A New York Police Department officer stood trial this week for his alleged role in a chaotic scene at a Black Lives Matter protest that resulted in two Black elected officials getting pepper sprayed.
The case is one of hundreds stemming from the 2020 demonstrations following the killing of George Floyd that have been investigated by the city’s Civilian Complaint Review Board, or CCRB, a police watchdog agency. It raises questions about what actions officers can take to disperse a crowd, and whether officers can use or threaten force against peaceful protesters.
The trial focuses on an incident from May 29, 2020, when State Sen. Zellnor Myrie and then-State Assemblymember Diana Richardson were among the thousands who gathered outside the Barclays Center in Brooklyn to protest police violence. Body camera footage from that day shows them holding hands in a line of people in the street. It also shows police shoving Richardson with a bike and spraying both Richardson and Myrie with pepper spray. Moments later, Myrie’s wrists were zip tied, and he was briefly detained.
Assistant Deputy Commissioner Josh Klieman oversaw the trial, which took place Wednesday. He will now review the evidence and make a recommendation to the police department. Commissioner Keechant Sewell will then decide whether to accept his recommendation.
The CCRB was unable to identify or investigate some of the officers involved in the incident. But they have charged Officer Michael Kovalik with two counts of abuse of authority, for supposedly holding his can of pepper spray in a way that threatened Myrie and others in the crowd. Kovalik has maintained he does not believe he was one of the officers who sprayed Myrie and Richardson, but rather that he used the pepper spray earlier on and then kept the canister in his hand while performing other tasks in a quickly evolving situation.
The officer’s attorney, Michael Martinez, said at trial that his client was doing what any reasonable officer would have done in an “increasingly hostile” situation, as people in the crowd threw bottles, set off firecrackers and remained in the middle of the street even as a recording repeatedly told them to clear out.
Martinez noted it is illegal to block a roadway. Even though Myrie, Richardson and others were protesting peacefully, he argued, they were still breaking the law.
“He’s allowed to be there,” Martinez said of the state senator during his closing arguments. “But he took it too far.”
Myrie doesn’t think so. On the witness stand, he testified that he went out of his way to avoid a confrontation with police. His goal, he said, was to be a “peacemaker” between his constituents and law enforcement.
Myrie said he texted a police chief ahead of time, to let him know he would be at the protest, and wore a neon T-shirt with the words “Senator Myrie” printed on the back to identify himself. As he held hands with a line of people in the street, video shows, he kept them in the air, where officers could see them.
But that didn’t stop police from spraying and arresting him.
“It’s hard to capture in words how this made me feel then, how it makes me feel now. It’s very difficult for me to watch this video,” Myrie said on the witness stand, as he reviewed body camera footage from the protest.
At one point, the state senator paused his testimony to take off his glasses and wipe his eyes with a tissue. He said he had never had trouble with police before that day, until he went to a protest against police brutality.
“I’m still dealing with the emotional and mental trauma of this experience,” Myrie said.
But during the proceedings, there was a dispute about what prompted his altercation with police. Myrie and Richardson have filed a federal lawsuit against the city, former Mayor Bill de Blasio, former NYPD Commissioner Dermot Shea and several other department employees in which they claim that officers sprayed and assaulted them after they had already started to retreat.
Martinez, Officer Kovalik’s attorney, challenged that version of events. He said the body camera footage appeared to show the interaction taking place just moments after Myrie and Richardson were filmed standing in the middle of the street, holding hands. After Myrie hesitated to answer some questions about the chronology, citing his open lawsuit, Martinez accused him of being dishonest for his own personal gain.
“Who are you going to believe?” Martinez asked the commissioner overseeing the trial. “Me or your lying eyes?”
Attorneys representing Myrie and Richardson declined to comment on the pending legal matter, as did the NYPD. The city’s legal department did not respond to a request for comment. Richardson did not testify at the trial.
Andre Applewhite, a prosecutor for the CCRB, did not deny that protesters were angry and blocking traffic. But he said emotions were running high because they were in the street to protest Floyd’s murder. Myrie, he said, was being “passively resistant” at most. And he worried what message it would send if officers use or threaten to use force against public officials exercising passive resistance to protest police brutality.
The NYPD patrol guide states that members of the service should not spray people who are “passively resistant,” meaning they are not actively resisting or assaulting police. It also instructs officers to avoid discharging pepper spray “indiscriminately over a large area for disorder control,” except for those who are specially trained.
Officer Kovalik testified that he has worked for the NYPD for 13 years, and that he has spent the past five years in the department’s Strategic Response Group, which does undergo special training to respond to major events, like active shooter situations and protests.
Kovalik’s record shows only one other allegation against him, from a 2013 case that resulted in discipline, for abuse of authority related to a search. That means the two additional abuse of authority charges against him for threatening force could result in between five and 20 penalty days each, according to the NYPD disciplinary matrix.
Of the 321 complaints related to the 2020 protests that fell within the CCRB’s jurisdiction, only 87 have resulted in substantiated charges against officers, as of May 11. At that time, the police department had finalized 44 cases, according to the CCRB. Just 18 officers out of hundreds identified in complaints have been disciplined.