The NYPD will move forward with plans to stop using a controversial crowd-control tactic known as “kettling” after a judge denied the Big Apple’s largest police union’s bid to scuttle a federal settlement.
Judge Colleen McMahon on Wednesday scolded the Police Benevolent Association for griping about the deal City Hall agreed to in September to settle suits claiming cops used excessive force when responding to the 2020 George Floyd protests.
“There is no evidence in the record before the court that the PBA’s concerns were not seriously considered,” McMahon wrote in a 42-page ruling in Manhattan federal court.
“There is evidence that it chose to be oppositional simply to be oppositional,” the jurist added.
McMahon also stressed that the police union does not have “veto power” over the arrangement because it is not technically a party to the settlement — which was struck between city and state officials and lawyers for activists.
The union, which reps roughly 24,000 officers across the city, can only scuttle such a deal if it can claim to suffer “legal prejudice” if the deal goes through — a bar the PBA has not met, McMahon said.
The city’s new protest response plan will still allow officers to pen in, or “kettle,” specific people who they deem to be dangerous or believe have committed a crime.
However, surrounding and boxing in a large group of people without having “individualized probable cause” to arrest them will no longer be allowed.
The PBA had taken issue with the part of the deal calling for a new “tiered” strategy of dealing with protests, starting with a hands-off approach to “peaceful protests” but still allowing officers to escalate their response if the situation is deemed dangerous or if it blocks major traffic arteries.
The union argued at a January hearing that the new system would rob cops of using their “gut feelings” to protect New Yorkers when demonstrations turn rowdy.
But a lawyer for the city countered that the NYPD could start with a higher “tiered” response if it believes beforehand that a protest could be dangerous.
Nothing in the deal supports the idea that officer safety concerns “were ignored or minimized,” Judge McMahon wrote Wednesday.
The judge pointed out that city unions for both sergeants and detectives all signed on to the deal too — and that they also “share the same interest in safety that the PBA does.”
PBA President Patrick Hendry continued to argue Wednesday that the deal would put officers at risk by removing key “flexibility” in responding to demonstrations — and suggested that the city and state should be blamed if a future protest spirals out of control.
“If the NYPD is unable to prevent future demonstrations from devolving into chaos, the parties who signed onto this settlement must bear the blame,” Hendry said in a statement.
Public defenders Molly Biklen of the New York Civil Liberties Union and Jennvine Wong of the Legal Aid Society praised the judge for rejecting what they called “a baseless hail Mary that would perpetuate the abuses we saw in 2020.”
“We’re gratified that the court saw the PBA’s opposition for what it was,” they wrote in a joint statement.
Mayor Eric Adams endorsed the deal when it was announced, saying it ensures “that we are both protecting public safety and respecting protesters’ First Amendment rights.”
But the mayor — despite the city’s continued support for the deal — changed his tune in December, calling the settlement “troubling” and claiming it has made officers “hesitant” when responding to large, out-of-control marches.
A rep for Adams did not respond Wednesday to a request for comment.
Additional reporting by Craig McCarthy