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 Amr Alfiky, Diana Zeyneb Alhindawi, Mel D. Cole, 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. Alfiky was arrested by the NYPD in February 2020 and assaulted by an officer in May 2020, according to the lawsuit.
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.
Visual journalist and documentary filmmaker Amr Alfiky was repeatedly assaulted by police officers while photographing a protest in the Brooklyn borough of New York City, New York, on May 29, 2020, according to a federal lawsuit.
Alfiky 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.
According to the complaint, Alfiky was covering a demonstration near Barclays Center with his camera in one hand and press pass in the other when an NYPD officer began shouting at him. Alfiky repeated, “I'm a journalist, I have a press pass,” but the officer responded with “I don't give a fuck about your press pass,” shoving him in the chest with a baton.
The complaint stated that the officer continued to shove Alfiky back, causing him to trip and fall with “such force that an approximately one-inch-wide benign cyst on his back ruptured,” which led to "excruciating pain.” The officer continued to hit him with his baton and did not stop until two protesters pulled Alfiky away and helped him stand, according to the complaint.
“As a result of this assault, Mr. Alfiky suffered fever and infection. He later had to undergo medical treatment including a surgical procedure to clean the infected area in his back, and an additional procedure to remove the ruptured cyst,” the complaint noted. “Mr. Alfiky has also suffered back pain since the assault, which has been evaluated as likely caused by a traumatic incident.”
“He was showing his credential and not only did the officer completely disregard it, but actually said, ‘I don't give a fuck,’” Mickey H. Osterreicher, general counsel to the NPPA, told the U.S. Press Freedom Tracker. “That seems to sum up, unfortunately, a lot of the attitude of law enforcement toward journalists.”
Alfiky and the New York Police Department did not respond to a request for comment. The U.S. Press Freedom Tracker is documenting assaults, arrests and other incidents involving journalists covering protests across the country.