- Date of Incident
- July 15, 2020
- Mel D. Cole (Independent)
- 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 Mel D. Cole, Amr Alfiky, Diana Zeyneb Alhindawi, Jae Donnelly 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.
Photographer Mel D. Cole was documenting police-protester clashes from the Brooklyn Bridge footpath in New York City when officers arrested him, confiscated his equipment and detained him for seven hours on July 15, 2020, according to a federal lawsuit.
Cole is one of five news photographers who filed a federal lawsuit on Aug. 5, 2021, “seeking to hold the New York Police Department [NYPD] accountable for its violation of their First Amendment rights.” The suit is being led by the National Press Photographers Association, of which four of the journalists are members, in partnership with Davis Wright Tremaine LLP.
Cole was covering the protests that broke out in New York in response to police violence and in support of the Black Lives Matter movement after the death of George Floyd on May 25, 2020.
According to the complaint, Cole was on the Brooklyn Bridge footpath, preparing to photograph a pro-police march that was scheduled to cross the bridge into Manhattan. At approximately 10:30 a.m., counterprotesters arrived and clashes erupted between demonstrators and police.
“Cole had not participated in the counter-protests, had been peacefully photographing from a position outside the conflict, and was wearing multiple professional cameras around his neck and shoulder, making his status as a photojournalist visibly apparent,” according to the complaint. However, NYPD Lieutenant Richard Mack approached Cole and directed another officer to arrest him despite his status as a journalist and documentarian, the complaint noted, because he did not have a press pass.
The complaint said officers seized his cameras, brought him to One Police Plaza in Manhattan where he was processed, transported him to the 5th Police Precinct and placed him in a holding cell. “Sergeant Quigley told Mr. Cole that the NYPD knew that Mr. Cole had not been involved in any criminal act and should not have been arrested,” according to the complaint. “Sergeant Quigley also told Cole that he was ‘lucky’ that he was ‘not going to be locked up all weekend’ and indicated Mr. Cole should ‘thank’ Sergeant Quigley and the NYPD for ‘putting their necks on the line’ for him.” While maskless, Sergeant Quigley also pulled down Cole's mask at one point during the interaction, the complaint stated.
After several more hours, Cole was released without charge and his equipment returned to him with no documentation provided upon his release, according to the complaint.
“The reason why he was being arrested and the other journalists weren’t is because they had press passes and he didn't. When you're out in a traditional public forum, you don't need press passes if it's a matter of public concern,” Mickey H. Osterreicher, general counsel to the NPPA, told the U.S. Press Freedom Tracker. “Very often, having a press pass is a detriment and many will have them around their neck rather than displaying for that very reason.”
Cole and the New York Police Department did not respond to requests for comment. The U.S. Press Freedom Tracker is documenting assaults, arrests and other incidents involving journalists covering protests across the country.