On October 28, 2016 U.S. District Judge Charles Haight rejected a proposed settlement pertaining to the New York Police Department’s spying on religious and political activity, saying that the guidelines did not do enough to safeguard civil liberties.
Earlier this year, the Bill of Rights Defense Committee/Defending Dissent Foundation submitted public comments on the proposed settlement. In our comments to the court, we stressed that the settlement did not go far enough and that greater oversight was needed. We were not alone in expressing our concern, many activists and members of the Muslim community submitted written comments and attended in-person a hearing in April. We are pleased that Judge Haight shares the concerns of community members, activists, and civil libertarians and rejected the proposed settlement.
The origins of yesterday’s decision traces its roots back several decades. In the 1970s, after the conclusion of the (Black) Panther 21 trial, a record-breaking eight month conspiracy trial that concluded with acquittal of everyone of the 21 defendants on 156 different charges, a spotlight was placed on the role of the NYPD’s Red Squad in surveilling dissent. In 1971, a group of activists, including National Lawyers Guild attorney Barbara Handschu, filed a suit against the NYPD’s Red Squad (officially known as the Special Services Division). Over a decade later, a consent decree, known as the Handschu Agreement, was reached putting restrictions on the NYPD’s surveillance of dissent. The consent decree meant that the lawsuit remained open.
After 9/11, the NYPD requested that Judge Haight amend the Handschu Agreement to ease restrictions on NYPD investigations involving First Amendment protected activity. In spite of the fact that the NYPD could not cite a single instance in which protecting the First Amendment thwarted legitimate counterterrorism efforts, the consent agreement was amended. The new rules give the NYPD considerably more leeway in First Amendment related investigations and eliminated the civilian representative on the “Handschu Commission.”
Predictably, the NYPD abused its surveillance authorities. The final straw, however, came in 2011 when the Associated Press revealed that the NYPD’s “Demographic Unit” had been spying on Muslims solely for being Muslim. This included surveillance of Mosques, student groups, and even restaurants.
The NYPD’s actions sparked a lawsuit by Muslims living in New York City, Raza v. City of New York. Since the revelations involved the type of police activity governed by the Handschu Agreement, and since the initial Handschu lawsuit was still ongoing, it also implicated the Handschu plaintiffs. As a result, a proposed settlement was reached jointly concerning both the Raza plaintiffs and the original Handschu plaintiffs.
In addition to the many comments about the settlement not going far enough, between the public comment period and this week’s decision, the New York City Department of Investigation’s Office of Inspector General (OIG) released a report showing the NYPD continuously violated its own guidelines. Judge Haight cited the fact that even though the NYPD publishes the Handschu Guidelines in its manuals, they continuously ignores them, in his reasoning for rejecting the settlement.
According to Judge Haight, the proposed settlement did not “furnish sufficient protection from potential violations of the constitutional rights of those law-abiding Muslims and believers in Islam who live, move and have their being in this city.”
What comes next is uncertain. Both the NYPD and representatives of the plaintiffs are working to come to a new agreement, as quickly as possible. For the activists who submitted public comments and showed up in person to urge the court to go farther in policing the police, they now have a victory under their belts. Hopefully, it is a victory that will continue to propel forward a movement against Islamophobia and political spying and for police accountability.