In 'pandemonium,' photojournalist arrested, held overnight in NYC

A settlement agreement between five photojournalists and the New York Police Department was finally cleared for approval by a federal judge on Feb. 7, 2024, five months after a police union intervened in the suit, according to court documents reviewed by the U.S. Press Freedom Tracker.

The photojournalists initially reached the settlement in September 2023, resolving a federal lawsuit over violations of their First Amendment rights while covering social justice protests in 2020.

But a day after accepting the settlement, U.S. District Judge Colleen McMahon reversed her decision, writing that the Police Benevolent Association — the city’s largest police union — had submitted a letter opposing the agreement. An earlier federal appeals court ruling establishes that police unions can intervene in court cases involving NYPD policies.

In her latest ruling, however, McMahon dismissed the police union’s arguments that the changes the agreement mandates would endanger officers and the public, and allowed the settlement to proceed. “There is simply no evidence, let alone substantial evidence, that the public interest would be disserved if the settlement were approved,” she wrote.

The National Press Photographers Association had originally filed the lawsuit with the law firm Davis Wright Tremaine in August 2021 on behalf of journalists Adam Gray, Mel D. Cole, Amr Alfiky, Diana Zeyneb Alhindawi and Jae Donnelly.

The wide-reaching settlement agreement 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. The agreement also prohibits kettling, a technique used by law enforcement to round up and arrest large groups.

Civil rights attorney Wylie Stecklow, a member of the plaintiffs’ legal team, said, “The NYPD’s abuse of the media has been a systemic issue for decades and this historic injunctive settlement can hopefully provide a brighter future for the press to document police interactions at First Amendment activities and beyond in this great city.

“This settlement is not the end,” Stecklow added. “It’s just the beginning of re-training and new NYPD policies to ensure there is respect and protection for the press, up and down the NYPD hierarchy.”

The PBA called the agreement “misguided,” saying in an online statement, “If the NYPD is unable to prevent future demonstrations from devolving into chaos, the parties who signed onto this settlement must bear the blame.” The union did not respond to a request from the Tracker for further comment.

NPPA general counsel Mickey H. Osterreicher told the Tracker that the plaintiffs’ legal team is currently waiting for the judge to approve dismissal of the case now that the settlement is in place, and noted that the PBA may still appeal to the Second Circuit.

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.

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 Adam Gray, Amr Alfiky, Diana Zeyneb Alhindawi, Mel D. Cole and Jae Donnelly, 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 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.

Per the settlement agreement, Gray will also receive a monetary settlement. The amount was not made public.

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 Adam Gray 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.

Gray, chief photojournalist for UK-based South West News Service, was tackled to the ground and arrested while covering protests in downtown New York on May 30, 2020. Gray was held in police custody for nearly 11 hours and charged with unlawful assembly. The charge was dropped on June 5.

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 :

• Amr Alfiky
• Diana Zeyneb Alhindawi
• Mel D. Cole
• Jae Donnelly
• Gray

“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.