Originally published in The Huffington Post
November 7th, 2016
In a significant ruling applauded by religious, political, and civil liberties groups, a New York federal judge recently rejected a settlement agreement in a decades-long, class-action lawsuit stemming from illegal spying by the New York Police Department (NYPD).
On October 28th, Senior U.S. District Court Judge Charles S. Haight, Jr. published a 41-page ruling, which held that "[a]pproval of the proposed settlement in its present form," under the circumstances would be "unreasonable." Judge Haight asked the parties to go back to the drawing board in order to arrive at an agreement that will "furnish sufficient protection from potential violations of the constitutional rights of [plaintiffs]."
Members of an ad-hoc coalition of political, legal and faith-based groups that formed earlier this year to educate the public about NYPD spying and the pending litigation welcomed the recent but unexpected ruling. The coalition sees the ruling as an opportunity to place pressure on the City of New York to improve the settlement terms while continuing to educate and mobilize the public.
"I almost fell out of my chair when I learned of the news," said Dr. Debbie Almontaser, president of the Muslim Community Network and a co-founding member of the Better Handschu Guidelines Coalition. "Judge Haight surprised the world with his rejection of a weak settlement agreed to by the NYPD and Raza and Handschu lawyers."
Long history of abusive spying by NYPD
Judge Haight's ruling is the latest twist in the politically-charged lawsuit Handschu v. Special Services Division, originally filed in 1971. In the era of COINTELPRO, National Lawyers Guild attorney Barbara Handschu along with fifteen activists and political organizers accused the NYPD of violating their constitutional rights through the illegal use of informants, infiltration, interrogation, overt surveillance, summary punishment, intelligence gathering and electronic surveillance.
The Handschu case eventually established rules by consent decree called the "Handschu Guidelines," aimed at restricting NYPD surveillance and infiltration in order to protect the rights of people visiting and living in New York City.
After 9/11, the city went to court to relax the guidelines with the claim that the rules impeded the NYPD's counterterrorism efforts and, in 2003, Haight capitulated. One of the most significant changes was to eliminate NYPD oversight by the so-called "Handschu Authority"—a three-person committee, including a civilian member—what little the public had as a means of holding the NYPD accountable.
In 2013, the Handschu case was reopened following the Pulitzer Prize-winning series by the Associated Press, which exposed a vast domestic spying network developed by the NYPD in 2001. But, because the NYPD counterintelligence effort focused almost exclusively on Muslims, another lawsuit—Raza v. City of New York—was filed later in 2013, challenging NYPD profiling and spying practices as a violation of equal protection and religious freedom.
In January, all parties in the Handschu and Raza litigation agreed to settlement terms that would modify the Handschu Guidelines, ostensibly to prevent the type of constitutional violations on which the lawsuits were based.
As required in such class-action cases, Judge Haight ordered a Fairness Hearing in February to seek input from the class as to whether the settlement terms were "fair and reasonable." To his credit, Haight extended the comment period when confronted with complaints that the court had given insufficient time to respond. It was during this period that activists, political organizers, lawyers, religious leaders and faith-based groups became unified in their opposition to certain aspects of the proposed settlement terms, arguing that the modifications would fail to prevent further constitutional violations.
Judge points to Inspector General report and "routine failures" by police
Much of Judge Haight's decision centers around a report by the Office of Inspector General for the NYPD (OIG-NYPD) published on August 23, 2016, which details routine failures by the NYPD to adhere to court-ordered restrictions laid out in the Handschu Guidelines. Haight points out in his ruling that those failures "suggest a systemic inclination on the part of the [NYPD] Intelligence Bureau to disregard the Guidelines' mandates."
Published just weeks after the final Fairness Hearing in June and before Judge Haight issued his October ruling, the OIG-NYPD report was as timely as it was damaging for the city and, ultimately, the settlement agreement.
Haight rightly questioned the NYPD's disregard for the rules governing its spying operations. The OIG-NYPD found that the police continued investigations and used confidential informants or undercover officers without approval more than half of the time.
The OIG-NYPD also found that the police approved undercover investigations without a description of facts or the role of the undercover, which are both NYPD Patrol Guide requirements and prudent for evaluating the need and efficacy of such an intrusive tactic. Instead, the NYPD sought approval using boilerplate text that was so routine "the same typographical error had been cut and pasted into virtually every application OIG-NYPD reviewed, going back over a decade," according to the report.
Judge Haight felt strongly enough about these routine failures to raise them in his ruling, calling the OIG-NYPD findings "disquieting," but not strongly enough to offer solutions to the problem.
The OIG-NYPD investigation also failed to link this routine negligence—or deliberate deception—to any potentially broader violations such as opening investigations under false pretenses.
While the OIG-NYPD report found the police were able to articulate "a valid basis for commencing investigations," the inspector general provides no supporting evidence or information for drawing that conclusion.
Furthermore, the report undermines such conclusions by providing the following disclaimer:
"In conducting this particular review, OIG-NYPD did not seek to re-investigate NYPD's cases, to replace the investigative judgment of NYPD's Intelligence Bureau, or to assess the appropriateness of NYPD's decision to use confidential informants and undercover officers when investigating political activity."
The thing is, the NYPD has a very low threshold—only "the possibility of unlawful activity"—to open what it calls a Preliminary Inquiry which, according to the OIG-NYPD, allows for "broad and sometimes invasive investigative powers, including the use of confidential informants and undercover officers."
Judge Haight was disingenuous in his ruling for pointing out that Preliminary Inquiries by police require "[f]act-based and articulable allegations or information," but then failing to mention that according to the proposed modified Handschu Guidelines "such allegation[s] or information need not [be] verified as true or accurate."
The Handschu Guidelines go on to state that Preliminary Inquiries allow the NYPD to "respond in a measured way to ambiguous or incomplete information," especially when "an allegation or information is received from a source of unknown reliability."
To recap, the modified Handschu Guidelines allow the NYPD to open a Preliminary Inquiry and use invasive investigation techniques such as surveillance and infiltration based only on the "possibility" of unlawful activity from unverified, potentially false, information provided by an unreliable source.
How safe does that make you feel?
Seeking to underscore the importance of the First Amendment, the guidelines "strictly prohibit" undercovers from "engaging in any conduct the sole purpose of which is to disrupt the lawful exercise of political activity." But, this begs the question of whether police can lawfully disrupt political activity as long as it’s not the NYPD's sole purpose.
Do the court's recommendations go far enough to actually curb abusive NYPD spying?
Notably, Judge Haight's recommendations for further modification of the Handschu Guidelines rely exclusively on the oversight body referred to as the "Handschu Committee."
While political activists, Muslims and faith-based groups want oversight of the NYPD's spying activities, many individuals and groups have argued that improvements to the guidelines should not be limited to the Handschu Committee and should extend further than Judge Haight's recommendations.
Specifically, Haight recommends in his ruling that all parties consider:
(1) expanding the scope of the Handschu Committee to include "review and monitoring of the NYPD's compliance with all of the Handschu Guidelines for investigating political activity,"
(2) giving authority to the committee's Civilian Representative to communicate directly with the court, under seal, any "comments or concerns arising out of his or her functioning in that position," including quarterly reports, and
(3) denying the mayor "unfettered veto power" to terminate the civilian member of the committee after five years, instead requiring judicial review before such termination can be executed.
Although concerns expressed during the open comment period were wide ranging, Judge Haight's ruling limited those concerns to the Handschu Committee alone.
Judge Haight raised, but then ignored, respondents' suggestions that:
(1) the Civilian Representative be appointed by an authority other than the mayor,
(2) the Civilian Representative should be a paid position,
(3) the Civilian Representative's participation in monthly committee meetings be mandatory, and
(4) the Civilian Representative should have full investigatory authority, including subpoena power.
Judge Haight also raised but rejected out-of-hand respondents' concerns that the composition of the committee—with eleven high-level law enforcement officials and only one civilian member—made oversight impossible.
Some of the concerns expressed by respondents during the comment period, but not raised by Judge Haight include the failure of the modified guidelines to address the production, use, destruction and retention of existing and future records, the ease with which investigations can be initiated and renewed, and the low threshold needed to approve the use of undercover police and confidential informants for the infiltration of political and religious groups.
Opportunity is ripe to pressure the city to improve means of holding NYPD accountable
Modified Handschu Guidelines aside, the ad-hoc coalition that arose out of efforts to mobilize the public during the court-ordered comment period may be one of the best things to come out of this year's efforts to hold the NYPD accountable for its ongoing abusive spying practices.
While continuing to build on existing work being done to curb unlawful spying, the coalition now has a unique opportunity to expand its efforts and put even greater pressure on the City of New York to do what's necessary to keep the NYPD in check.
"Judge Haight heard the grave concerns raised by the Better Handschu Guidelines Coalition and other members of the class," said Dr. Almontaser. "Now it's up to us to make sure we get the best deal possible in order to have a chance of holding the NYPD accountable."
Parties in the Raza and Handschu cases have until December 9th to advise the court on the status of negotiations around an amended settlement agreement.
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Kris Hermes is an activist, legal worker and author of Crashing the Party: Legacies and Lessons from the RNC 2000 (PM Press).