The NYPD has quietly dropped a 2004 policy that allowed officers to engage in political surveillance by routinely videotaping and photographing New Yorkers engaged in lawful protest. The change came to light as part of the Handschu v. Special Services Division proceedings, a decades-old federal case which has resulted in a series of court orders regulating police surveillance of political demonstrations and activities.
“This is a significant victory,” said Jethro M. Eisenstein, a principal counsel in the Handschu case. “New Yorkers should have the right to engage in political protest without fear that their image will appear in a police videotape or their photo will end up in a dossier at NYPD headquarters.”
The Handschu case, a class-action lawsuit filed in 1971, continues to have a major impact on the conduct of police in the face of political protest. After 9/11, the city argued that the rules were too restrictive and needed to be modernized to prevent terrorism. And 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 longstanding consent decree which prohibited the creation of political dossiers on individuals in the absence of illegal conduct.
For three years the NYPD fought the challenge in court, before quietly rescinding it on April 13, 2007. The city did not notify the judge or the Handschu attorneys of the policy change until last month – more than a year after the regulation was dropped.
“While we’re glad that the NYPD realized its surveillance policy ran counter to the Handschu decree, it’s disturbing that the department did so in secret, wasting precious tax dollars to engage in an unnecessary legal battle,” said Arthur Eisenberg, legal director of the New York Civil Liberties Union, co-counsel in the Handschu case. “The police department’s commitment to the casual creation of political dossiers on individuals and groups must end. New Yorkers have a right to know that they can go to a protest without having their photos end up in a police file.”
With the policy change, the NYPD returned to court-ordered pre-2004 guidelines that limit police videotaping of lawful political activity.
Today, Handschu attorneys filed a motion before Judge Charles Haight of the U.S. District Court for the Southern District of New York, asking the court to conclude pending proceedings challenging the discontinued procedure. The petition also asks that the NYPD notify the court and the Handschu attorneys if the new order is changed to ensure that NYPD surveillance procedures conform to the court-ordered guidelines.
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 on the motion by Arthur Eisenberg, Legal Director of the New York Civil Liberties Union.