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Indeed, there are protesters who aren't at all bothered by the presence of police cameras. One of those, a woman who attended last week's hearing bedecked in anti-war buttons, smiles when asked if the cop camcorders chilled her, saying, "Well, they warm me up." Joey Steel, a recent college grad who's involved with the Revolutionary Communist Youth Brigade and has been arrested six times in the past six months, does not seem overly concerned about having his picture taken. If nothing else, the fact that the NYPD is filming can be a badge of honor, indicating that at least you're making someone nervous.
But then there are the people who e-mail NYU professor Paul Chevigny, one of the Handschu lawyers, complaining about police filming; a recent message was headlined "Scary Shit." Leslie Cagan, national coordinator of United for Peace and Justice, says recent immigrants who might want to march are discouraged by the cameras. "I think those communities feel this kind of Big Brother approach is kind of intimidating," she says.
But the NYPD need look no further than its own ranks to find people upset about being videotaped. A lawsuit filed against the city by the Patrolmen's Benevolent Association (as well as other police and fire unions) alleges that the NYPD violated union members' rights during protests in 2004, when they were seeking better contract terms. "The NYPD's Internal Affairs Bureau conducted highly conspicuous filming of the protesters at these sites as an obvious intimidation tactic and without any basis for suspecting unlawful activity," their complaint, which specifically mentions Handschu, reads. "[The city's] restrictions on, and filming of, plaintiffs' leafleting and informational picketing . . . violated plaintiffs' rights to free speech, petition, and assembly," it continues, adding later on, "This has had a chilling effect on plaintiffs' speech."
But these complaints are beside the point, the Handschu lawyers say: They feel they don't have to produce new allegations because the police are bound by a settlement arising out of previous bad behavior. The NYPD's videotaping policy violates the remaining Handschu rules, and that alone is enough to warrant an order from the judge, they argue. "The reason that the court incorporated [the guidelines] was the police department cannot be trusted," says Eisenstein. "Why, given the history of what we know the police department has done, do we want to leave tapes of legitimate political expression in the hands of the police department?"
That track record makes the lawyers skeptical of Donoghue's contention that the NYPD is not creating dossiers on protest leaders. "I'm not willing to accept that, because she doesn't back it up with anything like an affidavit from someone at the intelligence division," says Martin Stollar, one of the team pushing Haight to rein in the NYPD. "She doesn't back it up with any specific notion that she has gone over and looked to see if that's true." A separate lawsuit concerning NYPD tactics at a 2002 animal rights protest uncovered a police spreadsheet with the names and addresses of people busted therea police document that, while it may have had a benign purpose, does link individual people with a political belief.
Remarkably, the city's lawyers suggested at last week's hearing that Judge Haight hold an evidentiary hearing on the Handschu dispute. The civil liberties lawyers were pleasantly surprised at the move. "They offered one and we'll gladly take it," says Stollar. "Anytime we can get David Cohen on the stand, we'll take it," he adds, referring to the NYPD's head of intelligence, a former CIA official.
Judge Haight could call such a hearing or simply rule now. Whichever he does, it's unlikely to be the final word in a case that has already outlived the first judge assigned to it and, Haight quipped, will live on after he too passes into "that ultimate senior status." As long as there's a city and a police department, he says, "there will always be a Handschu judge."
Meanwhile, Donoghue says the NYPD is working on a new interim order. And the Handschu lawyers have complained to the NYPD about yet another surveillance tactic: the infiltration of protest groups.