The NYPD officer who ripped down the face mask of a Brooklyn protester and pepper sprayed him in the face in the early days of the George Floyd protests in New York City — and who later bragged to colleagues about doing so — will not face discipline for the use of force, THE CITY has learned.
Yoav Gonen, The City
Republished with Permission: The Roosevelt Island Daily News
Instead, Officer Michael Sher was docked 10 vacation days for failing to file the proper paperwork about his spraying of protester Andrew Smith and others and for not informing his supervisor about his actions, according to a May 2022 administrative ruling newly posted online.
While the case was prosecuted by the NYPD, Sher is also one of 65 police personnel whom the Civilian Complaint Review Board separately found to have used significant unnecessary force against protesters during the spring of 2020 in the wake of the police killing of Floyd in Minnesota.
Of the 14 serious use-of-force CCRB cases with known disciplinary outcomes, half ended with the NYPD, which has the final say on officer discipline, imposing no penalty — including two officers who avoided potential discipline by retiring. The highest penalty in any of the resolved cases was the loss of 10 vacation days, in three cases, disciplinary records show.
Sher used pepper spray against Smith and five other protesters in the span of about 10 minutes on May 30, 2020, as officers were escorting a police cruiser holding an arrested protester through a huge crowd in Flatbush.
A video of the encounter shows Sher using his fist to push back Smith, who had both arms raised up in the air. In one sudden motion, Sher then batted down Smith’s sunglasses and pulled down his face mask before shooting pepper spray directly in his face.
The viral video drew widespread condemnation, and prompted the Brooklyn district attorney to investigate for possible criminal prosecution.
No criminal charges were ever filed against Sher, and the administrative judge found no reason to penalize him for using force against Smith.
“The department has failed to prove that respondent’s deployments of OC [pepper] spray were objectively unreasonable,” wrote Assistant Deputy Commissioner of Trials Josh Kleiman. “The tribunal further finds that respondent’s deployments of OC spray were not gratuitous or arbitrary,” he added. “As to each person sprayed, respondent first warned them multiple times to step back, attempted to push them back, and directed the spray at the individual in a controlled fashion.”
Kleiman said while he would have preferred for Sher to warn people before pepper-spraying them, that not doing so wasn’t grounds for discipline.
Smith filed a lawsuit against Sher, the police commissioner and then-Mayor Bill de Blasio last year saying that not only had Sher violated his rights to free speech — but that he had also racially discriminated by targeting Smith, who is Black.
Kareem R. Vessup, an attorney for Smith — now 31 and living in Philadelphia — said that both the Brooklyn DA’s office and the NYPD had failed to secure justice for his client.
“This decision ultimately says, ‘We’re OK with this behavior on the part of law enforcement,’” said Vessup. “That only serves to further erode the confidence of certain communities in our law enforcement apparatus as it currently exists.”
Asked about the disciplinary outcome Monday, Mayor Eric Adams said it was the first he had heard of it but that he planned to talk to NYPD commissioner Keechant Sewell about her decision.
“There were probably three incidents that I witnessed during the protests that were horrific — that was one of them,” Adams said at an unrelated press conference at City Hall, where he emphasized that most officers had responded well during the protests. “That was the poster child of what destroyed, I believe, the good work that many of those officers carried out.”
‘Happy to Be Alive’
At the administrative trial, Sher painted a portrait of a “chaotic” crowd that vastly outnumbered the police and that put him in “survival mode” that day.
He claimed to see protesters throwing stones and rocks, a day after a police vehicle had been hit with a Molotov cocktail.
“At that particular moment, I honestly thought that this is it; I’m not going to make it out alive,” he said, according to the judge’s report.
Sher said he pulled off Smith’s eyewear, which he referred to as “goggles,” because he had learned in training that pepper spray is most effective in the eyes — and he didn’t think it would have an impact on Smith otherwise.
When asked why didn’t fill out the proper paperwork or inform his supervisor, even the day after the incidents, Sher answered “that he was just happy to be alive,” the report says.
Kleiman’s ruling notes that none of the videos submitted as evidence in the trial showed evidence of protesters behaving violently or throwing objects.
But he points out that the video only depicts a portion of the actions that occurred that day.
Sher was also cleared of charges that he failed to get medical attention for Smith, after successfully arguing that it had been too dangerous for him to stop and separate himself from his colleagues.
Sher’s attorney, Stuart London, said the protesters Sher targeted that day had each posed a threat, which is why Sher wasn’t disciplined for that behavior.
“Not only was it not criminal, but there was no misconduct,” he told THE CITY.
‘I Want to Kick It in the Sewer’
Sher meanwhile pleaded guilty at the administrative trial to separate charges that were filed against him over an incident that occurred later that same day in May 2020, but hadn’t been previously made public.
At 10:30 p.m., Sher found a cell phone in the middle of an active roadway near Church and Flatbush avenues, according to body camera footage referenced in the trial.
As another officer approached to pick the device up, Sher said, “No, I want to kick it in the sewer, man. I want to kick it in the sewer,” the administrative report says.
The other officer backed away and Sher attempted to kick the phone in the sewer, but exclaimed, “Ah fuck, it didn’t get there.”
So, he picked the phone up and dropped it into a sewer grate.
Soon after, Sher was seen in the video telling a group of officers that the phone fell in the sewer.
“The f-cking fat female with that younger chick,” he told one officer, “it was their phone.”
Despite pleading guilty and saying he was “stupid” and had “no defense” for that conduct, Sher claimed he had no recollection of it, the report said.
Kleiman said Sher deserved a significant penalty over the phone incident because of his prior disciplinary history.
For the phone drop, he hit Sher with 30 days unpaid suspension, the loss of 15 vacation days, and 1-year probation — during which any infraction can lead to termination.
That was on top of the 10 days Sher lost for not reporting his deployment of pepper spray.
In 2017, Sher was punished for disobeying numerous orders from supervisors, letting his girlfriend use his police parking placard, and covering up his license plates with plastic that blocks toll readers and photo tickets. He was also found guilty at an administrative trial of lying about returning a parking permit, the records show.
THE CITY is an independent, nonprofit news outlet dedicated to hard-hitting reporting that serves the people of New York.