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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.
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.