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HANDSCHU v. SPECIAL SERVICES DIVISION

United States District Court, Southern District of New York


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 study?

Do you think anyone in Ithaca uses drugs?

Do you know anyone in Ithaca who uses drugs?

Do you know when the next peace rally will be?

Who did you come to the demonstration with?

How did you get there?

Where did you park your car?

What subway stop did you get on and off at?

What group are you affiliated with?

Why are you here at the demonstration?

Have you been to any protests in the past? Where?

When?

Are you planning on going to any protests in the future?
At which website did you find out about the demonstration?
What will you be doing and where are you going when you are released?
Do you do any kind of political work?

Where are you employed?

Do you do other kinds of anti-war work?

Did you meet with a group?

Do you know any of the groups involved in the rally?
What are your political affiliations?

Are you staying with anyone?

What is your opinion on the war in Iraq?

Don't you think it was necessary for us to get involved in World War II?
Where have you traveled lately?

Have you ever traveled to the Middle East?

Have you ever been to Africa?

One affiant says she was told "that I would not be released until I spoke with a detective. I was held for 15 hours before receiving a desk appearance ticket."*fn4

While I accept Inspector Cutter's averment that INTEL officers conducting these [ Page 6]

interviews told him that "they asked only the questions contained in the debriefing form," it seems clear that the interrogations conducted by at least some officers went far beyond the form. The affidavits of the twelve arrestees reveal a pattern in the inquiries, and it is fanciful to suggest that they are all inventing questions they were never asked.

Inspector Cutter states further that "[w]hen provided, responsive information was recorded on the debriefing form*fn5 and entered into a data base. The forms were then destroyed." Cutter Decl. at ¶ 17.

According to accounts appearing in The New York Times issues of April 10 and 11, 2003, the New York Civil Liberties Union wrote to NYPD Commissioner Raymond W. Kelly to complain about the "debriefing" practices. In an article in the April 10 issue at page Dl, an NYPD spokesman was quoted as saying that "Police Commissioner Raymond W. Kelly and his deputy commissioner for intelligence, David Cohen, a former top Central Intelligence Agency official, did not know the debriefing form was in use"; the article added that "after the practice came to light, the Police Department said it would destroy the database, created with a debriefing form, and largely abandon the initiative, which civil libertarians and constitutional law experts said was deeply troubling." An article in the Times April 11 issue at page D5 reported that at a news conference Commissioner Kelly said the practice "was neither illegal nor unconstitutional," being instead a "good faith effort to develop information that would help police officials [ Page 7]

determine how to deploy officers at future demonstrations." Kelly confirmed, however, that neither he nor deputy commissioner Cohen "knew about the practice," and added that "he had ordered that no such forms be created in the future without the approval of his senior intelligence aide, the deputy commissioner of intelligence." For his part, Inspector Cutter says in his declaration at ¶¶ 21 and 22 that "[o]n or about April 8, 2003 my superiors directed that the use of the debriefing form be discontinued and the information recorded in the database deleted," directions which Cutter says he obeyed, although adding that "[a]nalysis of the information provided by the arrested demonstrators of a statistical nature and in anonymous form bearing no identification to any person, was retained by INTEL to be utilized in planning the policing of future demonstrations."

In these circumstances, Class Counsel move to amend the April 8, 2003 Order and Judgment which modified the consent decree and implemented the Modified Handschu Guidelines, so as to incorporate those Guidelines into the Order and Judgment. The Court has received briefs and heard oral argument. Class Counsel make the dramatic charge that "[t]he intelligence division activities that have recently come to light make it clear that the NYPD does want to resurrect the Red Squad. These activities show that one of the purposes behind the effort to eviscerate the consent decree was to free the NYPD to collect information about political activity as it did in the past." Eisenstein declaration at ¶ 16 (internal quotation marks omitted). Corporation Counsel contend that the "debriefing" practice violated neither the Constitution nor the Handschu Guidelines, original or modified;*fn6 that Class Counsel have shown no entitlement to [ Page 8]

relief; and that the relief requested would only visit upon the NYPD a counterproductive and unjustified form of punishment.

II. DISCUSSION

In the February Opinion, I had occasion to observe:

In this American democracy, government is obligated by its compact with the citizens who consent to be governed to preserve for each the freedoms and rights conferred by the Constitution, while at the same time ensuring the safety of all. Tensions between these responsibilities of government, executive and legislative, inevitably arise, as they have in this case.
2003 WL 302258, at *20. The events giving rise to the present motion furnish another example of those tensions, and once again "it falls to the judicial branch to resolve them." Id.

The NYPD's successful motion to modify the Handschu Guidelines depended for its factual basis upon the sworn declarations of the officer in charge of intelligence operations, Deputy Commissioner Cohen. The Department's resistance to Class Counsel's present motion depends upon the declaration of a lower ranking officer, Inspector Cutter. Neither Commissioner Kelly nor Deputy Commissioner Cohen have submitted declarations. Knowledge of Commissioner Kelly's views must be gleaned from the newspapers.

Several aspects of Inspector Cutter's declaration are problematic. The first, and most glaring, problem is that officer's description of the questionnaire INTEL officers used while interrogating arrested demonstrators as a "Demonstration Debriefing Form" (emphasis added). To put it charitably, "debriefing" is a misnomer. That noun and its root verb have well recognized definitions in current English speech. "Debrief is defined as "to interrogate (as a pilot returning from a mission or a government official returning from abroad) in order to obtain [ Page 9]

information or intelligence." Webster's Third New International Dictionary (unabridged) (1993) at page 582. "Debriefing" is defined as a "report of a mission or task." WorldNet 1.6, copyrighted in 1997 by Princeton University. One need not share the linguistic expertise of a William Safire to perceive that these arrestees were not being "debriefed" as that word is currently used. The demonstrators taken into custody were not pilots returned from a mission or government officials returned from abroad, giving reports to their comrades in arms or bureaucratic superiors in the ordinary course of public service. The arrestees did not want to be in police stations, and interrogation by INTEL officers was not part of their professional routines. But the phrase for what actually occurred comes readily to mind. These individuals, having been arrested, were in custody while being interrogated by NYPD officers. It necessarily follows that they were subjected to a "custodial interrogation," a procedure with potential constitutional complications familiar to law enforcement officers, prosecutors, and defense counsel, and presumably encountered by Inspector Cutter while he was a student at the Police Academy, if not before. I am not prepared to say that Inspector Cutter's use of the phrase "demonstration debriefing form" was deliberately disingenuous, but it was certainly an odd choice of words.

Moreover, I noted in Part I Inspector Cutter's assertion that the arrested demonstrators "voluntarily made a personal choice about whether to answer questions asked by INTEL officers." Inspector Cutter cannot have personal knowledge on that point; there is no indication that so senior an officer personally participated in these post-arrest interrogations. So he must be relying upon what junior INTEL officers reported to him. But those reports cannot be accepted at face value. As demonstrated in Part I, there is ample reason to believe that at least some INTEL officers asked questions going far afield from the relatively few in the form, despite [ Page 10]

reports to Inspector Cutter that the officers "asked only the questions contained in the debriefing form." In addition, one arrested demonstrator swore that she was detained in custody for 15 hours so that she could be interviewed by a detective, an extended detention at odds with voluntary answers willingly given. And quite apart from any particular length of detention, the fact that the demonstrators were under arrest at the time is itself a sufficient ground to question the voluntary nature of their answers. During custodial interrogation there is an "inherently compelling pressure[] which work[s] to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," Pennsylvania v. Muniz, 496 U.S. 582, 596 n. 10 (1990).

At oral argument Corporation Counsel characterized Class Counsel's motion as one "to punish the police department for what plaintiffs' class believes was unconstitutional with respect to these two [sic] demonstrations," a belief Corporation Counsel argues Class Counsel could not sustain because, given the demonstrators' illegal conduct for which they were arrested, the questions put to them were for a "law enforcement purpose," Transcript of Argument ("Tr.") at 60-61.

While this contention has a surface appeal, a court's orders, judgments and decrees can serve not only to punish conduct, but also to discipline and to deter. These recent events reveal an NYPD in some need of discipline. On the NYPD's own account, neither Commissioner Kelly nor Deputy Commissioner Cohen knew about Inspector Cutter's "debriefing" form; and Inspector Cutter did not know that (as I have found) INTEL officers were exceeding that form's [ Page 11]

inquisitorial boundaries.*fn7 Commissioner Kelly told the press that he saw nothing wrong with the debriefing procedure, while at the same time ordering Inspector Cutter to stop doing it and never do it again without Deputy Commissioner Cohen's permission. This has about it the aura of discipline; and one would not be surprised to learn that Inspector Cutter had some words for the INTEL officers whose interrogations roamed far off the reservation (although there is no evidence of this, and the possibility is not a factor in the view I take of the case). Moreover, if these inquisitorial practices were problematic, a modified judgment from this Court might have a salutary deterrent effect.

While the Corporation Counsel poses the question as one of a constitutional violation vel non, and constitutional issues were touched upon in the briefs and arguments, I do not think I am required to find that the "debriefing" procedures offended the Constitution to grant the plaintiff class relief on the present motion. On the contrary, there are significant reasons why I should not reach the constitutional question. The Constitution itself, as binding upon this Court as it is upon the NYPD, limits the judicial power of the United States to presently existing "cases" and "controversies," Article III, Section 2; but Class Counsel are not presently asking the Court to declare this NYPD procedure unconstitutional, having preferred initially to place the issue before the Handschu Authority, which is still considering its response. Nor has any individual arrested [ Page 12]

and interrogated demonstrator asked this Court for a constitutional ruling.*fn8 Additionally, lower federal courts are routinely instructed to eschew constitutional rulings if the circumstances of the case allow.

I conclude that the plaintiff class is entitled to a strengthening of the Judgment because the two-level display of operational ignorance on the part of the NYPD's highest officials with respect to an investigatory technique resonant with constitutional overtones, as revealed by this record, requires that enhancement. While I accept Commissioner Kelly's statement to the press that he and Cohen, the NYPD's Deputy Commissioner of Intelligence, did not know what Inspector Cutter was doing in the name of intelligence, I think it clear that in such a sensitive area and at such a sensitive time (including the pendency of the NYPD's motion to amend the Handschu consent decree) the two commissioners should have known. It is entirely appropriate to hold senior police officials to that common law tort standard of responsibility; in this Court's first Handschu opinion, Judge Weinfeld held that the plaintiff class "would be entitled to injunctive relief if plaintiffs proved "a pattern of unconstitutional conduct, of which the defendants should have been aware," Handschu v. Special Services Division, 349 F. Supp. 766, 771 (S.D.N.Y. 1972) (emphasis added).*fn9 By the same token, accepting the Corporation Counsel's argument that Inspector Cutter did not know what questions his INTEL officers were asking, he should have known. [ Page 13]

I do not accept Class Counsel's seeming accusation that the NYPD, while asking this Court to modify the Handschu consent decree and guidelines, was at the same time scheming in bad faith to resurrect the odious Red Squad. The NYPD raised serious issues of public security with which this Court's February Opinion attempted to deal. At that time I regarded the Order and Judgment implementing that Opinion as striking a proper balance between the legitimate demands of public security and individual freedoms. Given the NYPD intelligence-gathering techniques being employed at that same time, as revealed by the present record, I no longer hold that confidence; and that is so, notwithstanding Commissioner Kelly's public assurance (which I accept) that for the present that particular technique is not being utilized.

Having concluded that the plaintiff class is entitled in principle to a further revision of the Order and Judgment, it remains to consider how this should be accomplished in practice. Class Counsel, in a post-argument letter dated June 2, 2003, offer suggestions which seem to me balanced and fair. Class Counsel propose to leave unchanged the "Reservations" paragraph with which the Modified Handschu Guidelines appearing in the NYPD Patrol Guide concludes, but to include in a revised Order and Judgment language to the effect that (to quote counsel's letter) "the last paragraph of the Guidelines shall be read in light of the fact that the Guidelines are incorporated in the Consent Decree, and procedures under the Consent Decree may pursued in case of an alleged violation of the Decree."

This approach gives the plaintiff class an increased protection warranted by recent events without unfairly burdening the NYPD. Retention of the Guidelines' "Reservations" paragraph continues to insulate the NYPD from individual legal actions based upon perceived failures to follow the Guidelines which do not rise to a constitutional level. Indeed, as with the present [ Page 14]

order and judgment, no liability on the part of the NYPD under a further revised Order and Judgment and Guidelines will attach unless a constitutional violation does occur; the effect of the revision is to make a violation of the Constitution a contempt of the Court's order as well. That consequence should not unduly trouble the NYPD, which I will assume is not engaged in thinking up ways to violate the Constitution. Moreover, the history of this class action, going back to the entry of the first consent decree in 1985, reflects the parties' understanding that Class Counsel, not individual plaintiffs, would bring any motion to hold the NYPD in contempt.*fn10

At oral argument Corporation Counsel expressed a concern that "if all these guidelines are incorporated in the decree, although plaintiffs say they wouldn't be running into court for every little transgression, there is really no protection for the police department with respect to that," with the added deleterious effect that "the Court would then become inextricably intertwined in the day-to-day operations and decision making on the intelligence division." Tr. 64. I think these concerns are exaggerated. Class Counsel have throughout this protracted litigation tempered energetic advocacy with restraint: a behavioral balance that does not come naturally to lawyers. Moreover, the Statement of Policy with which the Modified Guidelines [ Page 15]

begin, quoted in the margin,*fn11 makes it clear that any failure of the NYPD to comply with the Guidelines must rise to a constitutional level in order to sustain a motion by Class Counsel to hold the NYPD in contempt.

In summary: while I do not decide, one way or the other, whether the "debriefing" procedure described supra violated the constitutional rights of any of the arrested demonstrators, the circumstances surrounding that procedure entitle the plaintiff class, operating through Class Counsel, to an enhanced level of judicial review.*fn12

For the foregoing reasons, a revised Order and Judgment consistent with this Opinion will be entered.


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