Relations between local press and the NYPD had deteriorated before ‘Occupy Wall Street’ protest, lawyers say

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Police in Lower Manhattan. (warmsleepy via flickr)
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Weeks after New York police first came under fire for alleged "abuses" of First Amendment freedoms during the apex of the Occupy Wall Street protests here in mid-November, the NYPD's handling of the press remains a topic of scrutinty.

On Tuesday, congressman Jerrold Nadler called on U.S. Attorney General Eric Holder to "initiate an investigation into law enforcement activities surrounding the Occupy Wall Street protests," including the blocking of journalists during the Zuccotti Park eviction, which Mayor Bloomberg took coolly. And in his Village Voice column this week, titled "Bloomberg and Kelly bust the press," Nat Hentoff billed journalists' "treatment during the Occupy Wall Street raid" as "a disgrace to this city’s history."

But the Occupy Wall Street incidents, which were addressed in a Nov. 21 letter to NYPD brass co-signed by 13 news organizations, and again in a meeting two days later between Police Commissioner Ray Kelly and representatives from several of those outlets, were actually only a recent development in a longer pattern of police-press showdowns stretching back at least to the summer, before Occupy Wall Street was a glimmer in Bloomberg's eye.

Within the past year, Mickey Osterreicher, general counsel for the National Press Photographers Association, began noticing an uptick in complaints from photojournalists—both in New York and other cities—claiming police had interfered with their work.

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"I've been dealing with this issue more over this past year than anytime before," he told Capital. "It just seemed like the situation with the police was getting worse. Many of the credentialed members [of the media] felt almost better off not displaying their credentials, or being very low key and looking like Joe Public rather than to be out there with actual credentials that could sometimes lead to them being identified for specific targeting."

Matters came to a head on July 13 when police raided the Brooklyn home of Levi Aron and arrested the 35-year-old Kensington resident in connection with the grisly murder and dismemberment of an eight-year-old boy.

Journalists descended on the crime scene to cover the story, but were restricted to a "press pen" behind police barricades up the block. Ordinary civilians, on the other hand, were permitted to traverse the street freely.

"This whole idea of penning is something we don't like, obviously," said George Freeman, vice president and assistant general counsel of The New York Times. "We felt in that instance it was done for a purpose that wasn't warranted."

So Freeman, Osterreicher, Daily News general counsel Anne B. Carroll, and WABC attorney Townsend Davis arranged a meeting in August with the NYPD's Deputy Commissioner for Public Information, Paul Browne. The result was an agreement by the NYPD to do more training in the area of police-press relations, said Freeman, and an agreement by the news organizations to immediately notify Browne of any further incidents or concerns they might have.

They did so when Hurricane Irene hit and Daily News staffers sought to confirm whether they would be granted access to one of the city's evacuation zones in Lower Manhattan, where the Daily News is headquartered. (Its offices were literally within the evacuation zone.)

The inquiry did not yield a response.

Months later, after Osterreicher heard reports that journalists had been barred from observing the early-morning police raid on Zuccotti Park on Nov. 15, that several had been arrested while covering the ensuing melee later that morning, and that others had allegedly been roughed up by rank-and-file officers, he decided it was time to take action.

He reached out to Freeman to help draft a message to Browne.

"We decided it would be much better to put it on Times stationery," he said.

They started with the core group that had attended the August meeting on the Levi Aron incident. But they wanted to get other news outlets on board, too, so they went to The New York Post, WNBC, WCBS, Dow Jones, the Associated Press, Reuters and several others, each of whose attorneys were happy to contribute their signatures.

There was, however, at least one conspicuous ommission: Bloomberg News, which also had boots on the ground during the Occupy Wall Street protests.

The absence of Mayor Bloomberg's media outlet from a blistering letter to his police force did not go unnoticed in the Bloomberg newsroom, where there were whispers as to why the company hadn't signed on. It turns out they were never asked to do so, according to several people familiar with the matter, not for any particularly controversial reason, but because of a mere oversight as the letter was being drafted. A Bloomberg News spokesman declined to comment on whether the company would have signed the letter had they been approached, or whether it shared its competitors' views that journalists were unreasonably restricted and mistreated by police while attempting to cover the demonstrations.

The letter, news of which was first reported here, turned out to be effective in that it led to a meeting two days later with Kelly, Paul Browne, Freeman, Osterreicher, Daily News deputy editor Arthur Browne (no relation to Paul), Carroll (the News general counsel), and attorneys from the Post and the Associated Press. Shortly afterward, Kelly disseminated an internal message throughout the ranks of his department notifying officers that they would face disciplinary action if they unreasonably interfered with the press.

"Supervisors may restrict access to an incident scene only in those exceptional circumstances where it is absolutely necessary for law enforcement or public order purposes," the message said.

It was "a good first step," Freeman told The Huffington Post. 

But if subsequent incidents are any indication, the NYPD still has a ways to go in making nice with the media.

Two days after Kelly's warning, police interfered with Daily News photographer Joe Marino, pulling his press card while he covered a Thanksgiving fire in Park Slope, said Osterreicher.

As we reported on Dec. 1, three journalists were barred from covering an Occupy Wall Street-related protest outside an Obama fundraiser in Midtown, prompting New York City Public Advocate and 2013 mayoral candidate Bill de Blasio to fire off a statement declaring he was "deeply troubled by last night’s decision to prevent reporters from covering demonstrations outside an event attended by President Obama."

De Blasio also called on the Bloomberg Administration "to disclose who made decisions regarding the obstruction of reporters last night and on November 15th, as well as to clearly state City policy regarding press access to events of public importance and submit it for review to a select committee of the New York Press Association."

Additionally, there have been a "couple other incidents" subsequent to Kelly's memo that Osterreicher said he is "looking into."

Browne did not respond to a request for comment. But Osterreicher said the police department has been more "responsive" since that Nov. 23 meeting.

"I think a dialogue has been opened up and I hope that continues," he said. "It's going to take repeated messages and training to make them realize they don't get to decide what is and isn't news."

Correction: Arthur Browne did not attend the August meeting, as reported here earlier.