Police Win Battle to Remove Restrictions on Surveillance
By Tom Perrotta
New York Law Journal
Southern District Judge Charles S. Haight Jr.
A federal judge has agreed to delete nearly all provisions of a consent decree that governs surveillance of political groups, as long as the New York City police department adopts internal guidelines similar to those of the FBI by next week.
In a ruling issued Tuesday, Southern District Judge Charles S. Haight Jr. said the department had clearly shown that the 18-year-old decree was outdated and could stifle investigations into terrorist plots.
He also rejected arguments by civil liberties attorneys that the department's modifications should be denied because they were not "suitably tailored" to changed circumstances in the city since the Sept. 11 terrorist attacks.
Provisions of the decree, known as the Handschu Guidelines, require police officers to obtain specific information of criminal activity before they can investigate a political group.
Only officers in the Public Security Section (PSS) are able to conduct such investigations, and their activities must be approved by a three-member panel, known as the Handschu Authority. Violating the decree subjects the city to contempt proceedings.
Since last September, the police department's deputy commissioner of intelligence, David Cohen, a 35-year veteran of the Central Intelligence Agency, has taken the lead in arguing that the guidelines interfere with law enforcement tactics that are essential in terrorism investigations. These include infiltrating political groups with undercover officers, collecting information about people concealing potential terrorist plots, and sharing that information with other federal and local law enforcement agencies.
In court papers, the department has sought to remove all restrictions in the Handschu Guidelines other than those already enumerated in the U.S. Constitution. The department has contended that rather than having to prove criminal activity before beginning an investigation, officers should only need to show that an investigation served a law enforcement purpose.
The police department's proposed changes immediately drew opposition from civil liberties attorneys who represented plaintiffs in the class-action lawsuit that resulted in the Handschu decree. They claim that Handschu creates a low standard that does not hamper terrorism investigations, and that eradicating the decree would be a setback for the free speech rights of New Yorkers.
On Tuesday, Judge Haight agreed that the NYPD's response to Sept. 11 was reasonable and warranted. He wrote in Handschu v. Special Services Division, 71 Civ. 2203, that "the Constitution's protections are unchanging, but the nature of public peril can change with dramatic speed, as recent events show." He added: "The Handschu Guidelines approved in the 1985 consent decree addressed different perils in a different time."
Judge Haight said that attorneys contesting the proposed modifications had offered "no evidence . . . to rebut Deputy Commissioner Cohen's testimony that the Handschu Guidelines' criminal activity requirement, limitations on the collection, retention and dissemination of information, and the restriction of NYPD intelligence gathering efforts to a single unit [the PSS] . . . severely handicap police efforts to gather and utilize information about potential terrorist activity."
Gail Donoghue, special assistant to Corporation Counsel Michael A. Cardozo, described the ruling as a "major victory" for the city. She added that her office did not plan to appeal any aspect of it.
"It's good to know that the Police Department can use judgment in tracking down things that are not clearly criminal, but certainly suspicion," Donoghue said. She said the city had no qualms about the fact that the case would remain under Judge Haight's jurisdiction.
In a statement, Police Commissioner Raymond W. Kelly said, "This ruling removes restrictions from a bygone era and will allow us to more effectively carry out counter-terrorism investigations."
Jethro M. Eisenstein of Profeta & Eisenstein, one of several civil liberties attorneys who handled the case, said having internal guidelines was better than no rules at all, but still fell short.
"What's missing, and what's going to disappear, is the process [of seeking approval] that we constructed in the Handschu Guidelines, which became a part of the culture of the police department," Eisenstein said. "That process was incredibly valuable because it meant that officers -- day in and day out -- had to articulate why they were engaging in an investigation."
Eisenstein said that he and other lawyers working with him will decide whether to appeal the ruling, and on what grounds, after they have seen the police department regulations.
Appropriate Remedy
Central to Judge Haight's analysis was Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, a 1992 U.S. Supreme Court ruling holding that a party seeking to modify a consent decree must show that a significant change in fact or law warrants revision. It also held that the proposed modification must be suitably tailored to the changed circumstances.
Both parties in the Handschu matter agreed that circumstances have changed since Sept. 11, 2001, and Judge Haight ruled that the remedy was appropriate, even considering a footnote in Rufo that says proposed modifications should not strive to rewrite a decree to the constitutional floor.
The modified Handschu decree, the judge said, would contain protections beyond the Constitution because the Handschu Authority would still exist, though it would only investigate claims of abuse filed by citizens.
Also, he said, the NYPD's promise to include the FBI guidelines created a benchmark for measuring the tactics of officers, even though those guidelines would create no specific rights for citizens. The judge noted that although the FBI guidelines allow a full range of preliminary inquiries, they do not favor full investigations and information gathering unless there is a "reasonable indication" that a crime is going to be committed.
At one point in his ruling, Judge Haight noted that there was a "surface appeal" to the argument that Handschu did not interfere with terrorism investigations.
Commissioner Cohen's declarations, he said, "tend on occasion to wander off the reservation," and contemplate "conduct such as renting apartments, leasing cars, or taking flying lessons, all without any overt participation in political activities." But in the end, the judge said he could not accept an "implicit assumption" of the opposing attorneys' arguments: "that terrorists would never in furtherance of their unlawful purposes participate in 'lawful political, religious, educational or social activities,' those being the activities engaged in by the individuals and organizations who are members of the class certified in this case at the behest of class counsel."
Referring to the 1993 bombing of the World Trade Center, Judge Haight added: "It is a sad reality that such use was made of a place of worship dedicated to Islam, one of the world's great religions, but a reality nonetheless."
Judge Haight gave the NYPD until Feb. 21 to submit its internal guidelines to opposing counsel and the court. He said opposing counsel would be allowed to submit comments on the guidelines.
Also representing the plaintiff political groups were Paul G. Chevigny, Martin Stolar and Franklin Siegel, who all worked on the original Handschu case. Arthur Eisenberg of the New York Civil Liberties Union also joined the plaintiffs.
By Tom Perrotta
New York Law Journal
Southern District Judge Charles S. Haight Jr.
A federal judge has agreed to delete nearly all provisions of a consent decree that governs surveillance of political groups, as long as the New York City police department adopts internal guidelines similar to those of the FBI by next week.
In a ruling issued Tuesday, Southern District Judge Charles S. Haight Jr. said the department had clearly shown that the 18-year-old decree was outdated and could stifle investigations into terrorist plots.
He also rejected arguments by civil liberties attorneys that the department's modifications should be denied because they were not "suitably tailored" to changed circumstances in the city since the Sept. 11 terrorist attacks.
Provisions of the decree, known as the Handschu Guidelines, require police officers to obtain specific information of criminal activity before they can investigate a political group.
Only officers in the Public Security Section (PSS) are able to conduct such investigations, and their activities must be approved by a three-member panel, known as the Handschu Authority. Violating the decree subjects the city to contempt proceedings.
Since last September, the police department's deputy commissioner of intelligence, David Cohen, a 35-year veteran of the Central Intelligence Agency, has taken the lead in arguing that the guidelines interfere with law enforcement tactics that are essential in terrorism investigations. These include infiltrating political groups with undercover officers, collecting information about people concealing potential terrorist plots, and sharing that information with other federal and local law enforcement agencies.
In court papers, the department has sought to remove all restrictions in the Handschu Guidelines other than those already enumerated in the U.S. Constitution. The department has contended that rather than having to prove criminal activity before beginning an investigation, officers should only need to show that an investigation served a law enforcement purpose.
The police department's proposed changes immediately drew opposition from civil liberties attorneys who represented plaintiffs in the class-action lawsuit that resulted in the Handschu decree. They claim that Handschu creates a low standard that does not hamper terrorism investigations, and that eradicating the decree would be a setback for the free speech rights of New Yorkers.
On Tuesday, Judge Haight agreed that the NYPD's response to Sept. 11 was reasonable and warranted. He wrote in Handschu v. Special Services Division, 71 Civ. 2203, that "the Constitution's protections are unchanging, but the nature of public peril can change with dramatic speed, as recent events show." He added: "The Handschu Guidelines approved in the 1985 consent decree addressed different perils in a different time."
Judge Haight said that attorneys contesting the proposed modifications had offered "no evidence . . . to rebut Deputy Commissioner Cohen's testimony that the Handschu Guidelines' criminal activity requirement, limitations on the collection, retention and dissemination of information, and the restriction of NYPD intelligence gathering efforts to a single unit [the PSS] . . . severely handicap police efforts to gather and utilize information about potential terrorist activity."
Gail Donoghue, special assistant to Corporation Counsel Michael A. Cardozo, described the ruling as a "major victory" for the city. She added that her office did not plan to appeal any aspect of it.
"It's good to know that the Police Department can use judgment in tracking down things that are not clearly criminal, but certainly suspicion," Donoghue said. She said the city had no qualms about the fact that the case would remain under Judge Haight's jurisdiction.
In a statement, Police Commissioner Raymond W. Kelly said, "This ruling removes restrictions from a bygone era and will allow us to more effectively carry out counter-terrorism investigations."
Jethro M. Eisenstein of Profeta & Eisenstein, one of several civil liberties attorneys who handled the case, said having internal guidelines was better than no rules at all, but still fell short.
"What's missing, and what's going to disappear, is the process [of seeking approval] that we constructed in the Handschu Guidelines, which became a part of the culture of the police department," Eisenstein said. "That process was incredibly valuable because it meant that officers -- day in and day out -- had to articulate why they were engaging in an investigation."
Eisenstein said that he and other lawyers working with him will decide whether to appeal the ruling, and on what grounds, after they have seen the police department regulations.
Appropriate Remedy
Central to Judge Haight's analysis was Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, a 1992 U.S. Supreme Court ruling holding that a party seeking to modify a consent decree must show that a significant change in fact or law warrants revision. It also held that the proposed modification must be suitably tailored to the changed circumstances.
Both parties in the Handschu matter agreed that circumstances have changed since Sept. 11, 2001, and Judge Haight ruled that the remedy was appropriate, even considering a footnote in Rufo that says proposed modifications should not strive to rewrite a decree to the constitutional floor.
The modified Handschu decree, the judge said, would contain protections beyond the Constitution because the Handschu Authority would still exist, though it would only investigate claims of abuse filed by citizens.
Also, he said, the NYPD's promise to include the FBI guidelines created a benchmark for measuring the tactics of officers, even though those guidelines would create no specific rights for citizens. The judge noted that although the FBI guidelines allow a full range of preliminary inquiries, they do not favor full investigations and information gathering unless there is a "reasonable indication" that a crime is going to be committed.
At one point in his ruling, Judge Haight noted that there was a "surface appeal" to the argument that Handschu did not interfere with terrorism investigations.
Commissioner Cohen's declarations, he said, "tend on occasion to wander off the reservation," and contemplate "conduct such as renting apartments, leasing cars, or taking flying lessons, all without any overt participation in political activities." But in the end, the judge said he could not accept an "implicit assumption" of the opposing attorneys' arguments: "that terrorists would never in furtherance of their unlawful purposes participate in 'lawful political, religious, educational or social activities,' those being the activities engaged in by the individuals and organizations who are members of the class certified in this case at the behest of class counsel."
Referring to the 1993 bombing of the World Trade Center, Judge Haight added: "It is a sad reality that such use was made of a place of worship dedicated to Islam, one of the world's great religions, but a reality nonetheless."
Judge Haight gave the NYPD until Feb. 21 to submit its internal guidelines to opposing counsel and the court. He said opposing counsel would be allowed to submit comments on the guidelines.
Also representing the plaintiff political groups were Paul G. Chevigny, Martin Stolar and Franklin Siegel, who all worked on the original Handschu case. Arthur Eisenberg of the New York Civil Liberties Union also joined the plaintiffs.
