NYPD Barred from Videotaping Criminals in Public

[Jackalope]

Judge Restricts New York Police Surveillance

By JIM DWYER

In a rebuke of a surveillance practice greatly expanded by the New York Police Department after the Sept. 11 attacks, a federal judge ruled today that the police must stop the routine videotaping of people at public gatherings unless there was an indication that unlawful activity may occur.

Nearly four years ago, at the request of New York City, the same judge, Charles S. Haight Jr., had given the police greater authority to investigate political, social and religious groups.

In today’s ruling, however, Judge Haight of Federal District Court in Manhattan found that by videotaping people who were exercising their right to free speech and breaking no laws, the Police Department had ignored the milder limits he had imposed on it in 2003.

Citing two events in 2005 — a march in Harlem and a demonstration by homeless people in front of the Upper East Side home of Mayor Michael Bloomberg — the judge said the city offered scant justification for videotaping the people involved.

“There was no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens and the signs by which they hoped to convey their message to a public official.”

While he called the police conduct “egregious,” Judge Haight also offered an unusual judicial mea culpa, taking responsibility for his own words in a 2003 order that, he conceded, had not been “a model of clarity.”

The restrictions on videotaping do not apply to bridges, tunnels, airports, subways or street traffic, Judge Haight noted, but are meant to control police surveillance at events where people gather to exercise their rights under the First Amendment.

"No reasonable person, and surely not this court, is unaware of the perils the New York public faces and the crucial importance of the N.Y.P.D.’s efforts to detect, prevent and punish those who would cause others harm," Judge Haight wrote.

Jethro Eisenstein, one of the lawyers who challenged the videotaping practices, said Judge Haight’s ruling would make it possible to contest other surveillance tactics, including the use of undercover officers at political gatherings. In recent years, police officers have disguised themselves as protesters, shouted feigned objections when uniformed officers were making arrests, and pretended to be mourners at a memorial event for bicycle riders killed in traffic accidents.

“This was a major push by the corporation counsel to say that the guidelines are nice but they’re yesterday’s news, and that the security establishment’s view of what is important trumps civil liberties,” Mr. Eisentstein said. “Judge Haight is saying that’s just not the way we’re doing things in New York City.”

A spokesman for Police Commissioner Raymond W. Kelly referred questions about the ruling to the city’s lawyers, who noted that Judge Haight did not set a deadline for destroying the tapes it had already made, and that the judge did not find the city had violated the First Amendment.

Nevertheless, Judge Haight — at times invoking the mythology of the ancient Greeks and of Harold Ross, the founding editor of The New Yorker — used blunt language to characterize the Police Department’s activities.

“There is no discernible justification for the apparent disregard of the Guidelines” in his 2003 court order, the judge said. These spell out the broad circumstances under which the police could investigate political gatherings.

Under the guidelines, the police may conduct investigations — including videotaping — at political events only if they have indications that unlawful activity may occur, and only after they have applied for permission to the deputy commissioner in charge of the Intelligence Division.

Judge Haight noted that the Police Department had not produced evidence that any applications for permission to videotape had ever been filed.

Near the end of his 51-page order, the judge warned that the Police Department must change its practices or face penalties

“Any future use by the N.Y.P.D. of video and photographic equipment during the course of an investigation involving political activity” that did not follow the guidelines could result in contempt proceedings, he wrote.

At monthly group bicycle rides in lower Manhattan known as Critical Mass, some participants break traffic laws, and the police routinely videotape those events, Judge Haight noted. That would be an appropriate situation for taping, he said, but police officials did not follow the guidelines and apply for permission.

“This is a classic case of application of the guidelines: political activity on the part of individuals, but legitimate law enforcement purpose on the part of the police,” Judge Haight wrote. “It is precisely the sort of situation where the guidelines require adherence to certain protocols but ultimately give the N.Y.P.D. the flexibility to pursue its law enforcement goals.”

Gideon Oliver, a lawyer who has represented many people arrested during the monthly bicycle rides, said he is troubled by the intensive scrutiny of political activities.

“I’m looking forward to a deeper and more serious exploration of how and why this surveillance has been conducted,” Mr. Oliver said.

In the past, the Police Department has said that it needed intelligence about the Critical Mass rides in order to protect the streets from unruly riders.

Patrick Markee, an official with another group that was cited in the ruling, the Coalition for the Homeless, said the judge’s decision ratified the group’s basic rights to free speech. “We’re gratified that Judge Haight found that the police shouldn’t engage in surveillance of homeless New Yorkers and their supporters when they’re engaged in peaceful, lawful political protest,” Mr. Markee said.

The Police Department’s approach to investigating political, social and religious groups has been a contentious subject for most of four decades, and a class-action lawsuit brought by political activists, including a lawyer named Barbara Handschu, was settled in 1985. Judge Haight oversees the terms of that settlement, which are known as the Handschu Guidelines, and which he modified in 2003.

At the time, Judge Haight said that the police could “attend any event open to the public, on the same terms and conditions of the public generally.”

But in today’s ruling, he said that permission “cannot be stretched to authorize police officers to videotape everyone at a public gathering just because a visiting little old lady from Dubuque (to borrow from The New Yorker) could do so. There is a quantum difference between a police officer and a little old lady (or other tourist or private citizen) videotaping or photographing a public event.”

The judge said he bore some responsibility for misinterpretation of the guidelines.

“I confess with some chagrin that while the text of this opinion and its implementing order, read together, may not be as opaque as the irritatingly baffling pronouncements of the Oracle at Delphos, they do not constitute a model of clarity,” he wrote.


In other words, the police have less rights than the public.

[tapout]

ok, ill abide by this when they ban the public from video taping me while im conducting a traffic stop, or responding to a fight in the street, etc...or when they ban the paparazzi from videotaping celebrities in aspect of their private life. this is a joke.

[BigDawg]

I dont understand how they can limit our rights, but not the publics rights. If these people are doing these demostrations in public they have no expectation of privacy. If the public can freely videotape them, then by god so can I. Hold me in contempt Judge, and then we will take your decision to the Supreme court.

[countybear]

This ruling oversteps a district court's boundaries, and could certainly impact far beyond it's intended scope. Intersection traffic cameras, police in-dash video, etc. could all be approached were this ruling to be used in precedence. I expect a quick reversal in Circuit, should it be pressed.

[Motorwaycop]

Good job that ruling doesn't apply here.
I think it is a matter of routine for us to film demonstrations, it's called evidence gathering, and is very much a question of you film us we'll film you!

[Hannibal]

ok, ill abide by this when they ban the public from video taping me while im conducting a traffic stop, or responding to a fight in the street, etc...or when they ban the paparazzi from videotaping celebrities in aspect of their private life. this is a joke.

agreed 10,000%

[BigDawg]

I should hope that the NYPD fights this ruling and doesnt take this lying down. Maybe they should protest.

[countybear]

I should hope that the NYPD fights this ruling and doesnt take this lying down. Maybe they should protest.

If they do, no one better video it either, damn it!

[Jks9199]

What the hell?!

You got a group assembled in a public area, where anyone can watch, monitor and photograph them... Unless the person doing so happens to be a police officer. (Does that mean that an off-duty officer can't take pictures/video as a tourist?)

I get the concern about Big Brother... But we're talking about PUBLIC assemblies. Where's the friggin' write to privacy if you're standing in public?

[lewisipso]

If they can video me I'll video them. He can stick that in his District Court and rule on it.

[countybear]

What the hell?!

You got a group assembled in a public area, where anyone can watch, monitor and photograph them... Unless the person doing so happens to be a police officer. (Does that mean that an off-duty officer can't take pictures/video as a tourist?)

I get the concern about Big Brother... But we're talking about PUBLIC assemblies. Where's the friggin' write to privacy if you're standing in public?

The courts have used the test of "reasonable expectation of privacy" in nearly all such decisions regarding surveillance (which they equate with search and siezure, for legality purposes). This is exactly what I meant when I said that they have way overstepped here. I completely agree with Jks here... What "reasonable expectation of privacy" can a person have during a public assembly?

This is why I said I would expect an extremely swift reversal on appeal. The ruling by the District Court judge is sheer idiocy.

[Dinosaur32]

A private citizen (including off duty LEO) on his own volition can photo, film, video anything he wants. The Government cannot. The Government, much like a Terry search, must articulate a reason to infringe on your right to assemble publicly.

[Norm357]

The thread title is mis leading. This Judges ruling has nothing to do with criminals.

[Jenna]

I should hope that the NYPD fights this ruling and doesnt take this lying down. Maybe they should protest.

So if an on-duty NYPD officer were protesting this ruling, would it be illegal for her to hold a videocamera in front of her own face while doing so?

[Aegis]

A private citizen (including off duty LEO) on his own volition can photo, film, video anything he wants. The Government cannot. The Government, much like a Terry search, must articulate a reason to infringe on your right to assemble publicly.

I guess I fundamentally disagree that photographing, videotaping, or producing a pencil sketch of any event that occurs in a public place is in any way infringing on anyone's right to assemble. Forcing them to leave the area, or arresting them for no other reason than an otherwise lawful assembly in a public area would infringe.

I feel that the "Government" could articulate the reason that they filmed a specific public area with little trouble. (E.G. pedestrian traffic study, vehicle traffic flow study, traffic impact due to large pedestrian gathering. ) The question is, why should they have to justify filming a public location to begin with? My dash cam has pre-event recording. So, if I happen to be facing a bunch of people walking down the sidewalk right before I hit the lights to go get a violator, does that mean I have infringed on their right to assemble publicly?

[Dinosaur32]

Aegis....The problem arises when the government fails to provide a reason other than simply wanting to know who is at the protest. Sending out a photographer with directions to film the event from the point of view of traffic flow, pedestrian safety might be consider a pretextural move but a court might accept it.....much like a pretextural traffic stop.

[Ducky]

There needs to be a 'news' crew to show up and tape the events and talk to people, get their opinions, etc. You know, WNYP(D)

[Aegis]

Aegis....The problem arises when the government fails to provide a reason other than simply wanting to know who is at the protest. Sending out a photographer with directions to film the event from the point of view of traffic flow, pdestrian safety might be consider a pretextural move but a court mught accept it.....much like a pretextural traffic stop.

I don't disagree with your assessment of what the argument is against filming/photographing a public gathering in a public place. Clearly you do understand the contentions involved.

I just happen to disagree with those particular contentions. I do not feel that the "Government" needs to justify filming/photographing a public event where there can be no true expectation of privacy by the attendees. The "Government" should be as free to video/photograph that event as would any private citizen, or even non-citizen for that matter, under the 1st amendment.

The "check" for the Government, in my opinion, is what they do with that media once they have obtained it. If they are using the info to create dossiers on attendees that broke no laws or committed no violations, then they have "crossed the line" so to speak. But, if they simply tape the event and observe someone committing an assault or criminally damaging property, then that tape should be used as evidence for the investigation of the crime.
If they tape the event and observe no crimes, then the tape should be stored with the same requirements as dash cam tapes that do not have evidence contained on them.

I am not intimately familiar with the surveillance that the NYPD did in the 60's and 70's,(which was mentioned in the article) but my understanding was that they were creating files on attendees that had committed no crimes, and were doing much more than just filming public events. The NYPD seemed to be acting more as a spy agency with their program back then. I think that is much different than simply recording a public event with no further action taken in the absence of any observed criminal activity.

[Dinosaur32]

NYPD's history of agressive intelligence gathering (rather successful) lurks behind this ruling. The win for the protestors is not as big as one would assume.