A federal court overseeing unprecedented reforms in the wake of wrongful NYPD surveillance of Muslim communities made public late yesterday the first annual report of an appointed civilian representative, Stephen Robinson, a former federal judge. The report provides the public with its first direct insight into the workings of the “Handschu Committee,” a body that reviews NYPD investigations of First Amendment-protected religious and political activity for compliance with a judicially-enforced agreement.
The report revealed that the committee has denied considerably more NYPD applications for such investigations since the civilian representative assumed his position. Fewer applications have also been put forward now that the Civilian Representative is on duty. The average length of investigations approved by the committee has dropped to 340 days from 427.
According to his report, Judge Robinson has raised privacy and free expression concerns over investigations and the NYPD’s use of stale and uncertain information and unreliable sourcing. He also considered the circumstances where sensitive locations and institutions were targeted. It is unclear, however, whether such concerns and considerations were recorded in Handschu Committee minutes, which could inform future committee decision-making as well as possible additional oversight by the inspector general for the NYPD and by the New York City Council.
Judge Robinson also confirmed that the NYPD continues to monitor New Yorkers’ and others’ social media accounts. The report notes that the civilian representative has demanded actual social media content for review by the committee, and not simply summary descriptions.
Lawyers for plaintiffs in both the Raza v. City of New York and Handschu v. Special Services Division cases reacted to the release of the Civilian Representative’s report:
Hina Shamsi, ACLU National Security Project director:
“Judge Robinson’s first report brings greater transparency to NYPD investigations that needed reform because the police wrongly surveilled Muslims for years. The report shows Judge Robinson is asking pointed questions in scrutinizing investigations from the inside, and overall is making a positive difference. Although the police department keeps secret the total number of investigations it conducts, it's important that the number of investigation requests denied after scrutiny is higher than it was last year. We look to the civilian representative to ensure that the NYPD abides by the new standards, and that bias-based suspicion of Muslims or any other minority plays no role in the NYPD's investigation decisions.”
Ramzi Kassem, CLEAR founding director and CUNY professor of law:
“While it is heartening that during the civilian representative’s tenure, the average length of all Handschu investigations has decreased, it remains shocking that, on average, covert police investigations of New Yorkers’ and others’ protected speech last over 340 days. That holds especially true when these investigations focus almost exclusively on American Muslims. In August 2016, the inspector general determined that Muslim-identified individuals or organizations featured in more than 95 percent of all NYPD intelligence files reviewed. Nothing in the report indicates this dramatic over-policing of a minority group has ceased or even changed. We hope the civilian representative will examine closely if this outcome is consistent with the NYPD’s legal obligation not to discriminate.”
Arthur Eisenberg, NYCLU legal director:
“This report is a reminder to New Yorkers and to the NYPD of the importance of the NYPD’s commitment to conduct its investigations of political activity in conformance with constitutional guarantees. This includes the right of individuals and organizations to be free from investigations in which race, religion or ethnicity are substantial or motivating factors.”
Jethro M. Eisenstein, Handschu attorney:
“We applaud Judge Robinson for embracing the spirit of the Modified Handschu Guidelines. His efforts are shaping the way the Handschu Committee operates, causing it to scrutinize requests to investigate protected religious and political activity with greater care.”
The Court established the position of a civilian representative to settle claims in two cases against the NYPD, Raza v. City of New York and Handschu v. Special Services Division. Lawyers for Raza include the American Civil Liberties Union, the Creating Law Enforcement Accountability & Responsibility (CLEAR) project of Main Street Legal Services at CUNY School of Law, the New York Civil Liberties Union, and the law firm Morrison & Foerster LLP. Lawyers for Handschu include the New York Civil Liberties Union.
Raza was brought in June 2013 on behalf of religious and community leaders, mosques, and a charitable organization alleging they were caught in the NYPD’s dragnet surveillance of Muslim New Yorkers. The suit charged that the NYPD violated the U.S. and New York State Constitutions by singling out and stigmatizing entire communities based on religion. The case sought systemic reforms to prevent law enforcement abuses.
The Handschu case is a long-standing class action that addresses surveillance by the NYPD of First Amendment-protected activity and that seeks to limit excessive and unreasonable investigatory practices. The rules governing NYPD surveillance of political and other First Amendment-protected activity are called Handschu Guidelines, originally ordered by the court in 1985 but weakened in 2003 following NYPD requests to the court. In 2013, lawyers in the Handschu case filed papers arguing that the NYPD’s investigations of Muslims violated a long-standing consent decree in the case that protects New Yorkers’ lawful political and religious activities from unwarranted NYPD surveillance.
Among provisions of the 2017 settlement of both cases was the appointment of a civilian representative empowered to report to the court at any time if there are violations of the Handschu Guidelines, and who is required to report to the court if there are systematic violations and to report to the court on an annual basis. This first report reveals that the NYPD has allowed the civilian representative access to the NYPD’s investigative process beyond what the settlement requires, including to investigative briefings and top officials within the Intelligence Bureau.
In addition to Imam Raza, the plaintiffs in the Raza case are Asad Dandia, Masjid Al-Ansar mosque, the charity Muslims Giving Back, Masjid At-Taqwa mosque, and Mohammad Elshinawy.
In addition to Shamsi, Kassem, and Eisenberg, lawyers on the Raza case include Ashley Gorski and Patrick Toomey of the ACLU, Naz Ahmad and Tarek Z. Ismail of CLEAR, Beth Haroules of the NYCLU, and Hector Gallegos, Kyle Mooney, and Adam Hunt of Morrison & Foerster LLP.
Lawyers on the Handschu case are Eisenberg, Jethro M. Eisenstein, Martin R. Stolar, Paul G. Chevigny, and Franklin Siegel.