The opinion of the court was delivered by: HAIGHT
This is a class action under 42 U.S.C. § 1983, originally brought against the Mayor of the City of New York, its Police Commissioner, and other police officials who played a role in the Security and Investigation Section ("SIS") of the New York City Police Department ("NYPD"). The action embraces the named defendants and any successor organization or unit within the NYPD or, in the case of individual defendants, their successors in office of function. In point of fact, the NYPD unit whose activities form the subject matter of the litigation is now called the Public Security Section ("PSS") of the NYPD's Intelligence Division. The original individual defendants have been replaced by successors.
The complaint, filed in 1971, was in the name of sixteen individual plaintiffs, affiliated with various named political action groups, who on behalf of themselves and other similarly situated claimed that the SIS had violated their constitutional rights by various surveillance and other activities.
Defendants moved to dismiss the complaint under Rule 12(b)(1) and (6), F.R.Civ.P. They also challenged maintenance of the suit as a class action. Judge Weinfeld denied the motion to dismiss. 349 F. Supp. 766 (S.D.N.Y. 1971). His opinion contains a useful summary of plaintiffs' claims:
"The complaint alleges that certain practices and conduct of SIS infringe plaintiffs' constitutional rights and these are set forth under seven specific categories: (1) informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5) summary punishment; (6) intelligence gathering; (7) electronic surveillance. In end result it is charged that these practices have a 'chilling effect' on plaintiffs and members of their class in the exercise of their constitutional rights of freedom of speech, assembly and association; that they violate their rights against unlawful search and seizure because the SIS proceeds without obtaining warrants or judicial authorization; also that they violate their rights of privacy and to substantive and procedural due process; and finally, that the effect of such activities is to visit upon them cruel and unusual punishment. Thus, the broad sweep of plaintiffs' complaint charges violations of the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution."
He left the question of class certification for another day. Id. at 771.
After discovery addressing the issue, this Court certified a class pursuant to Rule 23(a), (b)(1)(A) and 2. The class was defined as follows:
"All individuals resident in the City of New York, and all other persons who are physically present in the City of New York, and all organizations located or operating in the City of New York, who engage in or have engaged in lawful political, religious, education or social activities and who, as a result of these activities, have, been, are now or hereafter may be subjected to or threatened by infiltration, physical and verbal coercion, photographic, electronic and physical surveillance, provocation of violence, recruitment to act as police informers and dossier collection and dissemination by defendants and their agents."
Memorandum Opinion and Order of May 24, 1979.
The case is now before the Court on the motion of counsel for plaintiff class and defendants to approve a negotiated settlement, of which the class was given appropriate notice.
A fairness hearing has extended over a number of days, interspersed by requiring defendants to answer interrogatories as to the meaning and implementation of the settlement, and the filing of extensive briefs and presentation of oral argument.
The settlement is resisted by a number of class members (hereinafter the "objectors").
At first, certain objectors contended that the certified class was unworkably broad and vague, reached impermissibly into the future, usurped a legislative function, and was "facially unconstitutional."
However, in section 1983 litigation against the Chicago police department and other law enforcement agencies, which in other respects the objectors regard with relative favor, virtually identical class certifications issued. See Alliance to End Repression v. Rochford, 565 F.2d 975, 976 (7th Cir. 1977); Alliance to End Repression v. City of Chicago, 91 F.R.D. 182, 187 (N.D.Ill. 1981); Alliance to End Repression v. City of Chicago, 561 F. Supp. 537, 541 (N.D.Ill. 1982). Objectors, confronted by that precedent, still profess unease with the class description but no longer argue "that the class is on its face unconstitutional." Main brief at 54.
Nor is it: as the Alliance courts, trial and appellate, recognized, where class litigation seeks to safeguard broad constitutional rights in futuro, the class must be equally broad in scope and time. If the class could not be so structured, class actions would cease to be a viable alternative means of challenging police surveillance activities. Individual suits, and efforts (surely problematical) to obtain legislation, would remain; but precedent shows that class actions have a potentially useful role to play. There is an irony in condemning as "unconstitutional" because of its boundaries a class whose boundaries are necessitated by the constitutional interests sought to be protected.
The class certification is appropriate. Accordingly the motion turns upon the merits of the proposed settlement, whose provisions will now be considered.
The proposed settlement takes the form of a Stipulation of Settlement to be endorsed by Court order, and "Guidelines" incorporated by reference in the stipulation. Copies of these documents appear as Appendix A to this opinion. The salient features are summarized below.
The Stipulation provides for discontinuation of the action with prejudice upon defendants' satisfaction of specified terms and conditions. These include the promulgation and adoption of the Guidelines within 30 days of entry of the Court-approved stipulation, p. 3, P1.
Paragraphs 2-5 of the Stipulation deal with the inspection and disposition of past and current files maintained by PSS and its predecessors. Paragraph 6 contains procedures for claimed violations of the Stipulation. Paragraph 7 specifies the claims that the Stipulation settles. I discuss these provisions infra. First I will summarize the Guidelines.
The Guidelines deal with future collection, retention and dissemination of information by the PSS. They begin with a "General Statement of Policy" which reads as follows:
"Activities of the Public Security Section (hereafter PSS) of the Intelligence Division will conform to constitutionally guaranteed rights and privileges. Information shall be collected, retained and disseminated by the PSS only in accordance with the provisions set forth herein."
Section II of the Guidelines contains certain definitions. One of them defines the "Authority" as "a board established pursuant to Section III of these Guidelines." Section II(B). Section III establishes the "Authority" referred to in Section II(B). Section III provides:
"There is hereby established an Authority to oversee the activities of the PSS of the Intelligence Division. It shall consist of three members who shall act as a body, to wit, the First Deputy Commissioner of the Police Department, the Deputy Commissioner for legal Matters of the Police Department, and a civilian member appointed by the Mayor upon a consultation with the Police Commissioner for a term revocable at will. The decisions of the Authority as set forth herein shall be by majority vote and shall be binding upon the PSS. The day-to-day operations of the PSS of the Intelligence Division shall continue to be the responsibility of the Commanding Officer, Intelligence Division."
Section IV is captioned "Conduct of Investigations and Role of Authority." Section IV(A) provides generally:
"The Police Department shall not engaged in any investigation of politicalactivity except through the PSS of the Intelligence Division or its successor and such investigations shall be conducted as set forth in these guidelines."
The section then deals with a number of specific situations and contingencies.
The first of these is triggered by "receipt of information concerning a planned event," Section IV(B). The PSS "may conduct an Event Planning Inquiry (EPI) in order to preserve the peace, deploy manpower for control of crowds and to protect the right of individuals to freedom of speech and assembly." Police personnel conducting an EPI must identify themselves as such to the sponsoring organization, its officials or persons in authority. The police may seek only limited information about the planned event. Section B(IV) (1-10). While PSS may retain information concerning past events, it may be used "only to document claims for governmental funding or reimbursement, and to assist in allocation of Police Department resources for future events." No individual or group names will be included in PSS files because they were included in an EPI report; nor shall other EPI-generated information be retained unless a Section IV(C) investigation is undertaken.
"When specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime the PSS is authorized to commence an investigation of such person or group,"
subject to limitations thereafter specified.
Section IV(C)(1) requires PSS, before initiating an investigation, to submit to the Authority "an Investigation Statement which specifies the factual predicate therefor." The statement may be filed within 48 hours after initiation "upon good cause shown." A Section IV(C) investigation may be conducted for 30 days without the Authority's approval, provided an Investigation Statement has been filed. Section IV(C)(2). Within 30 days after initiation of an investigation PSS must request in writing the Authority's approval to continue it, summarizing the information obtained to date. The Authority may grant the extension for an additional 60 days if "PSS has demonstrated good cause for the investigation and demonstrated that such extension is necessary to reasonably pursue the investigation," Section IV(C)(4)(a); or deny it if PSS fails to make these showings, Section IV(C)(4)(b), in which event the Authority directs discontinuance of the investigation, the submission of a report, and determines the disposition of the files generated by it. These procedures govern "each subsequent request made to the Authority by the PSS." Ibid.
Section IV(C)(5) provides as follows:
"The Authority shall not be a substitute for any prior judicial screening required by law. Accordingly, these procedures shall not be construed either to prevent or relieve the PSS, where applicable provisions of law require, from seeking a judicial warrant authorizing conduct, such as searches and seizures of persons, places or things or communications, for which such warrant is required by law."
Section IV(C)(6) regulates the use of "undercover personnel" in Section IV(C) investigations. "Undercover" is defined by Section II(D) as follows:
"An employee or agent of the New York City Police Department who joins or participates in a political organization for the purpose of investigation without disclosing police affilation."
Subject to "exigent circumstances" discussed below, use of undercovers is permitted "only after approval by the Authority," which the Commanding Officer of the Intelligence Division must seek in a writing setting forth "all the salient facts of the investigation, as well as the reasons for the application." Section IV(C)(6). Section IV(C)(6)(a) provides:
"Approval will be granted only upon a showing to the Authority that there is good cause for the investigation and that the use of undercover personnel is essential to develop information about the activities of the person, group or organization under investigation. In the absence of such a showing, approval for the use of undercover personnel shall be denied."
The Authority must act on a request for undercovers within 15 days. The approval is for 30 days. "Extensions for 60 day periods shall be sought and may be granted on the same terms and conditions as approval in the first instance." Section IV(C)(6)(b).
Section IV(C)(6)(c) provides:
"Upon a showing of exigent circumstances, the request for approval may be submitted within 48 hours, exclusive of Saturdays, Sundays or legal holidays, after the commencement of use of undercover personnel. The Authority shall act on each such request within ten days. If exigent circumstances are not shown, such request for approval shall be summarily denied, and the Authority shall order the undercover operation terminated."
Section IV(c)(7) deals with the attendance of "investigators at public activities of political organizations." Section II(E) defines an "investigator" as follows:
"An employee of the New York City Police Department who attends public functions of a political organization for the purpose of gathering information on political activity without disclosing police affiliation."
Investigators, except for the collection of Section IV(B) information, are subject to the Guidelines procedures, which require the filing of an Investigation Statement, but not the Authority's prior approval.
Section IV(C)(8) provides that the use of electronic or mechanical surveillance "in cases where a warrant is not required by law" are subject to Guidelines procedures, which require the filing of an Investigation Statement, but not the Authority's prior approval.
Section V is captioned "Review of Records to Determine Compliance." Section V(A) permits any person or group or organization member having reason to believe that the person, group or organization has been named in PSS files "as a result of an investigation in connection with or related to his, her or its political activities"
to request in writing that the Authority inquire of the PSS whether it maintains a file including that name. The PSS must disclose to the Authority whether an investigation was conducted with respect to the individual, grouped or organization; the manner in which it was conducted; and the information gathered. The Authority must determine whether "an investigation was conducted in conformity with these Guidelines . . . ." If no file containing the name exists, or if the Authority determines that the investigation conformed to the Guidelines, the Authority so notifies the requesting party, recording the fact in the annual report required by Section IX.
Under Section V(B), "[i]f the inquiry reveals or the Authority otherwise becomes aware" that an investigation departed from the Guidelines, the Authority is required to obtain full information and documents from PSS, conduct an inquiry into the cause of non-compliance, and report to the Police Commissioner, who "shall initiate disciplinary measures as appropriate." Section V(B)(1)-(3). The Authority also must determine "the disposition of any information improperly acquired," Section V(B)(4). In connection with that determination the Authority must notify the subject individual or group of non-compliance and, upon the latter's request, grant permission to inspect the improperly acquired material, Section V(B)(4)(a), unless disclosure "would result in a substantial threat to the life of safety of an individual; or where there is a predicate for an on-going investigation" under the Guidelines, Section V(B)(4)(e). The Authority may also consider ultimate destruction or retention of the material. Section V(B)(4)(c), (d).
Section V(C) forbids the commencing of an investigation "solely because a party requested a review of records as provided herein."
Section VI is captioned: "Permitting Entries to Files and Index Cars [sic]
of Police Security Section--Specific Criteria." Information may be collected, maintained and indexed only when collected pursuant to the Guidelines. Section VI(A). Information from publicly available sources may not be indexed or filed in PSS. Ibid. "An individual's or organization's political, religious, sexual or economic preference may not be the sole basis upon which the PSS develops a file or index card on that individual or organization." Section VI(C). Without the written authorization of the Authority, the PSS may not maintain information that an individual has signed a political petition, or that his or her name appears on a mailing list, or that he or she has "monetarily supported a political or religious group or its aims," or has "authorized a published writing expounding a particular political or religious view." Section VI(B).
Section VII governs "Dissemination of Records." Distribution of information collected under the Guidelines is limited "to law enforcement agencies or government agencies conducting security clearance procedures." Section VII(A). The Commanding Officer of the division, or an available superior officer in his absence, must screen all requests for intelligence information. Section VII(B). Detailed internal records are generated by requests. Ibid. Requesting parties are put on notice of the Guidelines, and a restrictive statement advising of the Guidelines and this Court's order is stamped on the forwarding letter. Section VI(D). Further records are generated by actual dissemination. Section VI(E). If any information on file is subsequently found to be inaccurate, the Commander must so notify all agencies to which it was disseminated. Section VI(F).
Sections VIII and IX specify review and reporting procedures. Every 12 months the Intelligence Division Commander must cause a review to be made of the PSS files, and submit a written report to the Authority, for the purpose of determining "to the fullest extent possible that no files are being kept which violate Guidelines." Section VIII. Each calendar year the Authority must forward a comprehensive statistical report, including "[t]he number of violations of these procedures by the PSS and the remedial steps taken," to the Police Commissioner for submission to the Mayor. Section IX.
The Stipulation of Settlement, after specifying defendants' promulgation of the Guidelines as its first condition, goes on to deal with the disposition of presently existing files of PSS and its predecessor agencies.
Defendants currently maintain information on index cards and files at Police Headquarters. The Stipulation permits them to dispose of all cards and files predating January 1, 1955 "in accordance with law." Stipulation P2. Files containing entries made on or after January 1, 1955 and before January 1, 1960 will be retained for six months following entry of the Stipulation, and files containing entries from January 1, 1960 to the date of entry will be retained for one year. P2(a), (b).
Within 30 days of the entry of the Stipulation, defendants are to give notice by publication in the New York Times of class members' right to inspect and copy these files. That right of inspection and copying exists during the six-month and one year periods specified in P2. Those requesting inspection must fill out a form, identifying themselves, and (if applying on behalf of an organization) demonstrate their authority to do so, or (in the case of defunct organizations) affirm that they were once members. P3. The PSS will review its files in response to such a request, and advise the requesting party of the existence of non-existence of material, further giving a date for inspection and copying if material exists. Ibid. Disclosure, inspection and copying may be denied:
". . . when the requested file relates to a current investigation or when information was collected in the course of an investigation based on specific information that the subject engaged in, or threatened to engage in conduct constituting a crime or when the disclosure of the file would endanger the life or physical safety of any person. In case of any denial, the appeal procedure shall be a written request for review by the Authority established in the annexed guidelines. This procedure may also be employed for denial of the existence of requested information."
The police will not retain any list of persons who invoke these procedures. P5. After the time periods specified in P2(a) and (b), the defendants may, in respect of files for which no request has been received, dispose of them "in accordance with law."
The two concluding paragraphs of the Stipulation are set forth in their entirety:
"6. Counsel for plaintiffs shall notify defendants by certified mail of any claimed violation by defendants of the provisions of this stipulation. That notice shall specify the violation and shall be made to both the Office of the Corporation Counsel and the Police Commissioner. Counsel for plaintiffs agree to provide 30 days notice of any claimed violation by defendants of the provisions of this stipulation in order to give defendants a reasonable opportunity to cure such claimed violations as a condition precedent to moving to punish defendants for contempt.
"7. This stipulation constitutes a full and final adjudication with respect to the claims of the plaintiff class for injunctive and declaratory relief as stated in the complaint. Any claim based solely upon the collection and/or retention of information about a person or an organization by the New York City Police Department is also settled by this stipulation."
The Criteria and Bases for Judicial Review of the Proposed Settlement
In Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982), cert. denied, 464 U.S. 818, 104 S. Ct. 77, 78 L. Ed. 2d 89 (1983), Judge Friendly wrote: "The central question raised by the proposed settlement of a class action is whether the compromise is fair, reasonable and adequate . . . The primary concern is with the substantive terms of the settlement: 'Basic to his . . . is the need to compare the terms of the compromise with the likely rewards of litigation.'" (citing and quoting Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25, 20 L. Ed. 2d 1, 88 S. Ct. 1157 (1968)).
The measure of litigation's "likely rewards" depends on the nature of the suit. If it is for money damages, the settlement amount is measured against the amount plaintiffs are likely to recover, having in mind the risks of litigation. Where, as here, the suit sounds only in equity, the relief achieved by the proposed settlement is measured against the Court's likely decree after trial. That exercise has two components: (1) plaintiffs' prospects of proving their claims, and (2) assuming plaintiffs' success on the merits, the likelihood of the Court giving the requested declaratory and injunctive relief. Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 197-98.
Overarching these considerations are the "weighty justifications, such as the reduction of litigation and related expenses, for the general policy favoring the settlement of litigation," Weinberger, supra, at 73. There is an "overriding public interest in favor of settlement," especially in class actions, where "a fair settlement need not satisfy every concern of the plaintiff class, but may fall anywhere within a broad range of upper and lower limits. '[T]he essence of settlement is compromise. . .a solution somewhere between the two extremes.'" Alliance to End Repression v. City of Chicago, supra, at 195, citing and quoting Armstrong v. Board of School Directors, 616 F.2d 305, 312-13, 315 (7th Cir. 1980).
The trial judge's evaluation of a proposed settlement must be an informed one. In Protective Committee for Independent Stockholders of TMT Ferry, Inc. v. Anderson, supra, it was said that the judge must "apprise himself of all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated." 390 U.S. at 424. To that pronouncement we add Judge Friendly's caveat in Weinberger, supra : "However, 'all' cannot really mean 'all.' The Supreme Court could not have intended that, in order to avoid a trial, the judge must in effect conduct one." 698 F.2d at 74 (citing Second Circuit cases). The Second Circuit's requirements, declared in Weinberger, are that "the compromise be the result of armslength negotiations and that plaintiffs' counsel have possessed the experience and ability, and have engaged in the discovery, necessary to effective representation of the class's interests," ibid.
"Discovery" within the context of class action settlement need not be formal discovery under the Federal Rules of Civil Procedure. To adequately represent the class, counsel must demonstrate access to sufficient "information regarding the facts of their case"; where that information exists, "we are not compelled to hold that formal discovery was a necessary ticket to the bargaining table." In re Corrugated Container Anti-Trust Litigation, 643 F.2d 195, 211 (5th Cir. 1981) (emphasis added) (Court approved settlement even though "very little formal discovery was conducted and . . . there is no voluminous record in the case," ibid., citing and quoting Cotton v. Hinton, 559 F.2d 1326, 1332 (5th Cir. 1977) (emphasis in original). This is common sense. Knowledge is more important than its source. To hold otherwise would exalt form over substance.
The courts reserve special scrutiny for cases where settlement negotiations precede class certification, with notice of certification simultaneous with that of settlement. Such a case is Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982), an employment discrimination class action where the complaint was filed on December 24, 1980, defendant filed a general denial on February 4, 1981, and on February 10 plaintiffs' counsel presented the trial court with a proposed class certification and settlement decree. Judge Conner rejected the settlement on the basis of that virtually non-existent record. The Second Circuit affirmed, expressing a concern reiterated in Weinberger, supra, at 73 that such a procedure gives rise to "possibilities of collusion or of undue pressure by the defendants on would-be class representatives." Weinberger makes it clear that, despite these concerns, there is no per se rule prohibiting approval of such settlements; but the Second Circuit demands "a clearer showing of a settlement's fairness, reasonableness and adequacy and the propriety of negotiations leading to it in such cases than where a class has been certified and class representatives have been recognized at an earlier date." Ibid.
Another principle is that the Court cannot modify the fundamental terms of a settlement proposal; as a general rule, it can only accept or reject the proposal as presented to it. Memorandum Opinion of December 16, 1981 at slip op. 3 and cases cited: see also Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 195.
A final and most important criterion is the state of existing law. In the case at bar, the complaint paints a picture of secretive, unrestrained unconstitutional activity on the part of the NYPD. The proposed settlement and guidelines, as we have seen, generally affirm constitutional rights and privileges; place specific limits and restraints on intelligence gathering activities; require detailed documentation subject to public view; establish a reviewing authority with a civilian member; and place these procedures within the frame-work of this Court's injunctive order, with the concomitant threat of contempt for non-compliance.
Prima facie, such a settlement appears to achieve something of value for the class. But objectors say it does not. On the contrary: they contend that if the settlement received judicial sanction, it will make the situation worse, not better. The argument is summarized in objectors' main brief at 53: "This proposed settlement and guidelines are totally inconsistent with First Amendment principles; rather than securing protection of First Amendment rights, the guidelines legitimize conduct which is an anathema to the First Amendment."
Objectors raise a vital point. Judge Getzendanner's meticulous opinion in Alliance to End Repression v. City of Chicago, supra, properly observes at 91 F.R.D. 204: "A fair settlement may not initiate or authorize any illegal conduct." But she then qualifies that general observation:
"However, the Court must not decide unsettled legal questions. Any illegality or unconstitutionality must appear 'as a legal certainty on the face of the agreement.' Further, the conduct must be illegal 'as a general rule,' according to the state of the law at the time the settlement is presented to the District Court for approval. Armstrong, 616 F.2d at 319-322."
The rule is the same in the Second Circuit. Robertson v. National Basketball Association, 556 F.2d 682 (2d Cir. 1977), and see discussion under Point VI, infra.
Just as the illegality or unconstitutionality of settlement-sanctioned conduct depends on the state of the law at the time of settlement, so does measurement of the settlement's achievements against the Court's equity power; it is the other side of the coin. One must determine by present law what police conduct is illegal, and what limitations exist on an equity court's power to direct police conduct. These are the only realistic criteria in evaluating this settlement. It is beside the point for objectors to posit constitutional restraints on police conduct as they would prefer them to be, and then criticize the settlement because it falls short of a state of law they devoutly desire but have not yet achieved.
Evaluation of the proposed settlement within the context of present law is the substantive issue in this case. But before addressing that issue, I must consider objectors' procedural contention that a sufficient factual background has not been developed through pre-trial discovery.
The Factual Basis for the Settlement
Objectors, relying primarily upon Plummer v. Chemical Bank, supra, contend that the facts of the case have not been sufficiently developed. That perceived insufficiency is said to reveal the inadequacy of class representation, and to deprive the Court of a proper basis for evaluating the settlement.
Plummer is inapposite. That case generated absolutely no record by which plaintiffs' claims of employment discrimination could be tested. The defendant bank's only declaration was an answer denying all wrongdoing. No other sources of information existed to shed light upon defendant's possible illegalities. The case at bar stands in quite a different posture.
It is true that the present defendants' first pleading was a general denial. But their motion to dismiss the complaint, denied by Judge Weinfeld, generated a considerable record, including a lengthy affidavit by then Police Commissioner Patrick V. Murphy. Commissioner Murphy traced the origin of the SSD (predecessor unit of the PSS) back to an "Italian Squad" formed in 1904 to curtail the illegal activites of a group of Italian immigrants called the "Black Hand Society." Murphy's affidavit acknowledged the following facts:
(1) Political unrest in the 1960's, including protests over the Indo-China war, prompted an increase of SSD investigations.
(2) These investigations included more undercover and other surveillance of "groups that because of their conduct or rhetoric may pose a threat to life, property, or governmental administration"; of "malcontents"; and of "groups or individuals whose purpose is the disruption of governmental activities for the peace and harmony of the community."
(3) The SSD gathered intelligence by means of infiltrations and informers, and telephone wiretapping, electronic eavesdropping, surreptitious recording of conversations, covert photography of individuals attending demonstrations, and recording speeches at demonstrations. This intelligence gathering was not limited to investigations of crime, but related to any activity likely to result in "a serious police problem."
(4) SSD tactics had included the issuance of false working press credentials to its officers.
(5) The SSD routinely furnished information about individuals signing petitions or attending meetings to the Committee on Character and Fitness of the New York State Supreme Court-Appellate Division.
In short, class counsel are correct in saying that "Commissioner Murphy conceded that the Police Department was engaged in the vast bulk of activities described in the complaint, including surreptitious surveillance and undercover infiltration of the political activities of individuals and groups."
The fact that the Police Commissioner coupled these concessions with disclaimers of illegality does not diminish the insights they gave into NYPD activity. They raise--if one may use the phrase--unmistakenable red flag of potential, if not actual, constitutional violations. And the Murphy affidavit distinguishes this case from Plummer, where Chemical Bank did not say what it was doing, and Judge Conner had no way of finding out.
Defendants' motion to dismiss the complaint was also supported by affidavits of Alan F. London, Esq., then counsel, and John L. Keenan, the NYPD's Chief of Inspectional Services and overall SSD commander. Comparable revelations appear in these, including admissions of activities involving certain plaintiffs specifically alleged in the complaint.
Class counsel also obtained through discovery a set of guidelines unilaterally promulgated by Commissioner Murphy in 1973, during the pendency of this action.
These guidelines, while stating in general and precatory terms that constitutional rights are important, do not contain the specific limitations, reporting requirements, and review procedures contemplated by the proposed settlement.
To the extent that the 1973 guidelines are anything other than the NYPD's self-serving declaration with an eye toward pending litigation, they are a source of information revelatory of broader intelligence gathering practices than the settlement's guidelines would tolerate.
The 1973 SSD guidelines were unearthed by interrogatories, a species of "formal" discovery. Contrary to the impression at times conveyed by the objectors, class counsel did not eschew formal discovery entirely. In 1973 and 1974 they deposed the commanding officer of the SSD and his principal subordinates, and developed further information by series of interrogatories resulting in some document production. Objectors dismiss this discovery as being "directed towards one issue and one issue only, facts bearing upon the appropriateness of the proposed class and whether or nor there should be a class certification."
It is true that discovery at that time addressed class certification, under the discovery order of Judge Stewart, who then had the case in charge. But procedural bulkheads are not watertight. A fact once let loose, for whatever procedural purpose, is free to run about the world, telling its tale to whoever will listen for whatever purpose. And this discovery, while directed toward the class certification which ultimately issued, inevitably overlapped with proof on the merits of the claims. That is the exception, not the rule, in class action litigation. It is easier for a trial judge to say in principle that discovery will be concerned only with "certification" and not with "the merits" than it is to enforce the distinction in practice. The fact is that formal discovery in this case developed significant information concerning the scope and nature of SSD activities, from which reasonable inferences could be drawn concerning the strength of plaintiffs' claims.
Class counsel also had available to them relevations arising from the celebrated case of People v. Collier, 85 Misc. 2d 529, 376 N.Y.S.2d 954 (N.Y.Cty. 1975). The record in that litigation revealed that in the 1970's, even in derogation of the limited internal guidelines promulgated in 1973, the SSD "engaged in long-term undercover operations, targeted against community activists, with no factual predicate for any belief that criminal activity was afloat," with the result, inter alia, that many individuals "became the subjects of Intelligence Division files simply because of their attendance at and participation in political activities."
The activities of the SSD and its predecessor agencies during the 1960's and early 1970's were the subject of three studies which class counsel considered. These were The Operations of a Police Intelligence Unit, dated February 1968, a CUNY master's thesis authored by Anthony v. Bouza, a former NYPD official assigned for eight years to the Bureau of Special Services, SSD's predecessor unit; and two books prompted by the trial and acquittal of the "Black Panther 21" in May 1971: Peter L. Zimroth, Perversions of Justice: The Prosecution and Acquittal of the Panther 21 (Viking 1974),
and Paul G. Chevigny, Cops and Rebels (Pantheon, 1972).
The decades of the sixties and seventies were periods of heightened American public awareness of political unrest and law enforcement response. Thus only six years separate the Report of the National Advisory Commission on Civil Disorders 269 (1968) (The "Kerner Report"), which advocated police intelligence units using undercovers and informers "to gather . . . and disseminate information on potential as well as actual civil disorders," from the Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S.Rep. No. 755, 94th Cong., 2d Sess. (1976) (the "Church Committee Report"), which described First Amendment abuses of federal agents, charges which were then levelled against a number of local police forces.
In the light of all this source material, specific and more generalized, it is disingenuous for objectors to say (main brief at 3-4) that "the Court is called upon to pass upon the propriety of a settlement in a total vacuum" because the record consists of "merely a complaint alleging police abuse" and "an answer denying every one of the allegations of the complaint . . . ." That may accurately describe the record in Plummer v. Chemical Bank, supra. It is not a fair or accurate description of the record in this case.
Objectors state correctly that more extensive formal discovery took place in two comparable cases which resulted in court-approved settlements. These are the class actions against the Chicago police
and the Los Angeles police.
The distinction is significant only if there is a set minimum requirement of "formal" discovery before a settlement can be approved. But that is not the law, as noted under Point III, supra. What counts is knowledge of the case, not the particular source of that knowledge.
Implicit in objectors' argument is the proposition that discovery should have proceeded to the point where plaintiffs' claims were fully established by formal proof. Thus objectors perceive a "compelling need for discovery now as to the grievances that caused this action to be brought and could be continuing with equal force to the present time." Absent such discovery, the argument proceeds, the proposed settlement would guarantee "that the class would remain uninformed and the charged misdeeds of the defendants would remain covered up and secret."
Similarly, it is argued by counsel for an individual objector, Richard Dhoruba Moore, that "[h]aving been denied discovery, members of the plaintiff class will never know the extent to which their owns arrests by the NYPD were part of an illegal and/or unconstitutional campaign to disrupt their political activities."
The thrust of these arguments is that formal discovery [discovery] should be carried forward to the point where defendants are obliged to admit their wrongdoings, or be subject to a successful motion for summary judgment.
I reject the argument because it is inconsistent with the salutary purposes of settlement. For precisely that reason, Judge Getzendanner rejected comparable objections in Alliance to End Repression v. City of Chicago, supra, at 91 F.R.D. 201:
"Some objectors argue that both settlement agreements are fatally defective because they lack more extensive admissions or finding of wrongdoing by the Court. As the Court stated at the March 13 hearing:
'Well, certainly the whole purpose of the settlement is to avoid adjudication with respect to the activity which is the basis of the complaint. I think the parties would be stunned if in submitting a class action settlement to the Court, the Court started to decide the issues. That's why people enter into settlements and I am not going to interfere in the settlement process.'"
The same judge expressed the same views, with which I agree, at 561 F. Supp. 554:
"Some objectors argue that both the City of Chicago and the Department of Defense Settlements make no findings and contain no admissions of wrongdoing by the City of Chicago, the Department of Defense, or their agents. But the essential purpose of a settlement is to avoid adjudication of the lawfulness or propriety of conduct which is the subject of allegations of the complaint. It would defeat an important purpose of settlement, and therefore render settlements less attractive to the parties, if the settlement agreement were required to include admissions of wrongdoing by the defendants, or if the Court itself made such findings in connection with a proposed settlement. Such a procedure would constitute an unwarranted interference by the Court in the efforts of the parties to resolve their differences short of adjudication of the allegations of the complaint."
One senses, in the objections at bar, a passionate desire by the objectors that whatever illegalities the NYPD perpetrated in earlier years be exposed to the light of day by a full plenary record. It is easy enough to understand that desire human terms. But it is absolutely inconsistent with the salutary purpose of class action settlements.
In the case at bar, the information, both specific and general, summarized above placed class counsel in a position to make intelligent judgments concerning (a) the constitutional abuses of which a large metropolitan policy force was capable; (b) the fact of such abuses by the NYPD; and (c) the prospect of obtaining injunctive relief, in the light of presently existing law: a factor to which I will shortly come. That information guided class counsel in recommending the proposed settlement; it is equally available to the ...