Today at 3 p.m., federal district Judge Charles S. Haight will hear argument on a request that the court order the NYPD to give notice when it changes policies governing photo and video surveillance by police officers of demonstrations and public gatherings involving political activity in New York City. The hearing will take place at the U.S. Courthouse, 500 Pearl Street, Manhattan.

The motion comes after it was learned late last year that the NYPD had quietly dropped a 2004 policy that allowed officers to routinely videotape and photograph New Yorkers engaged in lawful protest and political activity. The change came to light in Handschu v. Special Services Division, a decades-old federal court case which has resulted in a series of court orders regulating police surveillance of political demonstrations and activities.

The Handschu court order says that the NYPD can only investigate First Amendment activity when it involves criminal activity. After 9/11, the city argued that this rule was too restrictive and needed to be modernized to prevent terrorism. During the Republican National Convention, the NYPD introduced a practice of videotaping everyday political protests, treating legal, protected demonstrations as security threats.

After the convention, the NYPD attempted to codify this practice in the form of a written policy. The NYPD claimed it could photograph and videotape all political activity in New York City without restriction, and retain those photographs and videotapes for unlimited periods of time. Attorneys in the Handschu case immediately challenged that policy as a violation of the Handschu decree, which has at all times prohibited the creation of political dossiers on individuals in the absence of illegal conduct.

The NYPD fought the challenge to its photosurveillance regulation in court for three years, before quietly rescinding it on April 13, 2007. But the city did not notify Judge Haight or the Handschu attorneys of the policy change until the fall of 2008 – more than a year after the regulation was dropped.

With the policy change, the NYPD returned to the court-ordered pre-2004 guidelines that prohibit the police from videotaping public protests unless there is reason to believe that a crime has occurred or is about to occur.

The motion Judge Haight will hear today asks the court to require the NYPD to notify the court and the Handschu attorneys if the new political activity video order is changed again, to ensure that NYPD surveillance procedures conform to the court-ordered Handschu Guidelines. The motion also asks the court to declare that the class prevailed on the motion, and permit an application for counsel fees under the federal civil rights statute.

The civil rights class is represented by Paul G. Chevigny of NYU Law School, Jethro M. Eisenstein, Martin R. Stolar and Franklin Siegel, who have been joined by Arthur Eisenberg, legal director of the New York Civil Liberties Union.