact of the pandemic and then conducts a policy analysis. The report found gaps in the NYPD's response to the protests, including gaps in NYPD's engagement with the community at the planning level and limitations in how officers are trained to respond to protests. Given concerns that the protests negatively impacted the goodwill between police and community, the report’s strategic checklist and 10 recommendations seek to help the NYPD better prepare and respond to protests, including where First Amendment expression and violent criminal behavior against individuals, including police officers, may be occurring at the same time. 
Corporation Counsel James E. Johnson said, “Before George Floyd was killed, New Yorkers had already experienced devastating tragedies last spring as the City was the epicenter of a global pandemic. No one deserves a tragedy. All of us deserve to have the depth of the loss acknowledged. The report uses health and economic data to convey the depth of the losses, underscore the racial disparities made very clear by the data and recognizes the voices articulating the pain of racial reckoning.  The report also acknowledges that the men and women of the NYPD were also experiencing loss before discussing their very important role in serving our nation’s values. The First Amendment establishes a core value within our nation; freedom of expression is central to our country’s progress and one of our strongest protections against tyranny.  A core function of government is also to ensure public safety. A just society is one that constantly works to strike the right balance.
“This past summer thousands of New Yorkers across the City peacefully protested the horrendous killing of George Floyd. At the same time other individuals engaged in opportunistic criminal activity, including looting, which presented the NYPD with the difficult challenge of balancing the First Amendment rights of individuals against public safety concerns. This summer's events raised questions about whether that balance was met.  This report both identifies factors that had an impact on the events of this summer and contains recommendations for a path forward as we work to enhance our ability to set the right balance.”

The Law Department’s report identified several factors that may have contributed to the intensity of the George Floyd protests. These include:
The COVID-19 Pandemic: The fact that the George Floyd protests occurred during a once-in-a-century pandemic cannot be understated. The pandemic significantly affected the physical health, the economic health, and the mental health of New Yorkers, falling hardest on the City’s Black and Latinx residents. The report outlines the many ways in which the City was impacted, and how the pandemic brought both a tremendous amount of uncertainty along with an unprecedented form of isolation. At the same time, the pandemic placed officers under a tremendous amount of stress. Officers witnessed fellow officers fall ill, experienced uncertainty over their assignments, and were concerned about the health of their family members. As explained through the lens of behavioral science, such stress and fatigue can impact the decisions of officers who are called to the front line of protests and asked to work longer shifts without days off. 
The Nature of the Protests: The George Floyd protests were also taking place within the larger national discussion around policing and community. New York City residents engaged in protests were reacting not just to the video of one Black man being killed by police action, but to the deaths of other Black people by law enforcement. These protests, the volume and geographic spread of which were unprecedented, were sometimes accompanied by vitriol and violence against the NYPD. Such an environment can negatively impact police officers and can affect how police and protesters view each other.   
Training: Behavioral science informs us that if officers do not have recent and appropriate training on strategies and tactics for policing protests but are nonetheless placed into such highly stressful situations – as was the case here – there is a high likelihood that they will revert to basic human responses to perceived threats. In policing, such responses would include an instinct to assert physical control of a disorderly situation, which may in turn serve to escalate hostilities in protest situations. Moreover, for those officers who do receive specialized training regarding protests and crowds, the training does not sufficiently provide officers with instruction around crowd psychology, de-escalation, and First Amendment issues.
Among other things, the report’s 10 recommendations include that the NYPD conduct more interagency planning, increase and vary mechanisms for engagement with the community, and improve officer training. The Law Department looks forward to working with the NYPD on implementing these recommendations.
The Executive Order did not direct the Corporation Counsel to make legal conclusions in this report.
The Corporation Counsel extends his gratitude to the members of the review team:  Chief of Staff Asim Rehman, Senior Counsel Andrew Almonte, Senior Counsel Andrea Berger, Senior Counsel Rebecca Lipman, and Assistant Corporation Counsel Gavin Mackie.  The review team was supported by Chief Ethics Officer Karen Griffin, Deputy Executive Assistant Corporation Counsel for Juvenile Justice Policy Thomas Giovanni, Deputy Chief for Strategic Litigation Tonya Jenerette, Executive Secretary Nakisha Coulter-Guillory, and Paralegal Takia Chandler.
The Corporation Counsel also thanks Edward Maguire, Sean Smoot and staff at ideas42 for their subject matter expertise.
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