Photojournalists settle long fought case against the NYPD

 Via National Press Photographers Association

September 5, 2023

Sept. 5, 2023 - The New York City Police Department (NYPD) has agreed to historic settlement terms with five photojournalists who were attacked and arrested by NYPD during the racial justice protests of 2020. The agreement reinforces the First Amendment rights of the public and the press, provides new protections for journalists operating in New York, and according to the terms of the agreement will improve police training and reinforce proper behavior toward the press.

The settlement resolves a federal lawsuit brought three years ago by attorneys from the National Press Photographers Association (NPPA), along with the nationally recognized law firm of Davis Wright Tremaine LLP and noted civil rights attorney Wylie Stecklow, on behalf of the five photojournalists, Adam Gray, Jason Donnelly, Diana Zeyneb Alhindawi, Mel D. Cole, and Amr Alfiky.


The agreement includes the following terms:

Journalists with press credentials issued by New York City’s Mayor’s Office of Media and Entertainment (MOME) will not need to leave the area when an order to disperse is issued to the general public and members of the press will not be subject to arrest for documenting police activity or for not leaving the general area;

NYPD will not arrest journalists with government-issued credentials for alleged low-level offenses (such as disorderly conduct or obstructing governmental administrations) without prior approval by an incident commander or a Deputy Commissioner, Public Information official. Any summons for such arrests will presumptively be issued to the journalist on site instead of at a police station, thereby discouraging the practice of unlawfully detaining journalists at police stations for hours before charges against them are dropped;

NYPD officers are prohibited from arresting, restricting, or interfering with members of the press for merely observing or recording police activity in public places;

NYPD will recognize the legitimacy of press passes that are issued by jurisdictions outside New York City;

NYPD is required to provide journalists with access “to any location where the public is permitted,” and NYPD officers are barred from putting up crime/accident/incident scene tape or establishing “frozen zones” for the purpose of preventing members of the press from viewing or recording events in public places;

Neither a press pass nor any other form of press identification is needed to observe or record police activity occurring in public places, including areas where protests, crimes, or other matters of public concern are taking place.


In the agreement, the NYPD also—for the first time ever—formally acknowledges that the press has a clearly established First Amendment right to record police activity in public places, and commits itself to respect that right. (See Settlement Agreement, ¶¶ 14, 89.) No press pass or other form of identification is needed to exercise this right. Pursuant to the agreement, the agency will update its guidelines, amend its current policies and training and will specifically train members of the service on treatment of the press and the clearly established right to record police activity in public. The agreement also makes clear that the increased protection for members of the press does not in any way diminish the right of citizens to record police activity in traditional public places.


“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,” said Mickey H. Osterreicher, general counsel to the NPPA. “On behalf of our members and all visual journalists, who perform a vital role as watchdogs and witnesses to history, I am very pleased with the terms of this agreement and the changes to police behavior that it demands.”


“This is not an agreement that will simply sit on a shelf,” added NPPA deputy general counsel Alicia Calzada. “It has real teeth and real mandates for improved training of police at all levels. We are hopeful this will truly change law enforcement culture when it comes to First Amendment activities.”


Attorney Robert D. Balin, who led the litigation for Davis Wright Tremaine accentuated the importance of the case. “The treatment that our clients received at the hands of the NYPD was not only unconstitutional, it was unconscionable, and a direct threat to our democratic principles,” Balin said. “I’m proud that these brave photojournalists chose to hold the police department accountable for their actions and I look forward to seeing the terms of this far-reaching settlement implemented for the benefit of all journalists.”


In addition to the policy changes, the settlement agreement also requires that the NYPD provide extensive annual training to all of its officers—ranging from Police Academy cadets to high-ranking executive personnel—on the First Amendment rights of the press and establishes a police-media relations committee to monitor and discuss future incidents involving the press. Additionally, for a period of three years, a committee headed by the New York City Department of Investigation will monitor police activity at protests to ensure that the NYPD complies with its commitments to respect the rights of peaceful protesters, journalists, and legal observers.


While pervasive mistreatment of journalists covering the George Floyd protests was the catalyst for the civil rights suit (see, Testimony of NPPA General Counsel Mickey H. Osterreicher June 15, 2020, OAG Hearing on Interactions Between NYPD and the General Public, p. 207), the scope of the agreement they ultimately hammered out with the NYPD reaches much further. The provisions in this settlement agreement related to the press are not limited to protest situations, but are crucial First Amendment principles that apply whenever members of the press are covering police activity in public.


“The NYPD’s abuse of the media has been a systemic issue for decades, and today’s injunctive settlement hopefully provides a brighter future for protest and the ability of the press and public to document police interactions at First Amendment activities and beyond in this great City,” said Wylie Stecklow, who in addition to his work on this case, regularly represents photographers and protesters whose rights have been violated by the NYPD. “But today’s announced settlement is not the end, 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. We cannot expect the rank and file to follow these rules related to the respect of First Amendment rights of the media, if high ranking officers are able to violate the rights of the media with impunity and immunity.”


The five plaintiffs in the case are award-winning visual journalists who have published their work in a variety of leading global news outlets, including Reuters, The New York Times, The Times of London, The Guardian, The Wall Street Journal, National Geographic, Paris Match, Le Monde, CNN, BBC, The Atlantic, Rolling Stone, and more.


Adam Gray, former chief photographer for the British press agency South West News Service and repeat recipient of the Photographer of the Year Award by the British Press Photographers’ Association, was the first plaintiff to join the case following his wrongful assault and arrest while covering the protests. He was pushed to the ground without warning, arrested, and detained overnight while covering protests in and around Union Square. “I’m extremely grateful for the no-cost representation provided to me and the other news professionals by Rob, Mickey, Wylie and their teams,” said Gray. “These protests happened during a critical inflection point for U.S. society and I am hopeful this settlement will mark a major change in New York’s police culture as well.”


Jae Donnelly, a well-known photographer, and regular contributor to The Daily Mail, was violently assaulted by a baton-wielding officer while photographing protestors in the Hell’s Kitchen neighborhood. “Our lawsuit has fought to change the NYPD rule book on how NYPD from top to bottom treat us news gathering professionals with the professional courtesy,” said Donnelly. “We deserve to be kept safe before one of us is eventually killed at work. My attack by an NYPD sergeant put myself and my family through much pain,” he added.


Amr Alfiky —who was arrested while photographing police activity on the Lower East Side in February 2020, and, in a second incident, violently attacked by an officer while covering protests at the Barclay’s Center in Brooklyn—celebrated the agreement. “This settlement is indeed historic and goes beyond the compensation for the profound damage caused by excessive use of force and unlawful arrests towards visual journalists and photographers in New York City,” he said. “Hopefully, this is the start of a new era of how journalists are perceived and treated by NYPD.” Alfiky is now a staff photographer for Reuters in the Middle East.


Diana Zeyneb Alhindawi, a renowned documentary and news photographer, who was hit in the face by a baton-wielding officer while photographing police beating a young man in Lower Manhattan said, “as a photographer working in conflict zones around the world, I was stunned when the NYPD struck me with a baton, splitting my lip, when I was simply doing my job on the public streets of NYC a few days after the murder of George Floyd. It was the first time I'd suffered an injury while on the job, and it wasn't in war-torn Congo or South Sudan, but in the New York City. I'm glad to see that in the USA, however, when the rights of the press are so egregiously infringed upon, there is a legal system that can come to our support. I do hope our trial will move things in the right direction for us journalists to be able to do our jobs without fear of unlawful arrest or harm, and ultimately for freedom of the press and a more just society.”


Mel D. Cole, a widely published visual journalist and music photographer, was documenting police-protester clashes from the Brooklyn Bridge footpath when he was arrested, stripped of his cameras, and held for seven hours. “Going to jail for doing your job as a photographer should never ever happen. I'm happy that I can now put what should have never been behind me, but I will never forget the feelings that I had that day while being handcuffed and not being able to free when I should have been!” he said.


These terms are all part of a larger settlement announced today of claims that were brought on behalf of peaceful protestors by the New York Attorney General’s Office, the New York Civil Liberties Union, The Legal Aid Society, Gideon Orion Oliver, and civil rights firms Cohen & Green and the Aboushi Law Firm. The NPPA had previously filed public comments and testified during public hearings regarding the mistreatment of the press during the 2020 protests. Along with the agreed upon terms of the settlement, the photographers will all receive monetary compensation.


This significant civil rights litigation was supported by NPPA counsel Osterreicher and Calzada and a team that consisted of Davis Wright Tremaine counsel Robert D. Balin, Abigail Everdell, Alison Schary, Kathleen Farley, Alexandra Settelmayer, Nimra Azmi, Megan Amaris, Jean Fundakowski and Veronica Muriel Carrioni, and paralegal Megan Duffy, along with attorney Wiley Stecklow of Wylie Stecklow, PLLC.

About the National Press Photographers Association NPPA is a 501(c)(6) non-profit organization dedicated to the advancement of visual journalism in its creation, editing, and distribution. NPPA’s members include video and still photographers, editors, students, and representatives of businesses that serve the visual journalism community. Since its founding in 1946, the NPPA has been the Voice of Visual Journalists, vigorously promoting the constitutional and intellectual property rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. For more information, go to nppa.org.

Photojournalists settle long fought case against the NYPD (nppa.org)

Photojournalists Stephanie Keith, Charles Meacham; the National Press Photographers Association Sue NYC for violated their First, Fourth, and Fourteen amendment rights during Occupy Wall Street protests in 2011

Via pdn

NYC Sued for Systematic Civil Rights Violations During Occupy Protests

Occupy Wall street protesters, New York City council members, and several journalists have filed suit against the City of New York, the Metropolitan Transit Authority, JP Morgan Chase and other defendants, alleging widespread civil rights violations during the Occupy Wall Street process in 2011. The lawsuit was filed today in Federal District Court in New York City.

The plaintiffs--including photojournalists Stephanie Keith, Charles Meacham, the National Press Photographers Association, several citizen journalists and five New York City council members--allege that the New York City Police Department .

"The City of New York in concert with various private and public entities have employed Officers of the New York City Police Department (NYPD) and others acting under color of state law, to intentionally and willfully subject Plaintiffs and the public to, among other things, violation of rights of free speech, assembly, freedom of the press, false arrest, excessive forces, false imprisonment, and malicious prosecution and, furthermore, purposefully obstructing plaintiffs carrying out their duties as elected officials and members of the press," the lawsuit asserts.

It goes on to say that police conduct was intended to obstruct, chill, deter and retaliate against the plaintiffs for engaging in "constitutionally protected activity." It accuses the NYPD of unreasonable search and seizure of the individual defendants (a Fourth Amendment violation) and deprivation of due process (a Fourteenth Amendment violation.)

The plaintiffs are seeking an unspecified amount of "compensatory and monetary damages," as well as injunctions to force the NYPD to allow citizens to protest peacefully in public spaces, and to prevent the police from barring the access of journalists to protests.

The suit includes allegations of specific acts of police misconduct against each individual defendant. More generally, it alleges that police prevented citizens from gathering lawfully and peacefully in public spaces; that police violated privacy by retaining photographs of protesters who were arrested then released without charges; that police detained people for extended periods without charges; that police charged the plaintiffs without probable cause, and for crimes not committed; that police used excessive force to discourage people from exercising free speech and other constitutional rights; and that police justified the use of excessive force under false pretenses.

It also alleges that police barred journalists from covering the eviction of protesters from Zuccotti Park on November 15, 2011. "The NYPD's use of force in general, and against journalists in particular is on-going and well-documented," the lawsuit alleges, with references to many reports about police conduct.

It also paints a picture of the NYPD as an unaccountable, insular organization that covers up the misconduct of individual police officers. "These practices, policies and customer engender perverse incentive for officers to commit acts of misconduct against civilians without consequences," the lawsuit alleged.

The lawsuit goes on to say, "by employing the NYPD in its present condition to police protests while failing to provide meaningful avenues of police accountability, the [City of New York] chills each plaintiff, and indeed each citizen, from engaging in Constitutionally protected speech by setting up the NYPD, in effect, as the arbiter of the content of speech in a democratic society."

Related:

Here we go again: Occupy Wal Street Arrests Photographers

 Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street
Report issued by The Global Justice Clinic (NYU School of Law) and the Walter Leitner International Human Rights Clinic at the  Leitner Center for International Law and Justice (Fordham)

NYPD 'consistently violated basic rights' during Occupy protests – Report by NYU and Fordham law schools

Photograph: Jessica Rinaldi/Reuters

Via The Guardian


"...evidence that police made violent late-night raids on peaceful encampments, obstructed independent legal monitors and was opaque about its policies"

"Obstruction of press freedoms and independent legal monitoring, including arrests of at least 10 journalists, and multiple cases of preventing journalists from reporting on protests or barring and evicting them from specific sites."

Full article here.

Previous coverage: Freedom of the Press?

"in 2011, the NYPD stopped someone every 45 seconds"

Must Read: Stop and Frisk Procedures, Photography, Activism and the NYPD: A Conversation with Nina Berman

Via Prison Photography

"I was in the Bronx on another project and I didn’t have my camera out. I saw a man riding a bicycle and a cop stopped him in the middle of the street. He stayed on his bicycle and he just immediately put his arms out in the air, like he knew precisely what position to assume. That’s a whole other thing that interests me; how body language for some people according to their race is a normalized gesture. For white people gestures [associated with Stop & Frisk] would be abnormal gestures.

Last summer, I saw a guy – he looked like he was 17 or 18 years old – in the Bronx and two plain-clothed cops came out and pushed him against a wall and stripped him of everything. It was intense."

Read the full post here.

“That the First Amendment right to gather news is . . . not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press"

Via National Press Photographers Association June 8, 2012

"I read with disappointing disbelief your recent statement in the Queens Chronicle “that only one journalist was arrested during the operation, despite stories to the contrary,” which you called “a total myth.” I also found it incredulous that given our media coalition letter of November 21, 2011, which addressed the arrests of journalists in and around Zuccotti Park; and during our meeting with you and Commissioner Kelly on November 23, 2011, no one ever raised the issue that “Occupy Wall Street protesters were forging press credentials in an effort to get through the police lines.” To hear you now deny your department’s culpability by claiming that “actual reporters” were not arrested is an absolute revision of history and is more appropriate as part of “1984 Newspeak” than coming from the Deputy Commissioner for Public Information for the NYPD."


Via SaveTheNews.org

NYPD Tries to Rewrite History
"After becoming the epicenter for press suppression and journalist arrests over the last nine months, the NYPD is trying to rewrite history and pretend like nothing ever happened."

Via New York Observer Politicker  June 8, 2012
NYPD Spokesman Says Stories Of Reporters Arrested At Occupy Raid Were ‘A Total Myth’


Setting the Record Straight on NYPD Journalist Arrests


February 1, 2012: The New York Times fired off another letter to the Police Department today on behalf of 13 New York-based news organizations about police treatment of the press over the last several months.

"You got that credential you’re wearing from us, and we can take it away from you.”

November 18, 2011: As faculty members of the Columbia University Graduate School of Journalism, we are alarmed at the arrests of working news professionals during the ongoing Occupy Wall Street protests, and deeply concerned that the NYPD blocked reporters' and photographers' access to Zuccotti Park during the recent eviction of the Occupy Wall Street encampment.

The New York Times Sends Angry Letter to NYPD Over Blocked Photographer

Via The New York Observer

You didn’t think that The Paper of Record was going to take the mistreatment of one of their photographers at Monday’s Occupy Wall Street Protest at the World Financial Center Plaza sitting down, did you? Absolutely not:

Once The New York Times confirmed that their own freelance journalist Robert Stolarik was captured on video being pushed down the steps of the atrium by a member of the NYPD and then blocked by another officer with a baton for trying to take pictures of the ensuing arrests, the editors wrote a strongly-worded email to the NYPD. Because the first time they told Ray Kelly and Michael Bloomberg that the harassment of credentialed journos would not be taken lightly, it worked out so well?

While we don’t have an exact copy of the memo, NYT‘s VP and assistant general counsel George Freeman said:

“It seemed pretty clear from the video that the Times freelance photographer was being intentionally blocked by the police officer who was kind of bobbing and weaving to keep him from taking photographs,” said Freeman, who expressed concern Tuesday that the commissioner’s “message that was sent out, while aimed with good intentions, doesn’t seem to have had much effect on the ground.”

And while the NYPD’s department head has acknowledged relieving the note, there has been no response from Commissioner Kelly or one of his representatives. Because who needs to answer to journalists anymore?

You Tube video here

NY Times: The Police, the Press and Protests: Did Everyone Get the Memo?

Related:  Columbia Journalism School letter to Mayor Bloomberg and NYPD
         
               NYPD Orders Officers Not To Interfere With Press

NYPD orders officers not to interfere with press

Breaking News Via the Associated Press:

Nov 23, 6:53 PM EST

NYPD orders officers not to interfere with press

By COLLEEN LONG
Associated Press

NEW YORK (AP) -- The New York Police Department's commissioner on Wednesday sent an internal message to officers ordering them not to unreasonably interfere with media access during news coverage and warning those who do will be subject to disciplinary action, after several journalists were arrested covering Occupy Wall Street demonstrations last week.

Read full article here.

Related: Columbia University School of Journalism letter to Mayor Bloomberg and NYPD