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On Monday March 6, 2017 plaintiffs who had challenged the New York Police Department’s (NYPD) spying on their First Amendment protected activity announced they had reached a settlement with the NYPD. The settlement would impose new guidelines on the NYPD designed to prevent future abuses from happening. A federal judge, Charles Haight, still has to approve the settlement. [Update 3/15/17: The Settlement has been approved.] Haight rejected a previous settlement, saying it did not go far enough in placing safeguards on the NYPD’s surveillance powers when First Amendment protected activity is concerned.
The roots of this case go all the way back to 1971, when a group of activists sued the NYPD’s “Red Squad” for surveilling their political activities. Over a decade later, the parties agreed to a “consent decree” that put important checks, known as the “Handschu Guidelines,” on NYPD investigations that have First Amendment implications. This decree also meant the lawsuit technically remained open. After 9/11, the NYPD asked to Judge Haight to amend the decree, reducing the oversight they were subjected to. Haight agreed. These changes included the elimination of a civilian monitor.
Fast forward yet another decade, and the NYPD is again caught engaging in improper surveillance. This time, according to a series of revelations from the Associated Press, the NYPD had assembled a “Demographics Unit” that engaged in the surveillance and tracking of Muslims, both in New York City and across state lines. These revelations sparked a series of new lawsuits, including Raza v. City of New York. And because they involved the NYPD’s surveillance of First Amendment activity, it meant that the dormant Handschu litigation was also reopened.
The plaintiffs and the NYPD reached a previous settlement earlier this year. BORDC/DDF submitted public comments outlining our belief that the settlement did not go far enough to safeguard civil liberties. In October of last year, Judge Haight announced that he was of the same belief and rejected the proposed settlement.
The new settlement has a number of key provisions. First, it would once again require a civilian monitor. The monitor would be appointed by the mayor and is required to report to the Police Commissioner any violations of the guidelines. If the violations are systemic, the civilian monitor is required to report them directly to the judge. The mayor cannot abolish the position of the civilian monitor without court approval. The court can only approve of such abolition if there has not been any systematic violations of guidelines for three years. This civilian will not only review opening and extensions of investigations, but how they are conducted.
This settlement also includes a number of other important checks on the NYPD. In order to conduct a preliminary investigation into political or religious activity, the NYPD would need to have articulable and factual information about possible criminal activity. The use of undercover agents and confidential informants would also be curtailed. The NYPD could only use such tactics when the information sought cannot reasonably be obtained in a timely and effective way by less intrusive means.
If the Judge Haight approves this settlement, it will not only mark the end of Reza, but finally bring the decades long Handschu case to a close.