No Backspace: NY’s Rules for Policing Political Activity Still Need Tightening

Five months ago, Judge Charles Haight ordered lawyers for the city and those representing a plaintiff class (which would ostensibly include myself, other activists, and you) back to the drawing board after a proposed settlement over the police department’s skirting of the Handschu guidelines, court-ordered rules limiting police surveillance, didn’t “furnish sufficient protection” from abuse by illegally intrusive cops. Last week, those same lawyers trotted back into Manhattan federal court with a new proposal that included tweaks seeking to satisfy some of the judge’s concerns. Haight this week approved this second settlement, but it—and really the entire process—should invite serious questions among activists and all New Yorkers.

Will new so-called protections actually meaningfully protect people from the police department’s expanding surveillance apparatus? Another question is why protections for activists, a group likely growing in the Trump and Black Lives Matter eras, are being shaped by a handful of lawyers with little public input?

First, one has to get a basic grasp on Handschu, which isn’t easy. To do that, you have to go back. No, not all the way back to the 1971 class action suit named after Barbara Handschu, a plaintiff in that case about police spying, but at least to 1985, when an agreement to resolve the case mandated (more in theory than practice) that cops adhere to certain parameters. For the next decade and a half, Handschu—which had come about because of the NYPD’s long history of snooping, especially against, left-wing activists—was a vitally important, if insufficient, check on police spying.

Then came September 11th, 2001. After 9/11, Judge Haight, who has overseen the case for decades, eased restrictions on the police department, allowing new police investigations, or inquiries, to be launched when there was just the “possibility of criminal activity.” This weakened Handschu by adhering to federal guidelines issued by then President George W. Bush’s Attorney General, John Ashcroft, one of the legal brains behind the neo-conservative movement.

This brings us to last year. With Haight ready to tighten the legal leash on the NYPD that he himself had loosened, lawyers from the original Handschu case, now over four decades old, reached a settlement with the NYPD that would not only put to bed the current issues with Handschu, but also resolve the Raza case. That proposed settlement was announced in January of 2016 to some fanfare. Legal organizations involved on the plaintiff side, like the American Civil Liberties Union (ACLU) and CUNY Law’s CLEAR Project, celebrated the “landmark” settlement as a “win for New York Muslims and for all New Yorkers.”

The details of that agreement, however, offered pretty modest measures, like a single civilian representative, to be added to an otherwise all-cop “Handschu Committee” that would oversee NYPD-Handschu compliance. Later that month, Haight ordered fairness hearings to get input from the plaintiff class, which included activist New Yorkers more broadly. The ACLU’s corks had to be put back into their bottles as the public had to weigh in.

Local Muslim community leaders and activists testified about NYPD surveillance. Most were critical of the settlement that the lawyers and police department had reached, which did “nothing to prevent the NYPD from continuing to engage in the same activity that led to the filing of the injunction,” as the opening speaker put it. Others, however, offered messages of support for the NYPD-approved settlement. Linda Sarsour, a media-favored Muslim activist, implored the judge to accept the settlement’s “minimum safeguards” as soon as possible: “If you do not approve these guidelines, that will be no justice.” Her testimony echoed that of Reverend Dr. Karyn Carlo, a Baptist minister and retired NYPD Captain who also asked Haight to approve the settlement for the “minimum safeguards” they might provide.

Responding to the pro-settlement testimonies, which also suggested improvements on oversight, Haight noted the doublespeak of those asking him to “approve the settlement and guidelines, but change them,” which, as he put it, placed him in a “challenging position.” It was certainly confusing for activists, like myself, who were left to wonder what the actual choices were. While it was obvious that the police department had been casually abusing First Amendment rights for years, many of us reasoned that a weak settlement wasn’t worth supporting.

Robert Jereski, a law student and co-founder of Friends of Brad Will and Stop NYPD Spying, helped bring forward the first complaint for the office of NYPD Inspector General back in May of 2014, an agency created through legislation as a result of the larger stop-and-frisk battle in 2013. Jereski wanted new inspector Phil Eure to take a closer look at the NYPD’s spying tactics. Though Jereski says he only received a couple of boilerplate response letters, Eure’s office did, according to the New York Times, indicate that they would look at surveillance issues more seriously. The IG eventually published a report critical of the NYPD, citing repeated violations of Handschu guidelines, like going beyond allowed investigative timeframes.

Haight pointed to the IG report as cause for concern in October of 2016 when he rejected the January settlement. Oddly, lawyers for the plaintiff class, namely Jethro Eisenstein, one of the original Handschu lawyers, wrote the judge arguing that they didn’t agree with the IG or the NYPD, who rebutted the IG, and simply wanted the proposed settlement approved:

“Plaintiff’s counsel in Raza and counsel for the plaintiff class in Handschu do not agree with all the findings of the Inspector General or with the positions taken by the NYPD in response. We stand by the positions we have previously expressed. Nonetheless, all the parties in Handschu and in Raza continue to endorse and support the proposed settlement that is pending before you for approval.”

Judge Haight turned down the lawyers (which includes attorneys for the NYCLU, ACLU, CUNY Law as well as notable lawyer-for-activists Marty Stolar), explaining that he was “unable to agree” to disregard the IG’s report. In other words, these lefty lawyers, perhaps wanting to spike their legal footballs with news of a settlement, wanted their settlement, period. The full scope of problems with NYPD spying were almost beside the point. Instead, the task of pushing for better protections in Handschu fell to a federal judge (!). What really bothered Haight was the level of access and independence allotted for the Civilian Representative in the first proposed settlement, which he said did “not furnish sufficient protection from potential violations of the constitutional rights” of NYPD targets, Muslims in particular.

The new modifications in the just-approved settlement, perhaps appeasing Haight’s main concern by granting the Civilian Representative more access and the ability to report to Haight directly, still don’t necessarily provide enough protection. Jereski notes that the Handschu guidelines installed in 1985 were similarly criticized by activists then for being inadequate. One problem he notes with both versions of the settlement is the issue of the “low threshold” for legally launching investigations. The mere “possibility of unlawful activity”, he says, still allows for the placement of “an informant in an activist organization or mosque.”

“This means that an informant—who knows full well where his bread is buttered—[can] make an allegation of some facts that are untrue but nevertheless satisfy this incredibly weak ‘protective’ threshold for placing undercovers and informants in groups,” Jereski says. This could mean that “allegations that an activist has or will engage in civil disobedience or some ‘quality of life’ misdemeanor are sufficient” for continued, intrusive levels of spying, he notes. And there is also the question of what the NYPD, which admits no wrongdoing (of course), has done with the information they’ve already obtained. The settlement doesn’t address that either.

These are some of the fatal flaws within Handschu for those that’d like the NYPD to actually, you know, stop spying on us. If Handschu can ever be a vehicle for those values is anyone’s guess. Negotiating with the NYPD hasn’t brought us much change in 40 plus years. The answer may just be to encrypt e-v-e-r-y-t-h-i-n-g and create better vetting efforts within your organization and social circles.

Lastly, Jereski sees an irony in that the Handschu (and Raza) settlement may in fact “run counter to the calls for police reform.” The growing Black Lives Matter movement has come to “recognize that abusive police practices are entrenched and will not be solved by codifying broad police discretion”, he argues. A blog posted on the ACLU’s website written by its legal director in Massachusetts rhetorically calls for a more fundamental (and downright radical) approach from the legal community “to tear down existing Fourth Amendment architecture and replace it with cases more capable of deterring police violence.”

A more radical legal approach to confining the police? Imagine that.