[Infowarrior] - Judge Restricts New York Police Surveillance

[Richard Forno]

February 15, 2007
Judge Restricts New York Police Surveillance
By JIM DWYER
http://www.nytimes.com/2007/02/15/nyregion/15cnd-police.html?ei=5090&en=f59d
f17f90978527&ex=1329195600&partner=rssuserland&emc=rss&pagewanted=print

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 today¹s 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.

³There was no reason to suspect or anticipate that unlawful or terrorist
activity might occur,² he wrote, ³or 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.²

While he called the police conduct ³egregious,² 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 ³a model of clarity.²

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.¹s
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 Haight¹s 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.

³This was a major push by the corporation counsel to say that the guidelines
are nice but they¹re yesterday¹s news, and that the security establishment¹s
view of what is important trumps civil liberties,² Mr. Eisentstein said.
³Judge Haight is saying that¹s just not the way we¹re doing things in New
York City.²

A spokesman for Police Commissioner Raymond W. Kelly referred questions
about the ruling to the city¹s 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 Department¹s activities.

³There is no discernible justification for the apparent disregard of the
Guidelines² 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

³Any future use by the N.Y.P.D. of video and photographic equipment during
the course of an investigation involving political activity² 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.

³This 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,² Judge Haight wrote. ³It 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.²

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.

³I¹m looking forward to a deeper and more serious exploration of how and why
this surveillance has been conducted,² 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 judge¹s decision ratified the
group¹s basic rights to free speech. ³We¹re gratified that Judge Haight
found that the police shouldn¹t engage in surveillance of homeless New
Yorkers and their supporters when they¹re engaged in peaceful, lawful
political protest,² Mr. Markee said.

The Police Department¹s 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 ³attend any event open
to the public, on the same terms and conditions of the public generally.²

But in today¹s ruling, he said that permission ³cannot 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.²

The judge said he bore some responsibility for misinterpretation of the
guidelines.

³I 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,² he wrote.