Judge Restricts New York Police Surveillance
NY Times | February 16, 2007
In a rebuke of a surveillance practice greatly expanded by the New York Police Department after the Sept. 11 attacks, a federal judge ruled today that the police must stop the routine videotaping of people at public gatherings unless there was an indication that unlawful activity may occur.
Nearly four years ago, at the request of New York City, the same judge, Charles S. Haight Jr., had given the police greater authority to investigate political, social and religious groups.
In today's ruling, however, Judge Haight of Federal District Court in Manhattan found that by videotaping people who were exercising their right to free speech and breaking no laws, the Police Department had ignored the milder limits he had imposed on it in 2003.
Citing two events in 2005 — a march in Harlem and a demonstration by homeless people in front of the Upper East Side home of Mayor Michael Bloomberg — the judge said the city offered scant justification for videotaping the people involved.
“There was no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens and the signs by which they hoped to convey their message to a public official.”
While he called the police conduct “egregious,” Judge Haight also offered an unusual judicial mea culpa, taking responsibility for his own words in a 2003 order that, he conceded, had not been “a model of clarity.”
The restrictions on videotaping do not apply to bridges, tunnels, airports, subways or street traffic, Judge Haight noted, but are meant to control police surveillance at events where people gather to exercise their rights under the First Amendment.
"No reasonable person, and surely not this court, is unaware of the perils the New York public faces and the crucial importance of the N.Y.P.D.'s efforts to detect, prevent and punish those who would cause others harm," Judge Haight wrote.
Jethro Eisenstein, one of the lawyers who challenged the videotaping practices, said Judge Haight's ruling would make it possible to contest other surveillance tactics, including the use of undercover officers at political gatherings. In recent years, police officers have disguised themselves as protesters, shouted feigned objections when uniformed officers were making arrests, and pretended to be mourners at a memorial event for bicycle riders killed in traffic accidents.
“This was a major push by the corporation counsel to say that the guidelines are nice but they're yesterday's news, and that the security establishment's view of what is important trumps civil liberties,” Mr. Eisentstein said. “Judge Haight is saying that's just not the way we're doing things in New York City.”
A spokesman for Police Commissioner Raymond W. Kelly referred questions about the ruling to the city's lawyers, who noted that Judge Haight did not set a deadline for destroying the tapes it had already made, and that the judge did not find the city had violated the First Amendment.
Nevertheless, Judge Haight — at times invoking the mythology of the ancient Greeks and of Harold Ross, the founding editor of The New Yorker — used blunt language to characterize the Police Department's activities.
“There is no discernible justification for the apparent disregard of the Guidelines” in his 2003 court order, the judge said. These spell out the broad circumstances under which the police could investigate political gatherings.
Under the guidelines, the police may conduct investigations — including videotaping — at political events only if they have indications that unlawful activity may occur, and only after they have applied for permission to the deputy commissioner in charge of the Intelligence Division.
Judge Haight noted that the Police Department had not produced evidence that any applications for permission to videotape had ever been filed.
Near the end of his 51-page order, the judge warned that the Police Department must change its practices or face penalties
“Any future use by the N.Y.P.D. of video and photographic equipment during the course of an investigation involving political activity” that did not follow the guidelines could result in contempt proceedings, he wrote.
At monthly group bicycle rides in lower Manhattan known as Critical Mass, some participants break traffic laws, and the police routinely videotape those events, Judge Haight noted. That would be an appropriate situation for taping, he said, but police officials did not follow the guidelines and apply for permission.
“This is a classic case of application of the guidelines: political activity on the part of individuals, but legitimate law enforcement purpose on the part of the police,” Judge Haight wrote. “It is precisely the sort of situation where the guidelines require adherence to certain protocols but ultimately give the N.Y.P.D. the flexibility to pursue its law enforcement goals.”
Gideon Oliver, a lawyer who has represented many people arrested during the monthly bicycle rides, said he is troubled by the intensive scrutiny of political activities.
“I'm looking forward to a deeper and more serious exploration of how and why this surveillance has been conducted,” Mr. Oliver said.
In the past, the Police Department has said that it needed intelligence about the Critical Mass rides in order to protect the streets from unruly riders.
Patrick Markee, an official with another group that was cited in the ruling, the Coalition for the Homeless, said the judge's decision ratified the group's basic rights to free speech. “We're gratified that Judge Haight found that the police shouldn't engage in surveillance of homeless New Yorkers and their supporters when they're engaged in peaceful, lawful political protest,” Mr. Markee said.
The Police Department's approach to investigating political, social and religious groups has been a contentious subject for most of four decades, and a class-action lawsuit brought by political activists, including a lawyer named Barbara Handschu, was settled in 1985. Judge Haight oversees the terms of that settlement, which are known as the Handschu Guidelines, and which he modified in 2003.
At the time, Judge Haight said that the police could “attend any event open to the public, on the same terms and conditions of the public generally.”
But in today's ruling, he said that permission “cannot be stretched to authorize police officers to videotape everyone at a public gathering just because a visiting little old lady from Dubuque (to borrow from The New Yorker) could do so. There is a quantum difference between a police officer and a little old lady (or other tourist or private citizen) videotaping or photographing a public event.”
The judge said he bore some responsibility for misinterpretation of the guidelines.
“I confess with some chagrin that while the text of this opinion and its implementing order, read together, may not be as opaque as the irritatingly baffling pronouncements of the Oracle at Delphos, they do not constitute a model of clarity,” he wrote.
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