Comments on Proposed Settlement in
Raza v. City of New York and Handschu v. Special Services Division
May 26, 2016
Submitted by the Bill of Rights Defense Committee/Defending Dissent Foundation
Commentor’s Interest in Settlement
The Bill of Rights Defense Committee/Defending Dissent Foundation protects the right of political expression to strengthen participatory democracy, and to fulfill the promise of the Bill of Rights for everyone.
We are a national organization with over 1,500 supporters New York City who who participate in our advocacy efforts by writing to their members of Congress, state legislators and other policy makers; and by joining in assemblies and protests; organizing local coalitions to work for strong civil liberties safeguards at the state, county and municipal level. We are engaged in political organizing in New York City and are a member of the Communities For Police Reform Coalition, which works to reform NYPD Stop and Frisk practices. Additionally, we belong to a number of other New York based coalitions, including one aimed at opposing a controversial anti-boycott bill that was considered by the New York State Legislature.
This year, the Bill of Rights Defense Committee/Defending Dissent Foundation organized a discussion about the effects of counter terrorism policy on free speech at John Jay College, as part of the Left Forum in May, and will present a workshop about challenges faced by animal rights and Palestinian human rights activists at New York University Law School, as part of the National Lawyers Guild Convention in August.
Bill of Rights Defense Committee/Defending Dissent Foundation staff members have while acting in their official capacities visited New York City for the purposes of engaging in First Amendment activity and intend to do so again.
As an organization that has both been the target of unjustified political surveillance by law enforcement and is actively engaged in political organizing in New York City, we are deeply concerned about the affects the New York Police Department’s intelligence gathering activities could have on our political organizing.
While we welcome any additional oversight of the New York Police Department (NYPD)’s surveillance and infiltration of First Amendment activities, we are concerned that the proposed settlement does not go far enough in restricting these activities. Specifically, we are concerned that the level of suspicion and threshold for initiating an investigation is too low, the discretion to infiltrate political groups is too sweeping, and much greater civilian oversight of the NYPD is needed.
Given the importance of First Amendment activity to our democracy, we assert that the standard to initiate an investigation should be probable cause. As Justice William O. Douglas said in a dissenting opinion,
“When an intelligence officer looks over every nonconformist’s shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed[…]”
Probable cause has long been the standard required for warrants and we believe that political or religious activity is just as sensitive as the security one has in their persons, houses, papers, and effects. While no other police investigations require such a high standard, for the reasons outlined by Justice Douglas First Amendment protected activity requires a unique level of protection from law enforcement intrusion. Given our several hundred year experiment with requiring probable cause for warrants, we can say that this standard has proven and is necessary to be protective of civil liberties.
Regardless of the level of suspicion required, we are deeply concerned that an investigation can be started on the basis of suspicion of “unlawful activity.” While we recognize it is the legitimate function of the police to investigate unlawful activity, we believe that this includes a too broad array of offenses, including misdemeanors and civil disobedience. Investigations based on suspicion of civil disobedience raises particular concerns for us. From the Boston Tea Party to the Greensboro lunch counter protests, civil disobedience is a unique part of our political heritage.
In addition to the political surveillance and infiltration on which Handschu v. Special Services Division is based, our concerns stem in part from the experience of the Federal Bureau of Investigation (FBI), with its own history of unlawful political surveillance and infiltration, as well as attempts at reform. The FBI has a much narrower mandate than the NYPD, as it is tasked with the investigation of only federal crimes. Yet, the FBI has been able to use relatively minor crimes to justify investigations of political groups with serious implications for the First Amendment. For example, the FBI used its jurisdiction over crimes committed on U.S. military bases to justify its decade long surveillance of the pacifist organization School of the Americas (SOA) Watch, according to documents obtained via the Freedom of Information Act. This surveillance included the use of confidential informants, gathering of information on the attorney advising the group, and the tracking of buses bringing protesters to a permitted demonstration. The SOA Watch organizes annual protests at Ft. Benning, Georgia. These protests are entirely peaceful and nonviolent in nature and typically include both a permitted march and acts of civil disobedience. Since it is known in advance that civil disobedience will occur and since Ft. Benning is a military base, the FBI cited this as a reason for its surveillance of SOA Watch activities. Clearly, this was a disproportionate response to individuals the FBI conceded had “peaceful intentions” and involved the monitoring of a wide range of First Amendment activity.
While there is oversight of the FBI, the loose use of minor crimes has at times rendered that oversight meaningless. For example, a 2010 Department of Justice Office of the Inspector General found nothing improper about FBI domestic terrorism investigations of the pacifist Catholic Worker movement. The FBI used its definition of domestic terrorism as the use of physical force or violence to further a political or social cause to argue that the Catholic Worker movement’s minor acts of vandalism, such as pouring blood on a U.S. military installation constituted “physical force.” Since this vandalism was done to advance the pacifist, anti-war mission of the Catholic Worker, it was considered physical force to advance a political cause. As a result, the DOJ OIG found nothing improper about the FBI engaging in a domestic terrorism investigation against the Catholic Worker movement.
The NYPD is tasked with investigating a significantly broader range of crimes than the FBI. Given that the FBI, with its substantially narrower grounds for starting an investigation, has been able to use minor acts of civil disobedience or vandalism to justify major investigations of First Amendment protected speech, we are disturbed by the potential for the NYPD to be given wide leeway in similar monitoring of First Amendment speech. Coupled with the low standard of suspicion required to open an investigation, it is easy to see how political spying could continue under the proposed Guidelines.
The proposed modifications to the Handschu Guidelines still give undercover police or informants sweeping discretion to infiltrate political groups based on the low-threshold determination that “the information sought could not be reasonably obtained in a timely and effective way by a less intrusive means.” Given the NYPD’s history of using unjustified infiltration against political groups, with the 2004 Republican National Convention standing out as a contemporary example, we are reasonably troubled that this behavior will continue despite the Guidelines modifications.
The final issue of concern is with the lack of civilian oversight. While we are pleased that the proposed agreement creates a Handschu Committee, which includes one civilian representative, we feel that greater civilian oversight is needed. The only civilian on the Handschu Committee would be an attorney appointed by the Mayor’s office in consultation with the Police Commissioner. Furthermore, the civilian representative role would be dwarfed by ten law enforcement officials and legal counsel, who make up the rest of the committee. We believe that a fully independent mechanism for civilian review is needed to prevent NYPD overreach and the types of pretextual investigations outlined above.
In order to prevent NYPD abuses of First Amendment rights, the level of suspicion required for an investigation must be probable cause. The threshold for opening an investigation must exclude minor crimes and civil disobedient activity in order to prevent pretextual investigations. The NYPD must have greater restrictions on the use of infiltration that go beyond mere inconvenience in seeking information. There must also be a fully independent mechanism for civilian review. Without these important reforms, it is probable that police will continue to violate the rights of activists and political groups by looking over every nonconformist’s shoulder in the library, walking invisibly by his side in a picket line, and infiltrating his clubs. As Justice Douglas warned, such a situation is dangerous to our democracy.