On May 18, 1971, residents of New York filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 in the U.S. District Court for the Southern District of New York, alleging that the NYPD Special Services Division had conducted unlawful surveillance and intelligence-gathering activities against plaintiffs and the political action groups to which they belonged, in violation of their First Amendment rights. Plaintiffs were represented by the Center for Constitutional Rights and private counsel. They sought declaratory and injunctive relief.
The NPYD moved to dismiss the complaint. The District Court (Judge Edward Weinfeld) denied that motion. Handschu v. Special Servs. Div., 349 F. Supp. 766 (S.D.N.Y. 1972) ("Handschu I"). Settlement negotiations followed.
Oversight of the case was transferred from Judge Weinfeld to Senior United States District Judge Charles S. Haight, Jr. On May 24, 1979, Judge Haight certified the plaintiff class. Thereafter class counsel and the Corporation Counsel for the NYPD negotiated a proposed settlement of the class action which was approved by the District Court on May 14, 1985, Handschu v. Special Servs. Div., 605 F. Supp. 1384 (S.D.N.Y. 1985) ("Handschu II"), and affirmed by the Second Circuit. Handschu v. Special Servs. Div., 787 F.2d 828 (2d Cir. 1986) ("Handschu III"). The Settlement Agreement called for the NYPD to adopt guidelines governing future police conduct in the areas of videotaping surveillance, and intelligence-gathering activities. ("Original Handschu Guidelines").
We don't have the docket for the fifteen years following approval of the settlement; the digitized docket skips from item 168 (in 1986) to 265 (in 2002). So we don't know what happened in this period. Responding to the terrorist attacks of 9/11/2001, the NYPD on Sept. 25, 2002, sought a court modification of the Original Handschu Guidelines to more effectively combat terrorism. Over plaintiffs' objection, the District Court granted the NYPD's motion to modify the original Handschu Guidelines. Handschu v. Special Servs. Div., 273 F. Supp. 2d 327 (S.D.N.Y. 2003) ("Handschu IV"). The District Court's order required that the NYPD revise its patrol guidelines in accordance with guidelines issued by the FBI after 9/11. The "Patrol Guidelines" specified how NYPD was to conduct investigations involving political activity.
Following the arrest and interrogation of individuals protesting President Bush's plan for Iraq in February and March of 2003, plaintiffs sought modification of the District Court's order and Judgment. The District Court issued a Second Revised Order and Judgment which formally incorporated the "Patrol Guidelines" and Modified Handschu Guidelines. Handschu v. Special Servs. Div., 288 F. Supp. 2d 411 (S.D.N.Y. 2003) ("Handschu V").
On September 10, 2004, the NPYD issued and distributed a new "Order 47" to all commanders for implementation. Order 47 revised the Patrol Guidelines regarding the use of photographic and video equipment by officers at political demonstrations. The plaintiff class moved to enjoin enforcement of Order 47. Prior to ruling on the motion, the District Court requested that the parties file position statements about a "Note" appearing on page 2 of Order 47 Handschu v. Special Servs. Div., 2006 WL 1716919 (S.D.N.Y. June 21, 2006) ("Handschu VI").
On February 15, 2007, the District Court (Judge Haight), ruled that the videotaping or photographing by the NYPD of any individual engaged in political activity must be conducted in accordance with the Modified Handschu Guidelines. The Court ruled that to the extent that Order 47 was inconsistent with the Modified Handschu Guidelines, the NYPD would be enjoined from implementing it.
On April 13, 2007, the NPYD issued and distributed a new "Order 22" to all commanders for implementation. Order 22 revoked Order 47 and put in place new guidelines for the use of video/photographic equipment by operational personnel at demonstrations.
Subsequently, in a June 2007 order ("Handschu VIII"), the Court granted Defendants' motion for reconsideration of its February 2007 order ("Handschu VII"), vacating it. The Court explained it had "erred in holding [in Handschu VII] that incorporation of each and every NYPD Guideline into the consent decree was essential to keeping the consent decree above the constitutional floor." 2007 WL 1711775, at *10. Consequentially, it held that "police conduct must violate a class member's constitutional rights in order to sustain a motion by Class Counsel to hold the NYPD in contempt." Id. And such a motion will be granted only if Class Counsel are able "to demonstrate that the NYPD, in the course of photographing or videotaping public gatherings and their participants, systematically and repeatedly disregarded the NYPD Guidelines, to a degree sufficient to show a NYPD policy to act in such a fashion." Id. at *20.
On November 7, 2008, the plaintiff class filed a motion requiring the defendants to give the plaintiff class council advance notice of any efforts to alter or revoke Order 22. They asked the court to declare the plaintiff class to be the prevailing party on its motion for injunctive relief, and they asked the court for permission to file a request for attorneys' fees.
The Court acted favorably upon the class's motion ("Handschu X"). It held that the class, though not successful on all its claims, was nevertheless the prevailing party because it had "achieved (1) victory on a significant claim which (2) brought about a material alteration of the legal relationship between the parties and (3) was which was [sic] judicially sanctioned." 679 F. Supp. 2d 488, 497-98. The "victory" referred to by the Court was the recognition-in Handschu VIII-of both "Class Counsel's ability to inquire into and challenge NYPD policies and the NYPD's obligation to respond to such inquiries and challenges, rather than simply ignoring them." Id. at 496.
The Court held that a full award of attorneys' fees would be inappropriate, however, deciding instead that fees should only be awarded for the claims the class succeeded on. (In a follow-up July 2010 order, the court awarded fees of roughly $180,000.) Finally, the Court ordered that the NYPD was required to provide Class Counsel at least ten days' notice with respect to any "new or revised order, directive or policy which alters, modifies or has any effect upon the sort of police conduct and activity which forms the subject matter of this action." Id. at 504.
In March 2011, the parties entered into a stipulation, later approved by the Court, in which they asked that the Court issue an order vacating its findings that the plaintiff class was the prevailing party and that Defendants' counsel had engaged in sanctionable conduct. For the class's cooperation, Defendants agreed to pay the attorney's fees set out in the Court's August 2010 order, rather than pursuing an appeal. The Court, in turn, issued an order in accordance with the parties' request.
The Court issued a opinion in November 2012 clarifying the scope of "police conduct" affected by the injunction granted in Handschu X. Concurring with Defendants' interpretation, it held that the injunction governed only those "NYPD orders and practices which authorize or regulate police use of photographs and videotapes in the surveillance of class members." 905 F. Supp. 2d 555, 559.
Perceiving violations of the Handschu Guidelines in the NYPD's monitoring of Muslims in the New York area, the class moved for equitable relief in February 2013, requesting an injunction and the appointment of a monitor. The Court determined the class's contentions included "issues worthy of further litigation which entitle[d] Class Counsel to further discovery in aid of their claims," and it directed the parties to confer regarding the scope of necessary discovery. 2014 WL 407103, at *4. On March 17, 2014, the parties expressed to the court their intent to enter into settlement talks.
On January 7, 2016, the parties entered an agreement. The agreement includes a modification to the Hanschu guidelines. The modified guidelines call for reviews of ongoing investigations, establish the Handschu Committee to oversee investigations and set out the requirements for the appointment of a Civilian Representative, require that choices in investigation techniques take into account the effect on religious and political activities of individuals, including those not the target of investigation, and require that undercover investigations only be used when there is no less intrusive means to acquire the sought after information. They also dictate that investigations respect the constitutional right to be free of investigation in which race, religion, or ethnicity is a substantial or motivating factor. The stipulation includes a proposal to publish a notice to class members in four different newspapers.
On February 10, 2016, the court approved the form and content of the notice of the hearing to the class members about the proposed settlement. The court continued to closely monitor the advertisement and notification to class, with a formal fairness hearing held on April 19, 2016.
On August 23, 2016, the New York City Department of Investigation, Office of the Inspector General for the NYPD issued a 36-page report, titled "An investigation of NYPD's Compliance with Rules Governing Investigation of Political Activity." The report described a new-systemic failure of the part of the NYPD to comply with the particular Guidelines.
On October 28th, 2016, the district court ruled on the proposed settlement agreement between the plaintiff class and City of New York regarding issues affecting the Muslim community. The court disapproved the proposed settlement, without prejudice to submission after the parties and counsel have had an opportunity to consider the ruling.
The court first concluded that it could consider the August 23 NYC Dept. of Investigation Report's conclusions as one of the circumstances relevant to the proposed settlement. The court also made a 'fair and reasonable' determination, specifically considering whether it was fair to both the NYPD and the Muslim community. The most controversial provision of the settlement was that the Mayor can eliminate the position of Civilian Representative after five years, without judicial review or approval.
The court concluded that the proposed role and power of the Civilian Representative do not furnish sufficient protection form potential violation of constitutional rights of those law-abiding Muslims and believers in Islam who live, move and have their being in the city. The court laid out several points for parties to consider to make the proposed settlement fair and reasonable.
The case is ongoing. Kristen Sagar - 11/12/2008
Priyah Kaul - 10/14/2014
Sihang Zhang - 11/08/2016