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HANDSCHU v. SPECIAL SERVICES DIVISION

August 6, 2003

BARBARA HANDSCHU, RALPH DIGIA, ALEX MCKEIVER, SHABA OM, CURTIS M. POWELL, ABBIE HOFFMAN, MARK A. SEGAL, MICHAEL ZUMOFF, KENNETH THOMAS, ROBERT RUSCH, ANETTE T. RUBENSTEIN, MICHEY SHERIDAN, JOE SUCKER, STEVEN FISCHLER, HOWARD BLATT AND 88864 ELLIE BENZONE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS -AGAINST- SPECIAL SERVICES DIVISION, A/K/A BUREAU OF SPECIAL SERVICES, WILLIAM H.T. SMITH, ARTHUR GRUBERT, MICHAEL WILLIS, WILLIAM KNAPP, PATRICK MURPHY, POLICE DEPARTMENT OF THE CITY OF NEW YORK, JOHN
v.
LINDSAY AND VARIOUS UNKNOWN EMPLOYEES OF THE POLICE DEPARTMENT ACTING AS UNDER-COVER OPERATORS AND INFORMERS, DEFENDANTS



The opinion of the court was delivered by: Charles Haight, District Judge

MEMORANDUM OPINION

In this class action involving certain conduct on the part of the New York City Police Department ("NYPD"), represented by the office of the Corporation Counsel, the attorneys for the certified class ("Class Counsel") move for reconsideration of the Court's Revised Order and [ Page 2]

Judgment entered on dated April 8, 2003 (the "Order and Judgment"), and to alter or amend it.*fn1 The NYPD resists the motion.

I. BACKGROUND

The history of this action prior to the entry of the Order and Judgment on April 8, 2003 is stated in detail in the Court's opinion dated February 13, 2003, No. 71 Civ. 2203, 2003 WL 302258 (S.D.N.Y. Feb. 13, 2003) ("the February Opinion" or "the Opinion"). Familiarity with that opinion is assumed. Its detailed history need not be repeated.

The Order and Judgment implemented the February Opinion's ruling which granted the NYPD's motion to modify the Handschu Guidelines, on condition that the NYPD include in its Patrol Guide an adapted version of the FBI Guidelines approved by the Court after consideration of comments by Class Counsel. The NYPD captioned the adapted Guidelines as "Guidelines for Investigations Involving Political Activity" (hereinafter "NYPD Guidelines"). While the Order and Judgment's third decretal paragraph required that the NYPD Guidelines "remain in the NYPD Patrol Guide unless otherwise directed by the Court," it did not specifically incorporate the NYPD Guidelines as an integral part of the Order and Judgment. In that regard, Class Counsel contended then and contend now, the Order and Judgment differed from the order and judgment approving the original Handschu Guidelines, see605 F. Supp. 1384 (S.D.N.Y. 1985), aff'd., 787 F.2d 828 (2d Cir. 1986). That omission, when coupled with a "reservations" provision in the NYPD Guidelines that the Guidelines do not "create any rights, substantive or [ Page 3]

procedural, enforceable by any party in any matter, civil or criminal,"*fn2 discomfited Class Counsel Class because, in their view, the NYPD was thereby immunized from being held in contempt of a Court order if it subsequently violated the Guidelines.

Notwithstanding these professed misgivings on the part of Class Counsel, the litigants greeted the result achieved by the Judgment entered on April 8, 2003 with unanimous acclaim. Corporation Counsel and Class Counsel issued separate statements to the media, expressing a lively satisfaction with the outcome (although the stated reasons for their approval were somewhat different). Class Counsel announced that they would not appeal from the Order and Judgment. The NYPD had no issue to raise on appeal.

However, beneath these deceptively calm seas, unknown at the time by counsel and the Court, troublesome tides were running which led to the present motion. The circumstances which transformed accord into discord are these.

The United States' impending invasion of Iraq generated considerable public protest in the New York City area. Anti-war demonstrations were held on the streets of Manhattan on February 15, March 22, and March 27, 2003. The NYPD was responsible for maintaining order during these rallies, including keeping the demonstrators within areas defined by the NYPD and approved by this Court and the Second Circuit. During the February 15 rally, the police arrested 274 persons "for conduct ranging from blocking traffic to assault on police officers." Declaration of Inspector John W. Cutter, Commanding Officer of the Criminal Intelligence Section of the Intelligence Division ("INTEL") of the NYPD dated May 15, 2003 ("Cutter [ Page 4]

Decl.") at ¶ 15. Additional arrests for similar conduct were made during the March 22 and March 27 rallies.

As the result of public statements by protest organizers prior to the February 15 rally, as well as "other specific information," the NYPD had reason to believe that "particular groups intended to engage in unlawful conduct at the February 15th event." Cutter Decl. at ¶ 14. In preparation for that conduct and the arrests that would surely follow, Inspector Cutter prepared what was captioned a "Demonstration Debriefing Form" for INTEL officers to use in questioning arrested persons while in custody. The section titled "Subject Information" contained the usual "pedigree" questions, but also had lines to fill in captioned "Organization Name," "Organization Position," "School Name," and "Prior Demonstration History." Inspector Cutter says that the "question about the school attended by the arrestee" was designed "to help confirm information about certain educational institutions used by some groups as a base for planning disruptive activities." Id. at ¶ 16. He says further that "[i]ndividuals voluntarily made a personal choice about whether to answer questions asked by INTEL officers," and that "[b]ased on my interviews with INTEL officers who conducted interviews of individuals arrested at these events, they asked only the questions contained in the debriefing form." Id. at ¶¶ 17, 20.

A quite different picture is painted by 12 affidavits Class Counsel submit, sworn to by individuals who were arrested and questioned in connection with one or more of the three events.*fn3 These individuals say that, following their arrests, they were questioned by plainclothes NYPD officers. The questions included the following: [ Page 5]

Why did you come to New York today?

How do you feel about the war?

Do you hate George W. Bush?

Do you think anything would be different if Al Gore were elected?
Who did you come with?

Were you one of the sit-down arrests?

Do you go to school?

Where?

What do you ...


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