NYPD Lawyer Who Oversaw Violent Arrests of Legal Observers Should Be Disciplined, Watchdog Says

The watchdog agency that oversees misconduct by the New York Police Department has recommended that disciplinary charges be brought against the NYPD lawyer who directed police to arrest impartial legal observers during a protest in the Bronx in the summer of 2020.

The Civilian Complaint Review Board substantiated 12 allegations against Sgt. Kenneth Rice of the NYPD Legal Bureau stemming from those arrests, finding that he had abused his authority. Rice was captured on video saying that “legal observers can be arrested.”

The board listed its findings in a letter sent to the legal observers earlier this month, noting that it had recommended charges against Rice. The letter does not state what the recommended charges are, and the case will be referred to another branch of the CCRB for prosecution. Still, it marks the first time the CCRB has recommended charges against a Legal Bureau lawyer based on their work at a protest, a board spokesperson told The Intercept. Rice has asked the CCRB to reconsider its findings.

The NYPD maintains that it sends its in-house lawyers from the Legal Bureau to observe protests to ensure that police follow the law when interacting with protesters, but civil rights attorneys contend that Legal Bureau lawyers help police violate the rights of protesters.

The arrests are already the subject of a federal lawsuit brought by the 12 legal observers from the National Lawyers Guild, all of whom were handcuffed and arrested while attempting to monitor police conduct during the protest before ultimately being released from the scene. But to date, the CCRB’s charges constitute the first indication that any branch of New York City government is concerned by the arrest of the impartial observers, who are trained by the National Lawyers Guild and tasked with ensuring that police respect the rights of protesters.

“The police commissioner and his Legal Bureau haven’t raised a finger since June 4, 2020, to affirm or protect the rights of legal observers,” said civil rights lawyer Gideon Oliver, one of three attorneys representing the legal observers. With police leadership remaining silent about the arrest of legal observers, he said, “there’s an ongoing threat that history will repeat itself.”

On the evening of June 4, 2020, police surrounded about 300 protesters in the Mott Haven neighborhood in the Bronx, preventing them from leaving, and then began shoving, beating, and violently arresting them. All told, police arrested 263 protesters in Mott Haven, charging many of them with violating the Covid-19 curfew then in effect, even though they had detained the protesters before the 8 p.m. curfew and then kept them from leaving.

The kettle and mass arrests in Mott Haven became one of the most dramatic instances of police violence against protesters during the tumultuous summer of 2020, leading to scathing reports from Human Rights Watch and New York City’s own Department of Investigation.

The only publicly acknowledged investigation into the arrest of legal observers concerns Krystin Hernandez, whose violent arrest was captured on video and included in a compilation of NYPD misconduct during the George Floyd protests published by the New York Times. According to reporting by The City, the NYPD’s Internal Affairs Bureau investigated the circumstances of Hernandez’s arrest and exonerated the officers involved. Hernandez is one of the plaintiffs in the legal observer lawsuit, to which city and police officials named as defendants have yet to file an answer.

A month after the mass arrest of legal observers in the Bronx, NYPD officers arrested another legal observer named Ryan Minett during a protest outside New York City Hall, according to a recently filed lawsuit.

Minett was working as a legal observer on July 3 when police arrested a protester, according to the lawsuit. Minett attempted to learn the protester’s name and asked a deputy inspector which precinct he was taking the protester to. The deputy inspector’s response was to order Minett handcuffed and place him under arrest himself. The entire process took place feet away from a representative of the NYPD Legal Bureau, according to the suit.

Minett spent five hours locked in a cell in a police precinct before being arraigned on charges that he was working in concert with protesters. Minett’s case was carried on from hearing to hearing until February 2021, when prosecutors dismissed the case, conceding that they couldn’t produce relevant evidence. Minett alleges that he was subjected to false arrest, excessive force, and malicious prosecution, among other claims. City and police officials named in the suit, which was filed October 1, have not yet responded.

Just what will come of the CCRB’s recommendation of discipline against Rice, the most severe action the board has the power to take, remains to be seen. The NYPD did not immediately respond to questions about Rice’s case, then sent the following statement on Thursday evening: “It is our understanding that the CCRB case is being reopened based on new evidence and we expect a different outcome.” A few hours later, the CCRB received a request to reopen the case from Rice. For the CCRB to reopen its investigation, Rice will need to put forward new evidence that would materially alter the board’s conclusions.

If the board doesn’t reopen Rice’s case, or if it does but reaches the same conclusion, his case will be referred to the board’s Administrative Prosecution Unit, which functions as a sort of prosecutor’s office, trying disciplinary cases against police officers before the NYPD’s deputy commissioner of trials, who acts as a judge. The deputy commissioner of trials, in turn, makes a disciplinary recommendation to the police commissioner, who can accept it or change it as he pleases.

According to the NYPD guidelines governing the penalties associated with specific charges, an officer found guilty of performing an “enforcement action involving an abuse of discretion or authority” can expect to be punished with the loss of 20 vacation days. If the NYPD were to determine that other circumstances mitigate or exacerbate the abuse of authority, the penalty for the charge could range from the loss of 10 vacation days up to termination.

CCRB Chair Fred Davie has repeatedly called for reforms allowing the CCRB to impose discipline on officers based on its investigations, arguing that leaving disciplinary decisions in the hands of police undercuts the concept of civilian oversight of the department. Until recently, the police commissioner was overturning nearly half of the CCRB’s disciplinary recommendations. In February, the CCRB and NYPD entered into an agreement to use a “disciplinary matrix” that establishes presumed punishments for specific types of officer misconduct. Since that time, according to the CCRB, the commissioner has followed the CCRB’s disciplinary recommendations more often.

In 2020 and the first quarter of 2021, the Administrative Prosecution Unit tried 31 cases against NYPD officers. The deputy commissioner of trials found officers guilty in two-thirds of those cases; of those, Police Commissioner Dermot Shea accepted the findings 55 percent of the time, increased the penalty imposed 10 percent of the time, and reversed or reduced the penalty 35 percent of the time.

For the NYPD to proceed with a disciplinary trial for Rice would be to engage with criticism of a police action that Shea has insisted was “executed nearly flawlessly.” But Oliver, the lawyer for the legal observers, said that regardless of how the department handles the charges against Rice, the findings by the CCRB are significant.

“The fact that the CCRB has substantiated these allegations against an NYPD Legal Bureau attorney should send a message to the police department,” Oliver said. “It should show them that there’s a big problem with what Sgt. Rice did, that the police department hasn’t acknowledged or taken any steps to address.”