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Consent Decree Bars NYPD From Videotaping Demonstrators And Retaining Videotapes, NYCLU Argues

NYCLU Legal Director Arthur Eisenberg and Jethro M. Eisenstein argued before U.S. District Court Judge Charles S. Haight today that people have the right to engage in peaceful protest without running the risk that police will videotape them and keep those videotapes indefinitely.

The argument marked another round in the long-running class action lawsuit Handschu v. Special Services Division, in which a class of citizens took the New York City Police Department to task to put an end to its historic pattern of surveillance, infiltration, disruption and suppression of political expression and association in New York City.

As a result of the 1985 consent decree in the Handschu case, the NYPD adopted a policy of refraining from videotaping political demonstrations unless the department had reason to believe that a crime had been or was about to be committed. It was also the policy not to retain any videotapes unless they were needed as evidence of a crime. But in 2004 the NYPD amended its policy and asserted the authority to videotape even peaceful protest activity and to retain the videotapes for an unlimited amount of time.

After efforts to convince the NYPD to withdraw its new policy failed, the lawyers representing the class of plaintiffs in the Handschu case requested that Judge Haight prohibit the implementation of the new policy. Eisenberg and Eisenstein argued today that the new policy violates the terms of a consent decree that was entered in the case in August 2003.

Quoting from a recent Supreme Court decision regarding the enforceability of consent decrees, Eisenberg asserted that “federal courts are not reduced to entering consent decrees and hoping for compliance. The commitments made by the City and incorporated into the Court’s oder of August 2003 are enforceable, and a court order should be issued to compel compliance with those commitments.”

Upon hearing today’s arguments Judge Haight stated that he will consider whether to hold an evidentiary hearing on the scope of police surveillance and on the police department’s claim that it needs to engage in surveillance of peaceful protest in order to deter terrorism. The judge’s final determination as to whether to hold that hearing, and his ruling on the motion brought by the lawyers for the Handschu class, are expected sometime in the coming months.

Lawyers on the case include NYCLU Legal Director Arthur Eisenberg, Paul G. Chevigny of NYU Law School, Jethro M. Eisenstein, Martin R. Stolar, and Franklin Siegel.

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