Revisions to the Procedure

Upon receipt of all of the comments, the NYPD made revisions to the draft Procedure . The Procedure was then shared with the working group of Department subject matter experts, including representatives from the Police Commissioner's office,Chief of Department ' s office, Deputy Commissioner Strategic Initiatives,and the Chief of Operation's office to identify and mitigate potential conflicts, concerns,and otherissues.

The Department reviewed and considered every recommendation and point of view, despite the conflicts between many of the comments received from the public. In some cases, the recommendations were outside the scope of the Procedure (e.g . , permits, ban SRG from demonstrations, geofense warrants, etc . ) or were covered by other Department procedure's (e.g., excessive force, use of pepper spray, providing name and shield number, etc.). In others, the Department disagreed with the recommendation (e.g., "(i]ncludes , but is not limited to " language in

' 'Violent Behavior' ' definition, do not solicit public Input, permit only one path i nto and out of demonstration , etc.). One comment in particular suggested that New York Penal Law § 70.02 contained every offense which could be considered violent. Adoptingsuch an interpretation would discriminate against victims of misdemeanor violent acts such as assault. Another comment suggested that violent behavior should be expertly defined as to inform the public regarding behavior they should not engage in at a demonstration , however, the New York State Penal Code,New York City Administrative Code , and several other codified bodies of law instruct the public regarding action which they should not take during demonstrations . Overall , several important changes were made between the draft released for public comment andthe version of the Procedure effective August 31,2021.

Some of the revisions to highlight include :

• The definition of "Violent Behavior" was revised to remove "cause public unrest" and "prevent law enforcement from maintaining the peace"
• New note which provides that protest liaisons may not wear civilian attire
• Revision of de-escalation steps to provide de-escalation will be attempted, if feasible,when encountering violent subjects
• New step providing dual purpose disorder control/scooter helmet may be worn at discretion if it is reasonable to believe that conditions warrant
• New additional data statement which provides that the Procedure does not limit the authority of Department personnel to effect arrests or take other enforcement action for unlawful acts, in light of the frequent exercise of discretion at demonstrations
• Removal of the requirement of protest liaisons to document attempted contacts with First Amendment activity leaders and a new additional data statement reminding Department personnel that the Handschu guidelines must be complied with
• Some duties were reorganized to fall under the incident commander

Certaincommentsaredifficult to implement because they are challengingto quantify or would be otherwise difficult to implement. For instance, the Procedure instructs Department personnel to balance the right of free expression against the need for public safety and some comments inquired as to how this balance would be achieved. Since First Amendment activities can vary greatly in circumstances, such an inquiry can likely only be answered during each First Amendment activity on a case by case basis. Another comment suggested the Procedure should address a manner to keep agitators out of First Amendment activities. Implementing such a step is difficult since , most often, there is no concrete way to know who is or is not an agitator before they join the activity and the Department would potentially be infringing on the alleged agitators First Amendment rights.

The comments received from all participants in this process were valuable in reaching the final version of the Procedure . The Department believes that the Procedure represents a fair and reasonable process for responding to First Amendment activities . The Procedure reflects the Department's commitment to support the right of people to engage in First Amendment activities, in furtherance of its mission to serve the community and provide public safety.