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And on the sidewalk there are two guys with video cameras recording all the action. One is Larry, a tourist from Idaho. The other is a New York City police officercall him "Detective Doe." Larry's wearing an Idaho State sweatshirt and a fanny pack. Detective Doe sports an NYPD-issue windbreaker and a handgun. But when it comes to the cameras, the differences end. They're both simply filming a public protest. They can zoom in on the marchers' faces, record the speeches, and play it all back months or years later if they want.
The detective even has written permission to be therefrom the federal court that in 2003 OK'd the NYPD's "Guidelines for Investigations Involving Political Activity."
Cops, the guidelines say, are "authorized to visit any place and attend any event that is open to the public on the same terms and conditions as members of the public generally." So if Larry from Idaho can be on Seventh Avenue with his Sony Hi8 camcorder rolling, so can the detective.
Of course, Detective Doe is only supposed to be there "for the purpose of detecting or preventing terrorist activities." But that's exactly what he's on the lookout for! Political events are the ideal venue for terrorists, whether it's to kill people, monitor civilians, or even study police tactics.
That's why the latest NYPD policy on videotaping protests allows the cops to film not just when they suspect terrorist or criminal activity but also whenever "such accurate documentation is deemed potentially beneficial or useful." You see, since terrorists could attack or attend any protest, the cops must be able to film every one. And just to make sure they don't miss anything, the NYPD policy says the cops must keep those videos for a year, after which officers "may" destroy the tapesalthough there's nothing saying they have to.
Now, it's true that the court-approved guidelines say that the cops aren't supposed to keep a recording of political events "unless it relates to potential unlawful or terrorist activity." But the guidelines are just guidelinesthey aren't meant to trigger civil rights lawsuits every five minutes. Unless cops violate the Constitution (and merely filming someone at a protest doesn't breach the First Amendment), the NYPD is supposed to have a free hand. And besides, is videotaping really hurting these protesters?
Such was the argument the city of New York made in federal court last week, in the latest installment of the 34-year-long Handschu saga.
In 1971, several political activists sued an NYPD intelligence unit for spying on them and violating their right to free expression. The cops and civil liberties lawyers settled the case in 1985, erecting a set of guidelines (named after a plaintiff, Barbara Handschu) for monitoring political activities. A year after 9-11 the NYPD said it needed more flexibility to deal with terrorism, and the judge allowed the department to adopt a much looser set of rules.
Now, the same lawyers who have pushed the case since the outset are asking U.S. District Judge Charles Haightwho has overseen the case for 30 yearsto stop the NYPD's new videotaping policy. The lawyers argue that for a cop to film a protest is very different from a private citizen's doing so because it could "chill" free expression of political views. They protest the NYPD's policy of retaining these tapes, citing fears that the images could be used to make dossiers on protesters. And they take issue with the NYPD's argument that the potential for terrorism at political protests justifies widespread videography. "Orwellian" is what lawyer Jethro Eisenstein called that notion at a hearing last week, "because it is effectively saying peace is war and using terrorist threats to block critical thinking."
In one sense, the case hinges on the nuances of the judge's language: what he meant by what he wrote three years ago. The NYPD argues that Haight's ruling doesn't allow the court to intervene every time cops depart from the guidelines. "I think that has to be left to the police department's awareness of what it has to do to protect the public from terrorism," said Gail Donoghue, a city lawyer, at last week's hearing. In addition, she contended, the NYPD's hands are tied when it comes to destroying the videotapes, because when cops are sued for their conduct at protests, the videos might be needed as evidence.
Most importantly, the city argues that the Handschu lawyers have no case because no one has actually been injured by the videotaping policy. The NYPD isn't creating dossiers, Donoghue asserts, so protesters have no valid reason to be chilled. "No one is coming forward," she said.