- Date of Incident
- June 2, 2020
- Jae Donnelly (Daily Mail)
- Case number
- Case Status
- Type of case
Judge voids First Amendment settlement with NYPD
One day after formally approving a settlement between five photojournalists and the New York Police Department, a judge vacated the order on Sept. 8, 2023.
U.S. District Judge Colleen McMahon wrote that she had received a letter from the Police Benevolent Association — the city’s largest police union — opposing the federal settlement. The settlement, announced Sept. 5, addressed violations of the journalists’ First Amendment rights while covering social justice protests in 2020.
In reversing her order, McMahon cited an earlier ruling by the 2nd U.S. Circuit Court of Appeals that police unions should be allowed to intervene in court cases involving NYPD policies.
McMahon gave the police union and the settling parties until the end of October to file motions opposing or supporting the settlement, and has scheduled a hearing for Nov. 6.
Journalists reach 'historic' settlement with NYPD in First Amendment suit
Five photojournalists reached a settlement with the New York Police Department in their federal lawsuit for violations of their First Amendment rights while covering social justice protests in 2020, the National Press Photographers Association announced on Sept. 5, 2023.
The NPPA, which filed the lawsuit with the law firm Davis Wright Tremaine in August 2021 on behalf of journalists Jae Donnelly, Amr Alfiky, Diana Zeyneb Alhindawi, Mel D. Cole and Adam Gray, called the agreement “historic,” and said it would provide new protections for journalists in New York, along with police training and policy changes.
The wide-reaching settlement agreement [PDF] lays out extensive rules for the NYPD’s interactions with journalists and formally acknowledges that the press has a clearly established First Amendment right to record police activity in public places. Among other stipulations, it outlines that journalists credentialed by New York City may remain to report after a general public dispersal order has been made, and requires prior approval in some circumstances before a journalist can be arrested. The agreement also prohibits kettling, a technique used by law enforcement to round up and arrest large groups.
Policy changes, including annual training for NYPD officers and access for journalists to all public spaces, are also part of the agreement. The department must also designate a compliance officer for the settlement.
In a statement about the settlement, NPPA general counsel Mickey H. Osterreicher said he was pleased with the outcome and terms of the agreement. “Journalists are an essential part of a functioning, civil society and it’s essential that they be allowed to conduct their work free of harassment and assault, especially from state actors,” Osterreicher said.
British photojournalist sues NYPD for assaulting him, damaging his camera
British photojournalist Jae Donnelly and four other photographers filed a lawsuit against the New York Police Department on Aug. 5, 2021, in response to their unlawful arrests or assaults at the hands of police while documenting police activity in 2020.
Donnelly, who works for the U.K.-based Daily Mail, was documenting peaceful protests on the Upper West Side on June 2, 2020, when an officer charged him repeatedly, striking him over the arm and head with a baton. His camera and lens were both damaged when Donnelly fell due to the force of the blows.
On Aug. 5, 2021, the National Press Photographers Association and the law firm Davis Wright Tremaine LLP filed a suit on behalf of the five photographers alleging that the NYPD had violated their First Amendment rights.
The five photojournalists named as plaintiffs are :
“The right of journalists to record the activities of police officers engaged in their official duties in public places is fundamental," attorney Robert D. Balin of Davis Wright Tremaine said in a statement emailed to the U.S. Press Freedom Tracker. "Yet the NYPD has demonstrated a longstanding custom, pattern, and practice of unlawfully interfering with this First Amendment right and that pattern was revealed with dreadful clarity during the George Floyd protests.”
According to the complaint, reviewed by the Tracker, the photographers are seeking compensatory and punitive damages as well as an injunction directing the City of New York to effectively train officers on the right of the press and public to record police activity in public locations, cease arresting or using physical force against photographers and discipline the officers involved in such instances.
“There has been a longstanding failure on the part of the City to train, supervise, and discipline police who interfere with the media trying to do their jobs,” NPPA General Counsel Mickey Osterreicher said in a statement. “With this action, we're asking the court to finally call the NYPD to account for its unlawful practices.”
The NYPD did not immediately respond to an emailed request for comment.
Photojournalist Jae Donnelly was assaulted by a police officer while documenting protests in New York City on June 2, 2020. His camera and lens were also damaged in the attack.
Protests that began in Minnesota on May 26 have spread across the country, sparked by a video showing a police officer kneeling on the neck of George Floyd, a Black man, during an arrest the day before. Floyd was later pronounced dead at a hospital.
Donnelly, who works for the U.K.-based Daily Mail, told the U.S. Press Freedom Tracker that he was documenting peaceful protests on the Upper West Side at approximately 9:30 p.m. An 8 p.m. curfew was in place that night, though members of the media were exempt as “essential workers.”
He told the U.S. Press Freedom Tracker that he was wearing his foreign press pass and had a helmet strapped to his backpack, though he hadn’t used it given how peaceful the protests had been for the previous three hours.
The protest was progressing down Ninth Avenue and had just passed near the Midtown North Police Precinct on 54th Street when everyone started running south, Donnelly wrote in an account for the Daily Mail.
“I looked back and behind the running crowd, the tail end of the protests, a bunch of NYPD officers were picking off anybody they could get their hands on and arresting them,” Donnelly said.
The final photograph Donnelly captured was of a highly decorated officer coming toward him with a wooden stick taken from a protester.
“I remember trying to get away as he came at me, while explaining, ‘I’m media,’” he said.
Footage captured by the Associated Press shows a second officer charging at Donnelly from his left and striking him over the arm and head with a baton. Donnelly then spins around and appears to hold out his press pass. Donnelly told the Tracker that he was identifying himself again as a photojournalist for the Daily Mail.
The officer is then seen charging and striking Donnelly again.
“He hit me with such force that I had no control over how I landed,” Donnelly wrote. The next thing he knew he was on the ground on the opposite side of the street, his cheekbone in pain and his DSLR camera and lens smashed.
Donnelly told the Tracker that he is sure that the officer deliberately chose to assault him.
“There was absolutely no way he could not have seen me holding up my press pass and shouting that I’m media,” Donnelly said. “He made a decision, and that was to harm me.”
Donnelly said that he tried to find a high-ranking NYPD officer to speak to about the incident. When he asked officers congregating around the precinct how to file a complaint, they told him to call 911 and speak to Internal Affairs.
“I’ve never felt in fear doing my job but what I was on the receiving end of Tuesday night is setting a really dangerous precedent,” he wrote in his account.
When asked for comment, an NYPD spokesperson directed the Tracker to the “30-minute mark” of a press briefing held by New York Mayor Bill de Blasio and Police Commissioner Dermot Shea on June 3.
Around that point in the recording, Shea says: “The only thing that I might add on the point of the press: We’re doing the best we can, the difficult situation. We 100 percent respect the rights of the press. Unfortunately we’ve had some people purporting to be press that are actually lying, if you can believe that. So sometimes these things take a second—maybe too long—to sort out.”
Donnelly told the Tracker that he has been unable to work since the incident due to the damage to his equipment.
The U.S. Press Freedom Tracker is documenting several hundred total incidents of journalists assaulted, arrested, struck by crowd control ammunition or tear gas or had their equipment damaged while covering protests across the country related to the death of George Floyd while in police custody. Find all of these cases here.