A Judge Keeps His Eye on Police Spies

By NY Editorial Board

The New York Police Department has had a long history of trampling on the constitutional rights of law-abiding citizens engaged in political movements and other activities through illegal and suspicionless surveillance.

Judge Charles Haight of Federal District Court in Manhattan pointed to that dishonorable record in a ruling made public on Monday in which he rejected the proposed settlement of two lawsuits brought against the city’s Police Department for its surveillance of Muslim citizens. The judge is right not to accept the settlement unless the city and the plaintiffs’ lawyers agree on a revision to strengthen oversight of the Police Department’s intelligence operation.

The issue of police surveillance was the subject of a landmark class-action lawsuit in 1971, when civil rights lawyers uncovered the activities of the Police Department’s Red Squad, which tried to subvert and disrupt the Black Panthers, who were acquitted of plotting to blow up police stations and other buildings in the city. That suit, named for the plaintiff Barbara Handschu, was broadened to include other groups and was settled in 1985. It prohibited the city from investigating political or religious groups unless the group is linked to a crime that has happened or that is about to be committed.

After the 9/11 attacks, the city — with the court’s agreement — relaxed those guidelines to allow the police broad authority to root out terrorist threats. But it didn’t take long for the department to stray beyond the broadened parameters. In 2003, Judge Haight, who oversees the Handschu case, chastised the city after learning that police officers had questioned demonstrators protesting the Iraq war about their political beliefs, including their views on President George W. Bush.

In 2011, press accounts revealed that the police were spying on Muslims in New York. The Handschu lawyers subsequently went back to court, arguing that the city was ignoring the guidelines by targeting Muslim groups for infiltration and surveillance because of their religious affiliation. The police had created open-ended “terrorism enterprise investigations” that were clearly intended to circumvent the Handschu guidelines. The department kept records on casual conversations among Muslims, used informants to spy on student groups and scrutinized Muslim congregations for years, though no charges were ever filed against a mosque.

In January, Mayor Bill de Blasio agreed to settle the two lawsuits by appointing a civilian lawyer as a monitor on the panel that oversees the Police Department’s counterterrorism activities. Under the proposed settlement, the civilian monitor would report violations of the guidelines to the police commissioner or the judge. The mayor would also have the authority to eliminate the monitor position in five years if he chose to, without judicial review.

Judge Haight properly concludes that this arrangement would give the city too much power over the civilian monitor and provide too little protection from potential constitutional violations. He has offered suggestions for a better settlement, which include a more effective system for monitoring investigations; requiring the civilian monitor to provide the court with detailed quarterly reports; and restricting the mayor’s power to do away with the monitor without the court’s permission.

“It is a historical fact that as the decades passed, one group or another came to be targeted by police surveillance activity,” Judge Haight wrote in his ruling. The changes he proposes to the settlement are reasonable and, if carried out, will better protect all citizens from unconstitutional spying.

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