jacob blake protest

HELL NO, WE WON'T COOPERATE: While the Department of Investigation faulted the Police Department for its tactics and sometimes-disjointed response to the protests that began after the killing of George Floyd by a Minneapolis cop on Memorial Day and continued through the summer, it also acknowledged NYPD complaints that managing the demonstrations was complicated by having to deal more than usual with 'radical or fringe groups who eschew coordination with authority and may affirmatively advocate violence or property destruction.'

The city Department of Investigation's report on the Police Department's handling of protests that began in late May and continued for nearly two months contained findings that included phrases like "Lacked a Clearly Defined Strategy" and "Excessive Enforcement That Contributed to Heightened Tensions."

In her Dec. 18 press conference following the report's release, Investigation Commissioner Margaret Garnett declared, "The response really was a failure on many levels."

And Mayor de Blasio, in a videotaped response, stated, "I look back with remorse. I wish I had done better."

But a close look at DOI's findings paints a more nuanced picture, either in its own acknowledgments of what police could have done better or in details that indicate the fault in some cases should be divided, if not always equally, between cops and protesters.

And the agency's findings regarding messages emanating from City Hall that weren't always in sync with what came out of Police Headquarters make the case that Mr. de Blasio's Mayor Culpa concerned his own mistakes, rather than his taking responsibility for the NYPD's.

'Deja Vu All Over Again' 

One of DOI's conclusions was that the department did not seem to have learned much from its handling of past politically charged protests, including the demonstrations outside the Republican National Convention at Madison Square Garden in 2004 and its dealings with Occupy Wall Street a decade ago.

At Ms. Garnett's press conference, Greg Smith, the redoubtable investigative reporter from The City, called the report "deja vu all over again," then asked, "How does this report move us beyond what seems to be baked into the DNA of the New York City Police Department?"

He pointed out that Terence Monahan, currently the Chief of Department and at the time of the RNC 16 years ago a lower-ranking commander, had been cited in 2006 by the Civilian Complaint Review Board for leading an overreaction during the political convention as "one of the architects" of the NYPD's protest strategy.

"What does that say about the leadership of the New York City Police Department?" Mr. Smith asked.

One obvious response, though not the one the Investigation Commissioner offered, was that the NYPD has never taken the CCRB seriously.

And since then-Mayor Michael Bloomberg's desire not to embarrass the Bush Administration and possibly cost the city aid from Washington far outweighed his concern about protesters' civil liberties, the excesses by police at the 2004 convention weren't going to derail any police commander's career.

Anti-Cop Protests Not Unique

The suggestion by DOI that the department hadn't sufficiently taken into account this time "that the target of the protests was policing itself" doesn't hold up, unless the NYPD's institutional memory has grown hazy with time.

There were massive protests against police misconduct and the killing of unarmed black men on several occasions during Rudy Giuliani's mayoralty—the brutalizing of Abner Louima in a stationhouse bathroom in 1997, the 1999 killing of Amadou Diallo by cops who inexplicably first mistook him for a rape suspect and then thought the wallet he had pulled from his pocket was a gun, and the fatal shooting of Patrick Dorismond a year later by an undercover cop after Mr. Dorismond grew angered at being asked if he had drugs to sell.

There were also the more-recent protests after a Staten Island grand jury in December 2014 declined to indict Officer Daniel Pantaleo for the NYPD-banned chokehold that was a factor in the death of Eric Garner five months earlier on a Staten Island street when he resisted arrest for allegedly selling loose cigarettes. While some of those other protests came well before many of today's top NYPD officials had advanced beyond the Police Officer rank, the Garner protests should still be seared into their brains.

And DOI may not have reckoned with the reality that one reason those protests remain vivid is the egregious conduct by some of the protesters, from the peaceful souls who threw a trash can from the pedestrian walkway of the Brooklyn Bridge at cops standing on the roadway below, to the fringe group that marched through Manhattan chanting "What do we want? Dead cops! When do we want 'em? Now!"

Another reason is that not long after that, a career criminal with mental issues traveled from Baltimore to Brooklyn to assassinate two officers sitting in a patrol car, an action some city cops and unions believed was inspired by the rabid rhetoric of the protesters. 

Context, Anyone? 

Despite those protests being the closest recent link to those that began after the killing of George Floyd by a Minneapolis cop this past Memorial Day, DOI's report makes no mention of them, despite the fact that this offers some context for one of its key findings.

After noting that NYPD officials were surprised by the size of the protests that began a few days after Mr. Floyd's death, the report added, "In addition, officials described an unexpected amount of violence directed at officers, destruction of police property, and concurrent criminal activity while the protests were ongoing, including looting. Insufficient staffing, in both numbers and training, in the first few days, combined with the lack of coordinated strategy, likely contributed to overwhelmed and exhausted front-line police officers, creating conditions that increased the likelihood of poor judgment, unprofessional behavior, and unjustified use of force."

Being caught short-handed and surprised by the level of violence toward cops in what were repeatedly described in media accounts as largely peaceful protests led the department to bulk up the police presence and created greater tension among officers themselves as they monitored the rallies. 

"NYPD officials credited the additional deployments of resources with enhancing the Department's response and helping reduce violence, property damage, and criminal activity after the first several days of protest activity," the report stated.

But DOI officials were bothered by statements by NYPD officials  when asked whether they could have made changes to improve response besides the greater mobilization: "with few exceptions, officials offered none. While some difference in views is to be expected, the wide gap between the apparent views of the Department's most senior officials and the views of members of the public who participated in the protests was troubling."

No Consistent Strategy?

DOI felt the same way about the degree to which decisions were made on the streets rather than in response to directives from Police Plaza regarding how different protests were handled, sometimes in the same borough.

"Officials explained that the highest-ranking officer on the scene, often the borough or incident commander, had wide latitude over the utilization of available resources, strategies for policing particular protests, and judgments regarding enforcement action," it said. There were 700 members of the NYPD's Strategic Response Group, specially trained in handling protests and civil disorder, involved in the protests, but also hundreds of cops—often brought in from other boroughs and not working with officers they usually dealt with—assigned to protest duty.

Among the tactics used were what's become known as "kettling," which involves surrounding a crowd and limiting which way protesters can move. This brought charges that in some cases cops were not allowing demonstrators to peacefully exit rallies. "Though intended to preserve public safety," the report stated, "the disorder control response likely exacerbated tensions during protests about policing."

While questioning use of such tactics, one page later, the report noted that NYPD officials said they encountered four discrete groups at many of the rallies: people not always involved in such activities who had been galvanized by Mr. Floyd's death, experienced protesters who wanted their voices heard, "radical or fringe groups who eschew coordination with authority and may affirmatively advocate violence or property destruction" and "non-ideological opportunists (e.g. looters.)"

The report also stated that in contrast with protest groups with which the NYPD had long been familiar, the department was confronted by new leaders who refused on ideological grounds to cooperate with police in outlining plans for their protests, "Additionally, officials cited the increasing use of 'de-arrest' tactics, which they described as efforts by protesters to actively interfere when an officer attempts to arrest another protester."

One such group, known as the "FTP Coalition," an acronym the report said in a footnote was "known to stand for F--- the Police," was involved in one rally that resulted in mass arrests after police seized weapons from a number of individuals—including gang members—in the vicinity.

Arnie Kriss, who served as the NYPD's Deputy Commissioner for Trials during the Koch administration 40 years ago, and more recently as a private attorney represented protesters who sat down on the sidewalk outside Trump Tower in civil disobedience after the 2016 election, said that while the DOI report was "pretty fair," it was unrealistic in its expectation that cops could distinguish between peaceful protesters and those throwing bottles or other objects, particularly after dark, which was when much of the violence toward cops occurred.

Some people might be yelling at officers, legally if not politely, while someone nearby was "cocking their arm to throw a bottle, rock or tomato, so there's a threat even when some people are lawfully exercising their First Amendment rights," he said  

 A Dangerous Situation

Those who are protesting peacefully at the time that projectiles start flying, he said, "could get scuffed up. And I don't mean get hurt just by a cop—you could get hit by that rock." When the mood of a protest turns volatile, Mr. Kriss said, "My advice is to say what you have to say and then get the hell out of there if you see somebody about to throw a bottle."

Those peaceful demonstrators won't always sense that things are about to get out of hand, any more than the cops in the midst of a frenzy as they wade into a crowd after someone just hit one of them will be able to distinguish the miscreant from those just there to protest.

And it can be even harder, Mr. Kriss said, depending on how much training those cops have had in controlling demonstrations, and how much pressure they're feeling from a crowd or a few individuals within it.

Speaking of the police response, he said, "I thought some of it was horrific," citing one case mentioned in the DOI report in which officers in a patrol car in Brooklyn who found their path blocked by a large crowd drove slowly into it. "They could've backed their way out of it."

Not necessarily, though, since the video showed that part of the crowd had massed directly behind the patrol car. And so the officers were faced with several unpleasant choices, including the possibility that some of those in the crowd might begin rocking their vehicle or trying to pull them from it.

On the other end of the spectrum, Mr. Kriss said, "What's unconscionable is putting hands on police officers, spitting in the face of police officers."

And that was done, although it didn't get nearly the media attention of the video of an unambiguous case of egregious force—an officer shoving a young woman to the ground while ripping off her protective mask. It's impossible to justify such behavior, but the unwillingness of many public officials to condemn in strong terms the assaults on cops was also a disservice to maintaining peace and order in the city.

Other Side of Conflict

DOI acknowledged as much, stating in the report that while some protesters "expressed strong feelings of outrage and pain about police-involved killings, "Even so, during the course of the protests, numerous police officers were the target of violence, such as assaults and thrown objects, and suffered injuries, some of them serious."

It also noted "significant damage to police property," including incendiary devices thrown at NYPD vehicles, and the looting of "many stores and businesses...The First Amendment does not protect violence toward police officers or wanton property destruction and theft."    

A page later, though, it contended that "the NYPD gave insufficient attention to the need to balance the important objective of preventing additional violence and damage with the imperative of protecting citizens' rights to engage in lawful protest."

It also criticized the sharp increase in the number of officers, and the riot gear many were wearing, after being caught unprepared during the first couple of days of protests. "The size and appearance of the force gave the NYPD response an intimidating, confrontational character, which contributed to rather than reduced tensions between the police and the crowds, provoking additional violence," it stated.

Such criticisms occurred in a vacuum, however, as if the only actors in this drama were the cops and the peaceful protesters. The scenes of looting had gotten the attention not only of President Trump, who was threatening to bring in the National Guard, but Governor Cuomo. He reamed out cops for not doing more to apprehend the looters without differentiating between patrol officers following orders and police brass who were telling them to be restrained unless a threat was posed to the safety of individuals, including themselves.

Those pressures factored into the imposition of a curfew, originally set at 11 p.m. but changed a day later to 8 p.m. when it became clear that allowing protests to run well into the night meant tying up officers who couldn't be deployed to deal with the looting that bothered so many New Yorkers, Mr. Cuomo most prominent among them.

Not on Same Page

The first night of the 8 p.m. curfew, one patrol cop said at the time, he was part of the group monitoring a protest in the East 50s, and at the appointed hour Chief Monahan told the protesters it was time to shut it down. That produced little reaction from the crowd, and after further warnings failed to disperse them, about 9:30 the cops were ordered to move in and start making arrests.

DOI was critical of such tactics, which often involved kettling. It never posed the question to the protesters: "what part of 8 o'clock curfew don't you understand?" Each additional half-hour spent monitoring a protest that should have broken up was time diverted from dealing with more-serious issues at a time when shootings were on the rise, in addition to the property destruction going on in less-affluent parts of The Bronx and Brooklyn and major business areas in Manhattan.

The DOI report noted that Police Commissioner Dermot Shea had insisted to both the Mayor and the Governor that the earlier curfew was the best way to stop violence and looting, Yet it stated, "Enforcement of the curfew varied widely in different locations and on different dates...in some instances, protests were allowed to continue for hours after the curfew began, in others the arrival of the curfew was used as a tool to encourage or order protesters to disperse, and in still others the arrival of the curfew was used as a trigger for mass arrests based solely or primarily on curfew violations."

Part of the blame for the discrepancies lay at the doorstep of City Hall, the report stated: "The Mayor and other City Hall communications outlets almost immediately began to make public statements that the curfew would not be enforced against 'peaceful protesters' or that those protesting peacefully would not be arrested. These statements were unhelpful on multiple levels," not least that "Telling the public that peaceful protests could continue past the curfew, without consequence, undermined the goal considerably, further skewing the trade-off between public safety and public perception of First Amendment suppression."

The report added that "the gap between the Mayor's public statements and the NYPD's understanding of the enforcement authority derived from the Executive Order set up needless confrontations between police and protesters and unfairly fueled public perfections that the NYPD was abusing its authority."

Also Alienated Cops

Left unsaid was that this inconsistency gave patrol cops one more reason to resent Mr. de Blasio for undercutting their authority at the same time that he found it so hard to use words sharper than "unacceptable" to describe looters and those physically attacking officers.           

DOI issued 20 recommendations, many dealing with added training—which the NYPD began doing before the summer was over—and deployment, most of which Mr. Shea said he agreed with—as opposed to the report's findings.

Mr. Kriss said he believed what needed to be changed most in the department was the culture, while noting that the last time that occurred, it was under his old boss at the NYPD, Robert McGuire, who unlike those who followed him was neither a career cop nor—in the case of two of Rudy Giuliani's appointees, Howard Safir and Bernie Kerik—someone whose primary loyalty was to the Mayor rather than the department.

Noting the upcoming mayoral election, he remarked, "Everybody talks about how bad policing is. We're gonna have to figure out what policing in the City of New York is going to look like on Jan. 1, 2022. And what is the [future] Police Commissioner going to be asked during the job interview by the Mayor-elect?"

One question that ought to be asked concerns the handling of Officer Pantaleo's exit from the NYPD after he was convicted in a departmental trial of using an NYPD-banned chokehold on Mr. Garner.

Then-Commissioner James O'Neill deputized Chief Monahan to negotiate a possible deal with the officer's lawyer that would have allowed him to resign from the department rather than be fired. It blew up when Mayor de Blasio objected, infuriating the Police Benevolent Association.

Finally Made Right Call

But for all the Mayor's mistakes and failures of nerve regarding the Police Department, that wasn't one of them. What Greg Smith termed "the DNA" of the NYPD showed itself in Mr. O'Neill's willingness to consider such a deal for a cop who escaped criminal indictment only because of the political timidity of Staten Island District Attorney Danny Donovan, and stayed on the NYPD payroll for another five years—collecting overtime and getting salary boosts while accumulating pension credit—while the department waited on possible Federal civil-rights charges long after it was obvious they weren't going to be brought.

And then, rather than try to negotiate a plea deal before the departmental trial, where the standard of proof is less-rigorous than in a criminal court, Mr. Pantaleo opted to instead take his chances, and after being found guilty grabbed for last break after he'd been indulged more than he had any right to expect.

That's a culture issue more difficult to excuse or explain than almost any action the NYPD took during this year's demonstrations. Mr. O'Neill's willingness to entertain a deal in those circumstances would have been far more damaging to public confidence in the police if Mr. de Blasio had not interceded.

The intensity of the anger over George Floyd's killing—which while different in some respects from Mr. Garner's was similar in that there were other cops at the scene who did nothing to help the victim—was due, Mr. Kriss said, to built-up frustration over an "accumulation [of deaths of unarmed people of color] and it spilled over the top. What happened there was out-and-out homicide."

Until justice becomes the norm in such cases, he said, "The bottom line is there's no way to regain the trust of communities of color. They want to be protected [by the police], but you can't have these kinds of killings."

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