Judge Curbs Videotaping by Police

By JOSEPH GOLDSTEIN, Staff Reporter of the Sun
February 16, 2007

Police officers in New York will have to stop videotaping political demonstrations absent authorization from a top officer in the department, a federal judge ruled yesterday.

Judge Charles Haight of U.S. District Court in Manhattan in his decision rebuked the police department for sending officers to conduct such surveillance without providing written reasons for their investigations.

Under a court order, police officers can conduct surveillance of political activity only with permission from the police deputy commissioner for intelligence, David Cohen. Furthermore, such surveillance can be conducted only in the context of a criminal investigation or for anti-terrorism purposes, Judge Haight ruled previously.

Judge Haight said the police department has been ignoring these restrictions.

Indeed, Judge Haight reprinted in his decision a portion of a letter from Mr. Cohen, the deputy commissioner, indicating Mr. Cohen has never received a request to authorize photographic surveillance of demonstrations or rallies.

"To date, I have not received any requests from any NYPD commands to use photographic equipment for the purpose of monitoring political activity at demonstrations or other public events," Mr. Cohen wrote, according to Judge Haight's decision. Mr. Cohen's letter is under court seal.

Nonetheless, such surveillance has occurred without Mr. Cohen's permission, Judge Haight concluded. Judge Haight cited testimony suggesting the police department videotaped two rallies and a well-attended monthly bike ride through city streets. One rally was sponsored by the international Action Center and involved a walk to Central Park from Marcus Garvey Park in 2005. The second occurred the same year near Mayor Bloomberg's townhouse and was attended by 50 advocates for the homeless population.

Judge Haight said evidence "strongly suggests" that the police have been interpreting an internal order as giving officers authorization "to videotape or photograph individuals engaged in nothing more than constitutionally protected political activity, with no reason for the police to suspect or anticipate unlawful or terrorist activity."

While the department's videotaping of the events did not rise to a violation of the First Amendment rights of the protesters, Judge Haight ruled that the police department was violating the court order governing surveillance of political activities.

Those guidelines are the result of a 36-year-old court case, called Handschu, which Judge Haight calls the "the class action eternal."
In 2003, Judge Haight had relaxed the restrictions in response to the September 11, 2001, terrorist attacks.

Judge Haight ruled that the guidelines did likely authorize police officers to videotape monthly mass bike rides, called Critical Mass, because the riders regularly broke traffic rules. Still, permission must first be obtained from Mr. Cohen.

"Certainly, any future use by the NYPD of video and photographic equipment during the course of an investigation involving political activity without compliance to the Guideline's protocol could form the basis for a contempt proceeding," Judge Haight wrote, adding that his decision was to be forwarded to all NYPD unit commander's with the instruction that it be read carefully.

In a statement, a lawyer for the city, Gail Donoghue, noted that Judge Haight had rejected the request of plaintiffs that the police department destroy its surveillance tapes of political activity.