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An Historic Police Accountability Case Turns 50

By: Paul G. Chevigny Professor of Law, emeritus, NYU School of Law & Jethro M. Eisenstein Civil Rights Attorney in New York City & Martin R. Stolar Civil Rights Attorney in New York City

Fifty years ago today, on May 18, 1971, we filed a civil rights lawsuit against the New York City Police Department (NYPD) and its “Red Squad”. Since the early twentieth century, the Red Squad and its predecessors had been in the business of spying on lawful political activity of New Yorkers.

The case we started fifty years ago, Handschu v. Special Services Division, is still active today. With laws cracking down on protest being passed by state legislatures around the country, we are here to tell you that the Handschu case, and the limitations it has imposed on police surveillance of dissent in New York City, are just as important today as they were in 1971.

When we filed the lawsuit in 1971, we were young lawyers, acting on behalf of a wide range of political and civic activists, including members of The War Resisters League, the Fifth Avenue Peace Parade Committee, the Black Panther Party, the Gay Liberation Front and the Charter Group for a Pledge of Conscience.

Fast forward to June 30, 2020, forty-nine years later. The same lawyers, acting under the authority of rulings in the same case, met with officials of the Police Department to obtain an explanation for the police interrogation of people arrested at Black Lives Matter demonstrations about their political associations and activities. We are very much older, the focus of political activity has shifted, but the Handschu case is still alive and the rules it has produced still govern the policing of dissent in New York City.

How did this begin? In the late 1960’s, operatives of the NYPD Red Squad were disrupting the peaceful activities of civil rights and antiwar organizations. Dissenters were singled out for summary punishment. Groups were driven to disband by the actions of police agents and informants. Individuals who had signed petitions against the U.S. war in Southeast Asia were being questioned about their political views when they applied to become lawyers. The Manhattan Chapter of the Black Panther Party was essentially formed by Red Squad undercover agents, some of whom had started their undercover activities pretending to guard Malcolm X.

By 1971, broad support had developed for legal action to push back against the Red Squad. A trial was underway, in which members of the Black Panther Party were charged, on the testimony of undercover Red Squad agents, with conspiring to blow up department stores and kill police officers. We gathered evidence of the Red Squad’s activity and prepared a complaint.

As if in validation of our view that legal action was needed, the Panther 21 trial ended with the acquittal of all those charged. The jury needed less than two hours to arrive at its unanimous decision on May 13, 1971, that the evidence of wrongdoing was insufficient. Five days later, we filed the Handschu complaint.

The history of the Handschu case reveals how the tension between liberty and security has played out in New York City over the past half-century.

Long story short: NYPD efforts to have the case dismissed were rejected by Judge Edward Weinfeld in 1972. The case was certified as a class action in 1979. Faced with the prospect of making public their more than one million files (shades of the Stasi in East Germany), the NYPD proposed that we discuss a settlement. We responded by proposing that the NYPD agree to rules limiting surveillance of political and religious activity, and that a three-member body (the Handschu Authority) should be created and should include a civilian member from outside the NYPD, with the power to determine whether investigations implicating protected activity could be conducted.

This oversight structure was unprecedented, as was the participation of a civilian. Over the objections of some of our colleagues, who thought it better to lose the case than to compromise, the settlement on these terms was approved by the federal court in 1985.

Sixteen years later, in the aftermath of the destruction of the World Trade Center, the NYPD sought what it described as a modification of the rules embodied in the Handschu Settlement. What the NYPD called a modification was actually an evisceration. The presiding judge, Hon. Charles S. Haight, Jr., described the NYPD proposal as “the functional equivalent of altering a full dress formal evening suit resplendent with white tie and tails into a pair of gym shorts.”

In the anxious months after September 11th, 2001, Judge Haight gave serious consideration to the NYPD’s claim that the Handschu rules curtailed its ability to combat terrorism. The Court approved a modification of the rules, but rejected the evisceration that the NYPD had initially proposed. Most critically, however, the gatekeeper role of the Handschu Authority was eliminated. The modification approved by the Court emboldened the NYPD to claim that the modified rules had become merely internal guidelines, advisory and not mandatory.

Ultimately Judge Haight ruled that the NYPD was required to follow the post-September 11th Handschu rules. He also clarified a “crucial relationship between Class Counsel and the NYPD under the Guidelines, namely, Class Counsel’s ability to inquire into and challenge NYPD policies and the NYPD’s obligation to respond to such inquiries and challenges, rather than simply ignoring them.”

In the fall of 2011, a group of journalists with the Associated Press produced a Pulitzer-Prize-winning series of stories about widespread surveillance of Muslim communities in New York City by the Red Squad, now called the Intelligence Division. The surveillance was ubiquitous, covering mosques, restaurants and student groups at colleges and universities. In 2013, the Court required the NYPD to provide us with information about this program. We were joined in this phase of the litigation by other attorneys from the ACLU, NYCLU and CUNY Law School, representing Muslim individuals and groups who had been subjected to this surveillance.

Over the following years, through extensive negotiation, in which we were joined by the lawyers representing aggrieved members of New York’s Muslim communities, a more robust set of Handschu rules was hammered out. This time, the rules featured an NYPD committee, consisting of police officials, police lawyers and a civilian member, that must review all requests to conduct investigations when constitutionally protected activity is involved. These rules, which were approved by the Court in 2017 and remain in place, effectively restored the civilian oversight that had been a critical feature of the original Handschu settlement.

That important civilian oversight, however, remains at risk. Under the terms of the 2017 agreement, the Mayor may ask the Court, as early as 2022, to eliminate the civilian member of the Handschu Committee. Such a move by the Mayor would be extremely unwise, as this is a time when restrictions on police surveillance need to be tightened, not discarded. With Black Lives Matter protesters and other dissenters being targeted and attacked by law enforcement – and a nationwide reckoning around the need for police accountability – we must have meaningful limits on police power.

As Supreme Court Justice Lewis Powell said in 1972, “[h]istory abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies.”The Handschu rules, which are now part of the fabric of New York City life, have been a continuing barrier against government overreach. The protection they afford “will continue for the foreseeable future, or at least for as long as the City of New York stands, people reside in or visit the City, organizations operate within the City, and the City maintains a police force to protect the public and assist in enforcement of the rule of law.”

The history of the Handschu case reveals how the tension between liberty and security has played out in New York City over the past half-century. And we have been privileged to sit where it all happened.

Please join us as we pay tribute to the Handschu case 50 years after it was first filed with a special online event on Wednesday, May 26.

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