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Class counsel in the long-running litigation over police surveillance of political demonstrations are allowed to challenge New York Police Department policies that disregard surveillance guidelines, a federal judge has ruled. Southern District Judge Charles Haight said that plaintiffs need not allege a constitutional violation in order to challenge NYPD policies under the terms of a 23-year-old consent decree governing surveillance of political groups. But Judge Haight also clarified that an order he issued in June 2007 leaves enforcement up to class counsel and bars individual legal actions based on violations of the guidelines. In Handschu v. Special Services Division , 71 Civ. 2203, the judge said the June ruling also bars actions “in the name of the plaintiff class based on isolated instances of violations of the NYPD Guidelines that do not rise to constitutional violations.” The decision will be published Friday. Last week’s decision came after the Corporation Counsel moved for relief from the 2007 order ( NYLJ, June 14, 2007). In the order, Judge Haight said that under the consent decree governing investigations of political activity, which was modified after Sept. 11, 2001, “police conduct must violate a class member’s constitutional rights in order to sustain a motion . . . to hold the NYPD in contempt.” In his opinion released Feb. 27, Judge Haight said the June 2007 ruling “appeared, on its face, to give the NYPD much of the relief it asked for. But Corporation Counsel remain dissatisfied. Brush fires of controversy continue to burn.” The city wanted the June ruling modified to reflect the “Reservation” section of the NYPD guidelines, Section X. The reservation states that police guidelines “may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party” and do not “place any limitation on otherwise lawful investigative and litigative prerogatives of the NYPD or the City of New York.” The city argued that any challenge to a policy for violation of the guidelines must be subject to a threshold determination of whether there is a legitimate law enforcement purpose for the challenged policy. It also said that determination should be made by the three-person Handschu Authority, which consists of a first deputy police commissioner, the department’s commissioner for legal affairs and a private citizen selected by the police department. In his reconsideration of the June ruling, Judge Haight clarified his understanding of Section X’s reservation. “I am unpersuaded by Corporation Counsel’s claim, based on the Section X Reservation, that the NYPD Guidelines place no limitation on police activity where there is a legitimate law enforcement purpose,” he said. “Such a reading would effectively eviscerate the substantive requirements of the NYPD Guidelines, and is unreasonable in the history and context of the case.” The police department had promised to adopt the guidelines, he said, and the judge had conditioned acceptance of the city’s earlier modification motion in June upon enacting the guidelines and incorporating them into the NYPD Patrol Guide. He then incorporated those guidelines into the consent decree and amended judgment. He rejected the Corporation Counsel’s argument that there should be a threshold determination made even before there is an application to the court on whether surveillance has a legitimate law enforcement purpose. He also rejected preliminary review by the Handschu Authority. Videotaping In a related ruling, Judge Haight addressed a motion by class counsel for discovery of documentation required by Interim Order 47, which was issued by Commissioner Raymond Kelly to regulate police photographing and videotaping of public demonstrations. Interim Order 47 requires a ranking officer to submit a typed request for videotaping or photography equipment to be used, the date, time and place of the event to be recorded, the identity of the persons or group involved and “the specific permissible objective” to be achieved by the taping. The interim order also calls for a log to be kept and the tapes or images to be preserved. Discovery, class counsel argued, would show “that the NYPD videotaping policy involves the widespread and systematic recording of political activity in circumstances where such recording is not supported by a law enforcement purpose and that, therefore, it is the custom and practice of the NYPD to violate the Modified Handschu Guidelines.” Judge Haight said there was a bit of “advocate’s breast-beating” in class counsel’s claim that it is the department’s practice and policy to violate the modified Handschu guidelines. “The only evidence presently in the record has to do with the videotaping of two public demonstrations referred to in prior opinions, where the descriptions contained in the affidavits submitted by class member witnesses and NYPD attorney witnesses are irreconcilable,” he said. But the judge ruled in class counsel’s favor, saying, “I think it obvious that the request discovery may shed light on disputed factual issues with respect to the NYPD’s implementation of Interim Order 47.” Jethro Eisenstein of Profeta & Eisenstein, one of the attorneys who represents the plaintiff class, said the last year has been a bit of a “roller coaster.” “In February [the judge] issued a ringing ruling that the rules applied and then in June he issued the motion to reconsider and appeared to be backtracking,” Mr. Eisenstein said. But the latest decision “has great significance,” he added, “because Judge Haight has confirmed that the lawyers representing the plaintiff class retain the power to challenge NYPD policies that disregard the guidelines regarding the surveillance of political activity and that the guidelines are enforceable by the court. The city took the position that these were entirely internal documents and no one could challenge them unless there was a constitutional violation.” Mr. Eisenstein is joined in representing the plaintiffs by Arthur Eisenberg of the New York Civil Liberties Union, Professor Paul G. Chevigny of the New York University School of Law, and Martin R. Stoler and Franklin Siegel. Special Counsel Gail Donoghue of the Corporation Counsel’s office said, “The judge has given some limited discovery, but otherwise adhered to his earlier decision in which he stated the NYPD could not be held in contempt unless it violates the constitution.” - Mark Hamblett can be reached at [email protected] .

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