The opinion of the court was delivered by: Haight, Senior United States District Judge
MEMORANDUM OPINION AND ORDER
To paraphrase Longfellow, this is the class action eternal.*fn1 There will be a Handschu class action and a judge of this Court in charge of it for it as long as New York City stands, the New York Police Department ("NYPD") endeavors to balance protection of society with preservation of individual liberties, and the decision on how that balance should be struck rests with the judicial branch of government. Judge Weinfeld was present at the creation of the case 35 years ago. At the this moment, which has lasted for 30 years -- eternity is measured in moments -- I am responsible for the case. Other judges of this Court will succeed me. Disputes between class counsel and the NYPD have arisen in the past. More will probably arise in the future. A dispute is before the Court now.
The present dispute is generated by the NPYD's recently implemented practice of videotaping public gatherings and preserving the videotapes. That practice is described in and carried out pursuant to NPYD Interim Order 47 ("Order 47" or "the Order"). Class counsel now move to enjoin the enforcement of Order 47, on the grounds that it violates guidelines incorporated in a prior order and judgment of this Court, as well as the First Amendment to the United States Constitution. The Corporation Counsel of the City of New York ("Corporation Counsel"), representing the NPYD, contends that the NYPD's conduct is entirely proper and the class is entitled to no relief.
This particular dispute must be considered in the greater context of the procedural history of the case since its inception.
This action was commenced in 1971. The plaintiffs, a group of citizens, complained that those in charge of the NPYD at the time were conducting surveillance and intelligence-gathering activities which violated the plaintiffs' rights under the United States Constitution. The case was assigned to the late District Judge Edward Weinfeld. The NPYD moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. Judge Weinfeld denied that motion. Handschu v. Special Servs. Div., 349 F. Supp. 766 (S.D.N.Y. 1972) ("Handschu I"). He reasoned that it did not appear "to a certainty that the plaintiffs would be entitled to no relief under any state of facts which could be proved in support of their claim." Id. at 771. By means of that double negative, Judge Weinfeld held that the Handschu plaintiffs' complaint sufficiently alleged a violation by the NPYD of their constitutional rights to withstand dismissal as a matter of law. In that circumstance, two resolutions were conceptually possible: the plaintiffs would attempt to prove their constitutional claims in support of a dispositive motion or at trial; or the parties would settle the case.
The parties chose the latter course. Judicial responsibility for the case having passed from Judge Weinfeld to me, I certified the plaintiff class pursuant to Fed. R. Civ. P. 23(a)(b)(1)(A) and 23(b)(2) in an unreported opinion and order dated May 24, 1979. Thereafter class counsel and the Corporation Counsel negotiated and proposed a settlement of the class action whose terms I approved. 605 F. Supp. 1384 (S.D.N.Y. 1985) ("Handschu II"). The Second Circuit affirmed. 787 F.2d 828 (2d Cir. 1986) ("Handschu III").
The heart of the settlement lay in the adoption by the NPYD of guidelines governing future police conduct in the relevant areas. Their full text appears in Handschu II, 605 F. Supp. at 1420-24. For clarity I will hereafter refer to them as "the Original Handschu Guidelines." The plaintiff class and the NPYD dwelt together under the Original Handschu Guidelines with a degree of amity and a lack of acrimony that, I am frank to confess, I had neither anticipated nor hoped for. But then the dreadful and tragic events of 9/11 occurred. The NPYD, viewing the circumstances in respect of intelligence gathering as having been materially changed, moved this Court for a modification of the Original Handschu Guidelines. The NYPD's core contention, expressed by Deputy Commissioner Cohen in ¶ 1 of his first affidavit in support of that motion, was that "the continued enforcement of the Guidelines is no longer consistent with the public interest because they limit the effective investigation of terrorism and prevent cooperation with federal and state law enforcement in the development of intelligence."
Class counsel did not contend that in principle no modification of the Original Handschu Guidelines should be considered; on the contrary, and to counsel's credit, they reached out to the Corporation Counsel's office to initiate a dialogue, but nothing came of the overture, and the NPYD made its motion. Class counsel opposed the motion as made, arguing that the modifications the NPYD suggested were too extreme, and expressing a particular concern that whatever modified Guidelines the Court approved should be specifically incorporated as a part of the Court's Order and Judgment.
I granted the NYPD's motion to modify the Handschu Guidelines. 273 F. Supp. 2d 327 (S.D.N.Y. 2003) ("Handschu IV"). That Opinion and its accompanying Order provided principally that the NPYD must adopt revised guidelines based upon Guidelines which the FBI had issued after 9/11. Thereafter the NPYD complied with the Court's direction, adopted the FBI Guidelines, and included them in the NYPD patrol guide. Those adopted and incorporated guidelines instruct all commanding officers of the NPYD about how they are to conduct investigations involving political activity. Hereafter I will refer to those guidelines, thus adopted and incorporated, as "the Patrol Guidelines." As further explicated in Part III, infra, the Patrol Guidelines, read together with surviving provisions of the Original Handschu Guidelines, comprise what I will refer to as "the Modified Handschu Guidelines."
Class counsel took the position that the Court's Order granting the NYPD's motion to modify the Original Handschu Guidelines should specifically incorporate the Modified Handschu Guidelines into the Order and Judgment, thereby making them a part of the Order and Judgment. I initially refused that request, but reversed my field when, during the course of protests in the streets of the City during February and March of 2003 concerning the Bush administration's imminent invasion of Iraq, senior NPYD officers misbehaved themselves by ordering that arrested protestors held in precinct station houses be interrogated in inappropriate ways before being released. Class counsel, having learned of this practice from complaints made by protesters or their attorneys, returned to this Court to request a modification of the modification. The Corporation Counsel asserted that neither Commissioner Kelly nor Deputy Commissioner Cohen had previously known of the interrogation techniques in question and now had put a stop to them, while professing their belief that the techniques were perfectly proper. I accepted Kelly's and Cohen's disclaimers of knowledge, but perceiving a lack of discipline on the part of the NPYD in this sensitive area, incorporated the Modified Guidelines into a Second Revised Order and Judgment. 288 F. Supp. 2d 411 (S.D.N.Y. 2003) ("Handschu V"). The Partrol Guidelines, which form a part of the Modified Handschu Guidelines thus incorporated, are printed in full at 288 F. Supp. 2d at 420-31.
It is against this background that on September 10, 2004, the NPYD by direction of Commissioner Kelly distributed Order 47 to all commands. The plaintiff class now moves to enjoin enforcement of Order 47 and the implementation by the NPYD of the procedures the Order directs. Before deciding this motion, I directed further submissions from the parties about a "Note" appearing on page 2 of Order 47 and quoted in Part II.B., infra. See 2006 WL 1716919 (S.D.N.Y. June 21, 2006) ("Handschu VI"). Those submissions having been filed, I now decide the motion by the plaintiff class.
II. THE CONTENTS OF ORDER 47
REVISION TO PATROL GUIDE 212-71, "GUIDELINES FOR THE USE OF PHOTOGRAPHIC/VIDEO EQUIPMENT BY OPERATIONAL PERSONNEL AT DEMONSTRATIONS"
The text of the Order begins with this introductory paragraph:
Recent modifications to the Handschu Consent Decree, along with advancements in and the availability of technology to aid in police operations, necessitates that procedures governing the use of video and photography by members of the service be updated.
Those procedures were "updated" by the promulgation of Order 47, a five-page single-spaced document organized under three main headings: "Purpose," "Scope," and "Procedure." The provisions most relevant to the present motion are quoted in this Part of the Opinion.
A. The Purpose of Order 47
That section of Order 47 which explains its "Purpose" reads in full:
To set forth the permissible operational objectives for which members of the service may use photographic/video equipment to record images in situations outside of ongoing criminal or internal investigations, standard evidence collection or arrest processing procedures; to establish procedures for the approval and use of such equipment; and to establish responsibility for the maintenance, review, storage, and disposition of such images.
That section of Order 47 which defines its "Scope" begins by stating:
This procedure establishes permissible operational objectives that authorize and apply generally to the use of video and photography, except in situations involving ongoing criminal or internal investigations, standard evidence collection, or arrest processing procedures. This procedure applies to the use of video and photography by members of the service to accurately record police operations and other public activity. Examples of such uses include preparing training materials and monitoring and/or assessing: emergency incidents, traffic control, crowd control (parades, demonstrations, etc.), counter-terrorism, public safety, crime, or disorder conditions, deployment of police resources, etc. . . .
Order, at 1. Expanding upon its core concept of a "permissible operational objective," the next paragraph of the "Scope" section of the Order provides in pertinent part:
The use of photographic or video equipment by operational personnel to accurately record police operations and other public activity is appropriate if a permissible operational objective exists. Permissible operational objectives include accurately documenting events, actions, conditions or statements made:
a. during special events, disorder events, arrests, public assemblages or any other critical incident in which such accurate documentation is deemed potentially beneficial or useful; or . . .
c. when a reasonable belief exists that unlawful activity, terrorist activity or arrest activity will occur. . . .
Order, at 2. The language in subparagraph (a) particularly troubles class counsel.
The section of the Order just quoted in part is followed by an italicized "Note" which reads in pertinent part:
Pursuant to Modified Handschu Guidelines, the investigation of political activity may only be initiated by and conducted under the supervision of the Intelligence Division. Therefore, members of the service not assigned to the Intelligence Division may not use video recording or photography for the purpose of investigating political activity, without the express written approval of the Deputy Commissioner, Intelligence.
C. The Procedures Created by Order 47
The section of the Order describing the procedures to be followed begins with this direction:
When ranking personnel of this Department contemplate the use of photographic or visual recording equipment for a permissible operational objective:
1. Submit a report, on Typed Letterhead, to Patrol Borough/Bureau Commander concerned, requesting the deployment of equipment and properly trained personnel.*fn2
2. Include the following information in the request:
a. Date, time and location of incident or event to be recorded, and
b. Identity of the individuals or groups involved (if known), and
c. Specific permissible operational objective(s) to be achieved.
Order, at 2-3 (emphasis omitted). The commander to whom the request is addressed has the discretion to approve or disapprove it. Id. ¶ 3.a.
Many of the detailed procedures that follow are not relevant to the plaintiff class's present motion. However, class counsel view with distinct alarm and disapproval the procedures which appear under the caption "UPON COMPLETION OF PHOTOGRAPHING/VIDEOTAPING." These procedures comprise a series of directions to commanding officers. I quote them in full:
7. Maintain all photographs/video recordings prepared in connection with this procedure for a minimum of one (1) year from the date the images were recorded.
8. Prepare and maintain a written summary describing the event and activities preserved in each recording, to assist in indexing and retrieval.
9. Facilitate review of the recorded materials by the ranking officer who initiated the request to determine whether they have value either as evidence of criminal activity or as documentation under a permissible operational objective.
a. If the materials contain evidence of criminal activity, they will be considered evidence, and handled accordingly.
b. If the materials are deemed valuable for other purposes, for example, litigation, training, after action reports, etc., they will be similarly retrieved in connection with that purpose.
c. After one (1) year, materials not meeting the criteria in (a.) or (b.) above may be destroyed. In determining whether materials have such value or may be destroyed (video recordings, discs, etc. may be reused), the Commanding Officer, TARU/Other Designated Unit*fn3 shall confer with the ranking officer who authorized or requested the taking of video/photographs.
III. THE MODIFIED HANDSCHU GUIDELINES
The Modified Handschu Guidelines are comprised of two elements: the modified guidelines initially proposed by the NPYD, printed as Appendix A to Handschu IV, 273 F. Supp. 2d at 349-51; and the NYPD's adoption of the FBI guidelines for inclusion in the patrol guide, printed as Appendix A to Handschu V, 288 F. Supp. 2d at 420-31 and captioned "Guidelines for Investigations Involving Political Activity" (these are what this Opinion refers to as "the Patrol Guidelines"). Handschu IV made it clear that without the inclusion of the Patrol Guidelines into in the NPYD patrol guide, the Court would reject the NYPD's motion to modify the Original Handschu Guidelines.*fn4
The Modified Handschu Guidelines, drafted by the NPYD and Corporation Counsel, restate and reaffirm two key definitions contained in the Original Guidelines. Section II(A) defined "political activity" as: "The exercise of a right of expression or association for the purpose of maintaining or changing governmental policies or social conditions." See Handschu IV, 273 F. Supp. 2d at 350. Section II(C) defined "investigation" as "a police activity undertaken to obtain information or evidence." Id. The modifications proposed by the NPYD left these definitions unchanged. Id. at 350. In consequence, the application of the ModifiedHandschu Guidelinesis limited to the NYPD's collection of information or evidence in situations where persons are expressing political or social views or associating for that purpose. This limitation has never changed.*fn5
The Patrol Guidelines undertake to strike the delicate, sensitive, and vital balance necessary to safeguard both public safety and private rights. That purpose is articulated in Section I of the Patrol Guidelines, "Statement of Policy," and Section II, "General Principles." Section I provides in full:
It is the policy pf the New York City Police Department that investigations involving political activity conform to the guarantees of the Constitution, that care be exercised in the conduct of those investigations so as to protect constitutional rights, and that matters investigated be confined to those supported by a legitimate law enforcement purpose. (emphasis added). Section II provides in part:
(1) In its effort to anticipate or prevent unlawful activity, including terrorist acts, the NPYD must, at times, initiate investigations in advance of unlawful conduct. It is important that such investigations not be based solely on activities protected by the First Amendment. (emphasis added).
The Patrol Guidelines implement that policy and that principle in practice by establishing "three levels of investigative activity" in Section V: "checking of leads," "preliminary inquiries," and a "full investigation." Section V(A)-(C). The circumstances justifying each of these levels of investigation are spelled out in detail by the Patrol Guidelines, with varying requirements for authorization up the chain of command; a full investigation, for instance, must be authorized "by the Commanding Officer or Executive Officer of the Intelligence Division or the Commanding Officer of the Criminal Intelligence Section." Section V(C)(4). But each level of investigation of a political activity requires some indication of unlawful activity on the part of the individual or organization to be investigated. "Checking of leads," as Section V(A) of the Patrol Guidelines provides, "should be undertaken whenever information is received of such a nature that some follow-up as to the possibility of unlawful activity is warranted." A "preliminary inquiry" is undertaken, Section V(B) provides, "where the NPYD receives information or an allegation not warranting an investigation -- because there is not yet a 'reasonable indication' of unlawful activity -- but whose responsible handling requires some further scrutiny beyond the prompt and extremely limited checking out of initial leads." "A full investigation," Section V(C) provides, "may be initiated when facts or circumstances reasonably indicate that an unlawful act has been, is being, or will be committed" (emphases added). As I noted in Handschu IV, "a salient feature of the [Patrol] Guidelines is that they do not do away entirely with the 'criminal activity requirement' which is a principal cause of the NYPD's dissatisfaction with [the Original] Handschu [Guidelines]." 273 F. Supp. 2d at 346.
Reflecting the heightened post-9/11 concern about terrorism that was the principal justification for modifying the Handschu Guidelines, Section V(D) of the Patrol Guidelines is captioned "Terrorism Enterprise Investigation." According to its preamble, Section V(D) "focuses on investigations of enterprises that seek to further political or social goals through activities that otherwise aim to engage in terrorism through activities that involve force or violence, or that otherwise aim to engage in terrorism or terrorism-related crimes." The Section specifies certain indicia "that the group is pursuing terrorist activities or objectives," recites that "[t]he immediate purpose of a terrorism enterprise investigation is to obtain information concerning the nature and structure of the enterprise" in aid of "the longer range objectives of detection, prevention, and prosecution of the unlawful activities of the enterprise," authorizes certain information-gathering investigative techniques, and provides that, absent exigent circumstances, a "terrorism enterprise investigation" must be ...