Just as lawyers for New York City are preparing for a hearing in federal court to close the books on lawsuits over the New York Police Department’s secret and illegal surveillance of Muslims, a lesser-known lawsuit that concluded Monday reveals that the police department’s records of its own ugly history of unconstitutional domestic surveillance, which it was required to preserve for posterity, have mysteriously gone missing.
Younger New Yorkers are probably familiar with the NYPD’s Muslim surveillance program, its infiltration of Occupy Wall Street with undercover officers, and its unconstitutional mass-arrests of protesters and bystanders during the 2004 Republican National Convention. But the history of NYPD surveillance and harassment of citizens based on their political, religious, or ethnic identities stretches back considerably farther. In the early years of the last century, special NYPD squads targeted Italians, anarchists, and communists. With the onset of the Great Depression, the NYPD’s “Radical Bureau” took up the surveillance of communist New Yorkers. By the 1960s, the Radical Bureau had been renamed Bureau of Special Services, and it was going after groups that included CORE, the ACLU, the NAACP, and the Black Panthers.
Some of the people targeted for political surveillance by the NYPD filed a class action suit in 1971, alleging that the police behavior violated constitutional rights to free speech and assembly, their right to due process, and their protection from unreasonable search and seizure. The suit dragged on for more than a decade, ultimately resulting in a consent decree named after the lead plaintiff, Barbara Handschu. The Handschu decree, which still governs NYPD behavior today, in modified form, is best known for committing the police not to investigate anyone’s political, ideological, or religious behavior unless they have reason to believe that person is engaged in a crime. But another section of the consent decree also required the NYPD to follow the New York City Charter and Freedom of Information Law with regard to its archive of surveillance files.
Judge Charles S. Haight Jr., who presided over the Handschu decree, specified that this meant that:
The upshot of the settlement is that no intelligence or political files, pre-1955 or post-1955, can be destroyed without the express approval of the City’s commissioner of records and information services, who is specifically charged by the Charter to base his determination ‘on the potential administrative, fiscal legal, research, or historical value of the record’…. I will not assume that the police commissioner would disregard the law by disposing of police records without seeking the requisite approval.
But as the lawsuit resolved Monday reveals, that seems to be exactly what happened. That suit was brought by Johanna Fernandez, a history professor at Baruch College, who first approached the NYPD a decade ago as she was researching a book about another group of political activists from the 1960s and ’70s, the Young Lords. Radical Puerto Rican nationalists, the Young Lords are a critical and fascinating piece of New York history. Inspired by the Black Panthers, the Lords combined militant tactics with a knack for getting things done in their community. Deeply embedded in Spanish Harlem, the group knew the neighborhood was profoundly underserved by the city. The Department of Sanitation was largely ignoring the area, and the streets were full of garbage. The Young Lords collected the trash, put it in the middle of the streets, and set it on fire. For weeks. Pretty soon, trash collection in the barrio improved markedly.
Working with doctors, the Lords tested East Harlem children and found lead-poisoning levels through the roof. They hammered the issue in the press, ultimately occupying the offices of the Department of Health. In 1970, the city created a new bureau to address lead poisoning. The Young Lords led the campaign to improve conditions at Lincoln Hospital in the South Bronx, a hospital so bad that rats were sometimes seen in the emergency room. When hospital officials ignored demands for change, the Lords conspired with doctors and nurses to seize the hospital. On July 14 of 1970, they did just that, running the hospital for 24 hours until they had negotiated a series of reforms from the city.
Throughout, the NYPD was keeping close tabs on the group. “[The police] were provocateurs,” says Fernandez. “They engaged in an enormous amount of surveillance of the group. And they had members of the NYPD who came to the office of the Young Lords on Madison Avenue and asked to join the organization for the purposes of undermining the work of the group.”
In researching her book, Fernandez recovered a small treasury of documents from the NYPD and other law enforcement agencies related to the Young Lords — some of it possibly brought to light by the 1971 robbery of a Pennsylvania FBI office that exposed the FBI’s COINTELPRO program. But rich documentation of the Young Lords is hard to come by, not least of all because the group, aware they were being spied on and infiltrated by the NYPD, destroyed many of their own records to protect themselves. Ironically, the police surveillance that helped scuttle the Young Lords probably generated the most complete record of its activities.
So after her informal request to the NYPD went nowhere, Fernandez filed a formal request for the NYPD’s records of the Young Lords through the Freedom of Information Law, and when that request turned up nothing, she sued for the records in 2014. The records Fernandez had already found from other sources showed the NYPD had once had substantial records, and so did reviews of the intelligence files conducted during the Handschu agreement process. But though Handschu precluded the department from unlawfully destroying any of those records, the NYPD and the City Law Department told Judge Alice Schlesinger the records Fernandez wanted couldn’t be found.
Neither the Municipal Records Management Division nor the NYPD could find any record that the Handschu material had been destroyed. The last time anyone outside the NYPD had scrutinized the records, in the 1980s, they were kept in Room 1206 at NYPD headquarters in 1 Police Plaza. The NYPD claims they were later transferred to a room in the Brooklyn Army Terminal. But searches of both those rooms by the NYPD came up empty.
In the course of the search, the police did come up with an additional 590 documents relevant to Fernandez’s request — but they were mostly index cards from a cataloging system that referred to the actual documents Fernandez was looking for. “The index cards point to a very complex and thorough web of information-gathering on the part of the NYPD,” Fernandez says. “It’s tantalizing, and it’s proof that other documents exist.”
Fernandez argued that the city’s nonchalant attitude towards the missing records wasn’t good enough, and pressed for it to widen its search. The city pushed back, saying Fernandez wanted them to engage in a “fishing expedition.” In her ruling Monday, Judge Schlesinger reluctantly agreed.
No one can be identified today who has the ability to determine where, if not the Handschu room, were the Room 1206 documents transferred. That is the problem. One I cannot solve, without, I believe directing the Department to go to all sorts of extremely burdensome lengths without any real hope or expectation that these documents will be found. I cannot and will not do that.
Asked for comment, a City Law Department spokesperson offered the following: “In response to this request for NYPD documents from 1960s and 1970s, the NYPD produced 590 pages of documents. The NYPD conducted a reasonable and good-faith search, but was unable to locate additional documents. We agree with the Court’s conclusion that NYPD should not be required to search further, as additional searching would not be likely to turn up the requested material.”
Martin Stolar, one of the class lawyers in the Handschu case, says the failure to produce the records is disturbing. “What’s at stake here is an extraordinarily important record of the uses and abuses of police powers against political movements, people’s movements,” he says. Stolar and the other Handschu lawyers will be back in court before Judge Haight on June 1 to discuss the settlement of the Muslim-surveillance lawsuits. “Where the documents are is not on the front burner for us at the moment,” he says. “Once the settlement is finalized, I think we may want to take a look at this.”
Fernandez says there’s more at stake with her lawsuit than a historian’s research. In an age of resurgent popular protest movements, from Occupy Wall Street to Black Lives Matter, the policing of popular movements is more relevant than ever. “Only when we document the systematic ways in which the police and government agencies have undermined social movements will social movements that are emerging today be able to voice their grievances and articulate freely their highest aspirations for a better society,” she says. “This is about the historical record, but it’s also about the project of democracy.”
The NYPD did not respond to requests for comment.
Fernandez says she intends to appeal the decision.
Here’s Judge Schlesinger’s decision: