In March, a federal judge in Manhattan approved changes strengthening court-ordered guidelines governing policing of political and First Amendment activity by the New York City Police Department (NYPD). Judge Charles S. Haight Jr.’s approval of Revised Handschu Guidelines recovers some features weakened when he “relaxed” the longstanding Handschu Guidelines in 2003 following the September 11th attack on the World Trade Center.
The changes came in a “joint settlement process” of an enforcement motion in Handschu v. Special Services Division, a class action which in 1985 created rules regulating NYPD spying on political and First Amendment activity, and Raza v. City of New York, a case filed in Brooklyn federal court in June 2013 by three Mulsim religious and community leaders, two mosques and a charitable organization subjected to the NYPD’s unconstitutional religious profiling program. The proceedings arose from disclosure in an August 2011 Associated Press investigative series that the NYPD operated a “Muslim Surveillance Program”.
“Handschu continues to be a unique mechanism for oversight of investigations of political and religious activity in New York City. There is no other case like it remaining in the United States today and it provides a model for attempting to control excesses in policing First Amendment activity,” commented NLG attorney Martin Stolar, who with Jethro Eisenstein filed the Handschu case in 1971.
An initial January 2016 agreement settling both Muslim surveillance court proceedings restored some of the civilian oversight eliminated by the Handschu court in 2003. It also included clarification that race, religion and ethnicity cannot be factors motivating investigations, which must be built on factual information; set forth presumptive time limits on investigations where none had existed before; and required that police investigative techniques take account of their potential effect on political or religious activity. (Guild Notes, Spring 2016, pg. 18).
However in late October 2016, following three days of public comments, Judge Haight rejected the initial settlement. He found the proposed revisions to the Handschu Guidelines did not provide enough oversight of an agency he said had shown a “systemic inclination” to ignore rules protecting free speech and religion, where the NYPD had become “accustomed to disregarding” court orders. 2016 WL 7048839. The New York Times observed “[b]y rejecting the deal, Judge Haight…made a tacit acknowledgement that he had gone too far” in relaxing the Handschu rules in 2003, when the NYPD asked for greater flexibility to address the threat of terrorism.
Revisions to the agreement strengthened the role of a civilian charged with monitoring NYPD compliance with the court-ordered rules, and the judge found the “revisions…adequately address the concerns which prevented the Court from approving the Initial Settlement Agreement”. 2017 WL 1293005.
The Handschu Guidelines are the last remaining court-ordered controls on local police political surveillance stemming from lawsuits brought in the 1970’s, most by NLG lawyers, to challenge unconstitutional activities of local police spy units activists referred to as “Red Squads”. The units used infiltrators and COINTELPRO methods to disrupt legal political advocacy. In New York City alone, the NYPD’s Red Squad maintained non-criminal dossiers on hundreds of thousands of individuals and groups, including the Black Panthers and the Young Lords. An undercover NYPD Red Squad agent was one of Malcolm X’s bodyguards on the day he was assassinated. Since the guidelines took effect in 1986, Handschu enforcement actions have addressed scores of police violations, including custodial interrogation of #BlackLivesMatter protesters (NY Times 5/15/15, pg A24) and anti-war protesters in 2003 (288 F.Supp.2d 411); photosurveillance of lawful protests (Cuba solidarity NY Times 2/10/91, pg 44), protests of police killing of Amadou Diallo (2000) and blanket photosurveillance of lawful protest (2008 WL 515695); and taping broadcasts of African American public figures by an NYPD “Black Desk” in 1987 (737 F.Supp. 1289).
The case is named after lead class-plaintiff, Barbara Handschu, a former national NLG Vice President and an Attica lawyer. Handschu class counsel include former NLG-NYC presidents Martin Stolar, Jethro Eisenstein and Franklin Siegel, NYU law professor Paul Chevigny and Arthur Eisenberg of the NYCLU. The 11 Raza case counsel include Hina Shamsi of the ACLU, Ramzi Kassem of CUNY Law School’s clinic, Beth Haroules of the NYCLU and three attorneys from the law firm of Morrison & Foerster LLP. ■