Brian Lehrer: Brian Lehrer on WNYC. Last month, the New York City Department of Investigation concluded that the NYPD used excessive force during last summer's racial justice protests. It wasn't just a few bad apples, as they say, acting as individuals. The report said, "Our investigators found that the NYPD, as an institution, made a number of key errors or omissions that likely escalated tensions and potential for violence." Investigations commissioner, Margaret Garnett said the NYPD's tactics often fail to discriminate between lawful peaceful protestors and unlawful actors. In just a minute, we will talk with Commissioner Garnett to see if she thinks the mayor and the police commissioner have responded to the report with the necessary reforms.

Just last week, for example, on Martin Luther King Day, there seemed to be another incident involving some of the same violent arrest procedures at a racial justice protests similar to what the report criticized from last summer. Before we bring on the commissioner, though, let's turn back the clock to give you a little bit of a reminder of the context. This is from the night of June 4th of last year, and listen to a minute and a half of a live report we aired at the time from Gothamist reporter, Jake Offenhartz, in the Bronx.

Jake Offenhartz: I'm in Mott Haven. I am seeing about probably 300 police officers because they blocked off the area where they've pinned, I believe are continuing to pin a large group of protesters who I was with a couple of minutes ago. We had been marching down. We were at 143rd before, we were marching south. At one point, a large group of cops on bicycles and heavy armor showed up and barricaded the narrow street that we were walking down, and it happened pretty quickly. People, I don't think realized what was happening, but as there was a little bit of bottleneck in the group, a couple of hundred people were approaching the barricade of bike cops.

Basically, as the clock struck 8:00 PM, another group of cops came from behind with batons out and started pushing people. It was a really scary and claustrophobic scene in there. I don't know that it's been freed up yet. I think they might still be there. They're not letting us anywhere near it, but there were some really brutal arrests. There was pepper spray. I heard that a pregnant woman got pepper-sprayed. People were screaming horrified. Legal observers with the National Lawyers Guild were handcuffed and detained. I don't know where they are right now. It was a really hairy scene there.

Brian: Gothamist's Jake Offenhartz with sirens in the background live on the air here on the night of June 4th, 2020. With me now is New York City Department of Investigations Commissioner Margaret Garnett. Commissioner, thanks so much for coming on to follow up. Welcome to WNYC.

Commissioner Margaret Garnett: Thank you so much, Brian. I'm a big fan of your show.

Brian: Thank you. By way of background, first, you previously worked in the State Attorney General's Office, I know, and you were appointed to this job a couple of years ago by Mayor DeBlasio. How does that system work? The mayor, who you're supposed to investigate if necessary, gets to choose the person who does that.

Commissioner Garnett: The commissioner of DOI is a mayoral appointee but is one of the few mayoral appointees who has to be confirmed by the city council. There's a pretty robust advice and consent function on that. Then really there are safeguards in place. I certainly have been very conscious of them to ensure DOI's independence once you have been confirmed by the council.

One of the statutory constraints is that the DOI commissioner is one of the few agency heads who's not an at-will employee of the mayor. If the mayor wants to fire a DOI commissioner, that there's a appeal process that the council can get involved in that. That's very unusual on city government, and this is one of the institutional protections for DOI's independence.

Brian: What made you decide to investigate last summer's police response to the racial justice protests? Because there are only so many things that your office can investigate, you decided to put a lens on this. How come?

Commissioner Garnett: Well, we received a directive directly from the mayor, as well as the speaker of the council and your previous guest, Councilman Ritchie Torres when he was in the council. Part of the charter structure of DOI is that certain city entities, including the mayor and the city council, are what we call at DOI must-investigates, where they can refer to DOI and we have to investigate that. That's really was the genesis of this undertaking, is that a specific and direct referral from both the mayor and the council.

Brian: Your report has many elements and we'll get to a few. Could you elaborate first on the quote I read before the clip that the NYPD's tactics often fail to discriminate between lawful peaceful protestors and unlawful actors? You don't say some individual officers did that, you say the NYPD's tactics. What tactics, for example, and who was responsible for their use?

Commissioner Garnett: Some of the tactics that we talk about in the report are a concept that at the time of the protest, I think the media typically called kettling, and that NYPD in their own materials, refer to as encirclement, which is a strategy where if-- in the police department's literature, if they intend to make mass arrest, or many people are going to be arrested at the same time, they use various techniques to basically encircle a group of protestors to make carrying out a mass arrest easier. We saw that tactic used many times during the racial justice protests in the summer.

Other types of force, including pepper spray which came up in the Jake Offenhartz's report that you just discussed. A number of other tactics that really are impossible to use in a way that we talk about in the report, which is this concept of differentiation, and strategies and tactics that are available to the police and have been studied quite a bit in policing literature about how-- obviously, the police have an important public safety role. We did see in these protests in the summer and in other ones, some use of pretty significant violence and property destruction by a very small number of protestors.

The difficult task for the police is to differentiate so that they are taking measures to protect public safety against those who want to use violence, while also, as was the case this summer, creating a way, facilitating a way, for thousands, tens of thousands of New Yorkers to exercise their protected First Amendment rights.

Brian: Well, the clip of our reporter, Jake Offenhartz, was from the specific protest that has drawn the most attention, the one in Mott Haven on June 4th. We also did a segment yesterday on the new letter demanding reparations for that incident to some of the peaceful protesters who became victims of police actions that day. Your language in the report was that the NYPD's tactics often fail to discriminate between lawful peaceful protestors and unlawful actors. How many other instances other than June 4th, which has gotten a lot of attention, does the word often refer to?

Commissioner Garnett: Well, I think that we saw a number of other instances during that course of the protest in late May and early June, where we document some of these instances in the report where hundreds of protesters at a time were arrested. I don't think even the police department would say that in those instances where hundreds of people were arrested, that all of those hundreds of people were engaged in violence or in property destruction. I think what you see, particularly once the curfew is in place, is real differences in enforcement in different places around the city about how the curfew was used as a tool.

One of the problems we identified in the report is very mixed messaging at the time about the curfew and about how it would be enforced, which really further perceptions that it was being enforced in a way that was unfair. I think in policing, and we talked about this somewhat in the report as well, perception can become reality. If you're talking about the sanitation department, if people think that they're not doing a good job picking up the trash, that's more of a public relations problem, it doesn't affect the future substantive ability of sanitation workers to do a good job picking up your trash.

Policing is really different in that way in that public perceptions of the police and whether they exercise their authority in a way that's fair and legitimate, creates a substantive problem for the effectiveness of policing in the future. I think that's something that the NYPD really has to grapple with in a serious way.

Brian: Listeners, we can take a few phone calls for New York City Department of Investigations commissioner, Margaret Garnett, following up on her report released last month. By the way, we had tried to get the commissioner on the show. We had booked the commissioner on the show. She was very willing to come on a number of times before today, and then little things happened like the insurrection in Washington, around when she was scheduled to come on and other breaking news that will lead me to apologize to you right now on the air for canceling you, I think twice previously before today.

Such is the news and climate we're living in right now, but here, we're finally getting to follow up on this report released last month and we can take a few phone calls for her at 646-435-7280, 646-435-7280. I will ask you in a minute, how much you think the NYPD brass is following up and how much the mayor is following up on the recommendations from the report that the mayor says he accepts.

I want to do this first. You said previously that the tactics that you criticize in the report were reminiscent of abuses by the police from their behavior toward peaceful protestors during the Republican Convention in New York in 2004, and the Occupy Wall Street protestors in 2011. That actually reminded me of an interview that I did with Mayor Bloomberg at the time of that Republican Convention and the protests around it in 2004, and how similar his response was on the morning after the alleged kettling and everything that took place. I guess that was proven, the kettling that took place there, and what Commissioner Shea had to say on the morning of June 5th last year.

I'm going to play these two clips. I think the historical parallels are pretty striking. Here is Commissioner Shea on the morning after the June 4th Mott Haven protest and complaints about the police last year.

Commissioner Shea: They put out posters advertising that they were going to burn things down, that they were going to injure cops, that they were going to cause mayhem. That was the plan, we disrupted the plan.

Brian: The excuse or the rationale was because there was word of potential violence that they had reason to believe might take place at that protest. Now here's 47 seconds of an exchange I had with Mayor Michael Bloomberg the morning after that similar incident, during the 2004 Republican Convention. What about all the arrests yesterday? Protesters are complaining that the police were arresting en masse people who weren't doing anything violent, weren't even blocking traffic, we're in some cases, walking down the sidewalk.

Mayor Bloomberg: Go on the internet. Yesterday was A31. They talked about a day when they wanted to create anarchy and bring the city to its knees. That takes away other people's rights and we are not going to tolerate that. That's not free speech, that's hooliganism. If you want to get arrested, we will accommodate you. It's very easy to do. Just go to a place and challenge the police. I think the amazing thing is just how well the 40-odd thousand police officers working in this city have done, tired and hard-working, and they get strained, and they never lose their cool. They've done a great job

Brian: That's from 2004. Commissioner, what do you think of the parallels there?

Commissioner Garnett: I think this, I think there was an expression in the press conference the day the report came out about deja vu all over again, which I think is true that many of these lessons seem to have to be relearned again and again. We did see quite a few parallels in some of the tactics that were heavily criticized and the subject of litigation after the Republican National Convention and Occupy Wall Street that we saw in use again. I think that's an institutional problem for the NYPD, that as new commissioners come in and new administrations turn over, that there seems to be a collective amnesia about what the lessons of the past should be and what long-term reforms need to be made.

Brian: The story on that pattern in the news organization, The City, emphasizes the NYPD chief of department, Terrence Monaghan had key supervisory roles in both the 2004 incident and June 4th of last year. Did he in particular refuse to learn from the past, in your opinion?

Commissioner Garnett: I don't know that I would single out Chief Monaghan as far as that goes. I think it's certainly true that he has a very long service in the department, and was a defendant in some of the litigation, I understand from 2004, and now as chief of department. I do think that there is a culture in the police department that is determined to continue the same way that things have always been done in certain respects. As far as that culture, is that a problem in the police department? I think yes, it is.

Brian: Laurie in Brooklyn. You're on WNYC with Department of Investigations Commissioner Margaret Garnett. Hi, Laurie.

Laurie: Hi. Thank you for taking my call. I just wanted to say that you were speaking about these incidents happening in May and June. As in November, my son was protesting the day after the election with street rioters in Washington Square on their bikes. 60 kids that night were caught up in Washington Square. They were told to, they were met with police with riot gear. They were told to get off of the the street onto the sidewalk. They were completely guarded against it. He was pushed off his bike. He was thrown to the ground. The cops had no masks on for the COVID.

I just want to state that it's been continuing. My son has a court date February 1st. He's been interviewed by the civil review board. This is continuing on.

Brian: Laurie thank you very much. I'm going to go right to our next caller, Jeff in Winter Terrace, you're on WNYC. Hi, Jeff.

Jeff: Yes, hi. I was going to ask a question about the command structure but it may be a moot question given both of those clips that you just played. It indicated that decisions for violent action by the police department seem to come from the highest level. Putting that aside for a moment, the question that I have is, I'm a former New York City and federal official, and one thing I know from my own years of experiences about command structure, and the question that I have every time I hear about these incidents is at what level of the command structure is a decision made for violent action.

I'm not going to make a judgment call about whether that violent action may be appropriate or not, but I'm very concerned about where those decisions get made. Is it the sergeant, is it the lieutenant, is it somewhere higher up in the command structure? As the previous call dimension, these things happen over and over again. That question constantly comes to my mind, are these department level decisions or somebody out in the field whose adrenaline is pumping?

Brian: Commissioner?

Commissioner Garnett: I think one of the things we found-- it's a very important question Jeff. One of the things that we found in our report is that while some of the issues are decided at the highest levels, in terms of what is the training that's provided, what's in the patrol guide, that one of the problems we saw in the George Floyd protest is really this decentralization. There was a real lack of a coherent strategy and direction about how where the line was, how to facilitate lawful protest while protecting against violence and property destruction. That's partly why you see really such different things playing out in different parts of the city.

If you compare a Staten Island or Queens, which both had a significant number of protests, to some of the incidents we saw in Brooklyn, and Manhattan, and the Bronx, where there was a much higher incident of violent confrontations between the police and protests. A lot of that is attributable to the fact this decentralization and lack of centralized strategy, where more local commanders, usually at the deputy inspector, inspector, chief level, were making those decisions in the field about how to respond. You saw quite different responses in different parts of the city because of that.

Brian: Jeff, thank you for a good question. Is it ever acceptable to do what apparently got done both in the June 4th incident, and the 2004 incident judging from those clips, which is that the police kettled and made mass arrests and in some cases, violent arrests, to members of a peacefully protesting crowd, because they had information that led them to believe that there could potentially be violence coming out of those crowds?

Commissioner Garnett: Brian, and in the United States, we usually don't have pre-crime arrests. I was a prosecutor for a long time, in my former life. Certainly there are laws on the books that are used by prosecutors and the police for criminal conspiracies and the like. I guess some could say, that's a kind of pre-crime arrest. You haven't done the thing yet. You just have agreed to do it and are planning to do it, so I'd hesitate to say that it's never appropriate, but I think there are other tools available to the police that can differentiate between those who are actively planning violence.

To Commissioner Shea's point in that clip, it is true that the police department had useful intelligence that some people involved in planning the Mott Haven protest, might have had violent intentions, but the contrast between the intelligence they had and the actions they took, where, as we've talked about today, hundreds of people were arrested using pretty aggressive techniques in terms of baton use, intense crowd control, and packing crowds into a very small area, and then force necessary to arrest 200-plus people at the same time, just seems really disproportionate to the intelligence they had, even though that intelligence is real. There's just a disproportionality between the concern and the action.

Brian: A few minutes left with New York City Department of Investigations commissioner, Margaret Garnett, following up on her report released last month about excessive force used by the NYPD during some of the racial justice protests last summer. I'm curious how you reacted and I realized nothing that goes on in Washington is in your official jurisdiction as a New York City official, but how did you react seeing the under-policing during the insurrection compared to the over-policing that you reported on by the NYPD?

Commissioner Garnett: Well, I think, I can tell you that I was watching the events of January 6th live on television, while they were happening, and it was quite striking. I think there's a couple of different stories to tell about that, and as the investigations go on, I hope we'll hear more of them, but there's certainly something that's been talked about a lot. You could tell a real under preparation on the part of the Capitol police for the potential for violence and to secure the building. They were very quickly overwhelmed by the crowd, the mob that was intent on gaining access to the Capitol, which was not open to visitors at that time.

It's difficult to fault individual police officers because I think as more and more information has come out, you can see they were really mismatched, and knowing that members of the crowd were armed. They were mismatched and under-prepared, but I think people have raised really legitimate concerns that need introspection by policing and policing professionals about the disparate interactions between a mostly or nearly entirely white crowd at the Capitol and the really racially mixed crowd that participated in the protests this summer in New York and what lessons are to be drawn from that.

Brian: Does your report make any recommendations along those lines in terms of perception of people of color by NYPD members or anything like that?

Commissioner Garnett: Our report didn't specifically focus on the racial questions, although some of our recommendations which are directed towards the NYPD training and planning and policies around protest policing, I think, do get at that situation about the relationship between the police and the communities that they police. Including our recommendation that in drafting a revised policy about policing protests that the NYPD should be actively reaching out to individuals and entities outside the department, civil rights professionals, community organizations and the like.

One of the most significant to me, findings of our report, was the total lack or near total lack of community affairs involvement in the policing strategy at the time. Another piece, I think that goes to your question, Brian, about police community relations is one of our recommendations, is to really change and move to the forefront, the involvement of the NYPD's community affairs functions in thinking about how, what is their strategy, what are their tactics, what is the planning, what is the training for protests? Which are really, a really different kind of policing than the day-to-day crime-fighting that the departments typically engaged in.

Brian: Let me get in one or two more calls before we run out of time. Dan in the East Village, I think he says he went to the insurrection. Dan, you're on WNYC. Hello.

Dan: Hi, there. Yes. No, I went to the insurrection and I learned a few things. To the point that was just being discussed, one thing I realized was, where does one-- who are the leaders of a mob? It's the people at the front. At that boundary, we talk a lot about systemic issues, like Trump followers side with cops, white people don't riot, all these assumptions that were made by law enforcement officials. You can understand that they would make those assumptions, but obviously that's wrong, morally wrong. Operationally, it was completely wrong.

Police know about the mob effect. They know that there was a high incidence of unpredictable actors, so this isn't-- also an operational problem. One of the things I realized is that at the boundary between protesters and police, and this is George Floyd, Occupy, insurrection, all over the place, right up front is where the problems can start or be stopped.

I've seen lots of conversations between protesters and police in different situations where if everyone could hear what they were saying, the whole crowd would chill out and listen. At the boundary, the only options for conflict resolve are riot shields, armor, projectiles and screaming. Is there some way we can try and find a communicative element to work into this thing? Something more than a bull horn that says, "Please disperse or be subject to arrest." I think that's one on-the-ground, figure-this-out thing that we might be able to apply here. One other-- go ahead.

Brian: Go ahead. No, go ahead. You want to do one other question, go ahead.

Dan: I just want to say, there's one is another point I wanted to make. It's easy to not take some of these people and their threats seriously. The online chatter was very teenagery, blustery, and juvenile. Now, what you want to do is just not take that seriously. You won't take the person seriously, you won't take their plan seriously. Like the person who said they're going to go in and kill police and kill lawmakers, and then demand the democratic process. That's obviously ridiculous. Who's going to be on board with that? What happens is, you don't have to take the person seriously, but their actions because of their shifted realities can become crazy, so I call that the whack job factor, and police know about that term also, the whack jobs, the unpredictable person.

There you go. I think the commissioner, that was really the one thing that I'd like to see happen.

Brian: Just to satisfy my curiosity and that of some listeners that I'm sure was raised when you said you went to the insurrection, it certainly doesn't sound like you meant as an insurrectionist, so why were you there?

Dan: No. Well, my answer is exactly that I was prepared to tell people and I did tell some people down there. I'm down here to see what my fellow citizens are thinking and seeing about all of this. I wanted to know who these people would be. When I went to- when I was involved in the Floyd protest, I saw the different types of actors and their relative proportions in different contexts. I wanted to see that here. I went basically to observe.

Brian: Fascinating, Dan. Really interesting set of questions, commissioner.

Commissioner Garnett: Yes. I think, Brian, one of the things that we talk about and certainly, as someone who is interested in these topics, I would encourage them to spend some time with the footnotes in our report and the material cited there about the most current research about interaction between crowd psychology and policing at protest events, and some of the things the caller was talking about, about effective ways for the police to deal with the most violent or most extreme members in a way that gets the moderate members of the crowd to be, in a sense, on the side of the police, rather than being radicalized themselves by the perception of unfair treatment that the police are putting on the group as a whole.

There's really interesting research going on into these questions now, in the policing field and crowd psychology field. This could be a whole 'nother show talking about, how that works in practice, but I think that caller made some good points.

Brian: How responsive do you think the de Blasio administration has been to your report? The mayor said when you issued it last month, that he was accepting it, so did the police commissioner, but then for example, last week on Martin Luther King Day, there was a racial justice protest that began as a number of others, as a march across the Brooklyn Bridge, ending on the Manhattan side, which is right near city hall, which protestors say also ended with unjustified violent mass arrests.

Commissioner says that did turn violent. There were 11 police officers injured, so I'm not in any position to pronounce final judgment on what that was about, on who acted legitimately, but can you compare this to what you found in your investigation of the summer? One aspect of that is the response to the MLK Day march reportedly involved officers from the unit known as the Strategic Response Group, which one of your recommendations to avoid brutality of protest, was for the NYPD to stop relying on that unit to police protests, but there they were again. MLK Day or anything else as indications that the mayor and police commissioner are serious about learning from your report?

Commissioner Garnett: Brian I'm in the same boat as you. I've followed the news certainly about that report, about that incident on Martin Luther King Day, but not in a position to comment on the specifics, but you're right. The mayor and the commissioner have both said they've accepted all the recommendations, are going to implement them. Certainly, many of the recommendations we made are longer term projects that are going to take some time.

In the structure of our reports, generally the agency, and this is one of our last recommendations, has 90 days to respond in a formal way, to tell us and the public what they're doing to implement the recommendations that they've agreed to accept. Certainly, DOI has an ongoing role in tracking our recommendations, and providing transparency around how they're being implemented.

This isn't a one-shot deal for us. We're going to be following up to track how they're being implemented. I think what you're saying is a legitimate concern that the prominent role of SRG at those protests suggests that this is not a quick fix. It's going to be a longer road if the NYPD is serious about implementing our recommendations.

Brian: Last question then, Mayor de Blasio two weeks ago released a new discipline matrix, he calls it, for specific acts of police misconduct to be met with specific kinds of discipline. It's my understanding that there's no specific discipline in the matrix for failures of leadership like you found in the heart of your report. Is there no meaningful mechanism to this day for holding people in positions like commissioner, or chief of department accountable for their failures that result in police violence?

Commissioner Garnett: You know, Brian, ultimately that the way the system works in New York City is that that accountability rests with the mayor. It's the mayor's decision as to who heads city agencies, as well as the senior leadership in those agencies while directly answerable to the commissioner, ultimately those are the people that are implementing the mayor's policies. I think the question of accountability for senior leadership at any city agency is really going to rest with the mayor.

Brian: The New York City Department of Investigations commissioner, Margaret Garnett. Thank you for your time today and your thoughtfulness.

Commissioner Garnett: Thank you so much, Brian. Any time.

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