The opinion of the court was delivered by: Haight, Senior United States District Judge
In an opinion and accompanying order dated February 15, 2007 and reported at 475 F. Supp. 2d 331 (S.D.N.Y. 2007) ("Handschu VII"or "the 2/07 Order"), familiarity with which is assumed, the Court granted the motion of counsel for the plaintiff class ("Class Counsel") to enjoin the implementation of Interim Order 47 ("Order 47") issued by Commissioner Raymond Kelly of the New York Police Department ("NYPD") to regulate the NYPD's photographing and videotaping of public demonstrations and participants in them.
The NYPD, represented by the Corporation Counsel of the City of New York ("Corporation Counsel"), now moves under Rules 59 and 60(b)(1), Fed. R. Civ. P., and Local Civil Rule 6.3 for an order "vacating, amending, altering, and/or reconsidering" the 2/07 Order and "relieving defendants" from an earlier order of this Court issued on August 6, 2003 (the "8/03 Order"). The NYPD also asks the Court to approve a Proposed Interim Order 47 (the "Proposed Order") to replace Order 47.
For the reasons that follow, the NYPD's motion is granted in part and denied in part. The 2/07 Order will be vacated and directions given to counsel for further submissions.
I assume familiarity with all prior decisions in this action and set forth here only a summary of the events and rulings most pertinent to the NYPD's present motion. The recent motions concerning Order 47 implicate a consent decree entered by this Court in an action filed in 1971 in which plaintiff citizens of New York City complained that those in charge of the NYPD were conducting surveillance and intelligence-gathering activities that violated their rights under the United States Constitution. See Handschu v. Special Servs. Div., 349 F. Supp. 766 (S.D.N.Y. 1972) ("Handschu I") (Weinfeld, J.) (denying defendants' motion to dismiss the complaint). A plaintiff class was certified. In 1985 the parties entered into a consent decree that established guidelines governing police conduct during investigations of political activity. See Handschu v. Special Servs. Div., 605 F. Supp. 1384 (S.D.N.Y. 1985) ("Handschu II"), aff'd 787 F.2d 828 (2d Cir. 1986). I will refer to those guidelines, appended to the opinion in Handschu II, as "Original Handschu" or "the Guidelines."
Original Handschu set up a three-person "Handschu Authority," comprised of the Deputy Commissioner for Legal Matters of the NYPD, the First Deputy Commissioner of the NYPD, and a civilian member appointed by the mayor upon consultation with the Police Commissioner. See Handschu II, 605 F. Supp. at 1420. Original Handschu's General Statement of Policy provided, "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." Id. The Guidelines provided that the NYPD "shall not engage in any investigation of political activity except through the PSS of the Intelligence Division or its successor and such investigations shall be conducted as set forth in these guidelines." Id. (Section IV(A)). The Guidelines defined "political activity" as "[t]he exercise of a right of expression or association for the purpose of maintaining or changing governmental policies or social conditions" and "investigation" as "a police activity undertaken to obtain information or evidence." Id. (Section II).
Original Handschu set forth protocols to be followed corresponding to different levels of investigation: in certain circumstances an "Investigation Statement" specifying the factual predicate for the inquiry had to be filed; in others, additional approval had to be sought from the Authority. See id. at 1421 (Section IV(B)-(C)). For any level of investigation (apart from an "Event Planning Inquiry" that involved collecting logistical and other basic information about a planned public event), the police could not take action under the Guidelines unless they had received "specific information" that criminal activity was taking place or was about to take place. See id. (Section IV(C)). Section V provided, "At any time, a person or a member of a group or organization having reason to believe that such person, group or organization has been named in PSS files as the result of an investigation in connection with or related to his, her or its political activities, may request in writing which sufficiently identifies the requesting party that the Authority make an inquiry of the PSS." Id. at 1422 (Section V). Upon receipt of such a request, the Authority was then required to make an inquiry into the matter and to determine whether the Guidelines had been violated. If the Authority determined that the NYPD investigation had not been conducted in compliance with the Guidelines, it was to submit a report to the Police Commissioner, who was then to take appropriate disciplinary measures. Id. at 1423 (Section V).
In 1989 Class Counsel moved to hold the NYPD in contempt of the consent decree. They claimed that a number of police activities, including the monitoring of a radio station and the subsequent preparation and retention of summaries of its programs, had violated the Guidelines. I declined to hold the NYPD in contempt but did conclude that some of its activities had been improper. I also clarified the scope and meaning of the Guidelines. See Handschu v. Special Servs. Div., 737 F. Supp. 1289 (S.D.N.Y. 1989) ("Handschu III").
After the events of 9/11, the NYPD moved to modify the consent decree and Original Handschu. The NYPD claimed that in order to combat the threat of terrorism in a changed world, it needed greater flexibility in intelligence gathering and dissemination than Original Handschu allowed. In an opinion and order dated February 11, 2003, I granted the NYPD's motion and modified the consent decree and its accompanying Guidelines. See Handschu v. Special Servs. Div., 273 F. Supp. 2d 327 (S.D.N.Y. 2003) ("Handschu IV" or "the 2/03 Order").
The modified Guidelines eliminated the procedures set forth in Section IV concerning the NYPD's conduct of investigations. All that remained of Original Handschu were the definitions of "political activity," "investigation," and "Authority"; the continued existence of the Authority; and the first sentence of the General Statement of Policy stating that activities of the NYPD would conform to constitutionally guaranteed rights and privileges. The mandate of the Authority to review complaints by persons or groups was reduced to those situations in which the person or group had reason to believe that a police investigation had violated "constitutionally guaranteed rights and privileges." See Handschu IV, 273 F. Supp. 2d at 350 (Section V). In making its inquiry under the new regime, the Authority was only empowered to examine whether the investigation by the police "was conducted in conformity with the Constitution." Id. The text of the modified Guidelines made clear, then, that only violations of the United States Constitution were now subject to review by the Authority.
During the modification process, a question arose as to whether eliminating much of Original Handschu and tying any violation of what remained to the constitutional standard transgressed the Supreme Court's decision in Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367 (1992). Rufo held that even if circumstances warranted modification of a consent decree, such modification should not "strive to rewrite [it] so that it conforms to the constitutional floor." 502 U.S. at 391. I addressed this concern in Handschu IV and concluded that while "the modification elevator may have descended close to the constitutional floor," Handschu IV, 273 F. Supp. 2d at 344, such a result did not descend all the way down for two reasons. The first was preservation of Section V, the section that charged the Authority with investigating complaints by individuals or groups. Of this section, I said:
One can readily discern in Section V of Modified Handschu significant enhancements of the remedies secured to the public by the Constitution and the civil rights laws and the deterrent effect of those laws on unlawful police conduct. First, Section V gives the John Does of the City a very considerable leg up in pressing their claims. If the Authority reports to John Doe that no constitutional violation occurred, he may be disappointed, but his right to file a § 1983 action is undiminished. Second, NYPD commanders will surely be aware that investigations for which they are responsible may have the unwanted effect of having the Handschu Authority come to call.
I also noted that the NYPD had committed to adopting into its Patrol Guide a version of guidelines concerning investigations of political activity that had been developed by the FBI after 9/11. In my estimation, this commitment was "a relevant consideration in the 'constitutional floor' analysis required by Rufo." Id. In other words, the NYPD's undertaking to adopt and adhere to the FBI guidelines was a factor in the Court's constitutional floor analysis. Indeed, I conditioned modification of the decree on the promulgation of these rules.*fn1 See Handschu IV, 273 F. Supp. 2d at 349 ("If the NYPD complies with these conditions [including the promulgation of NYPD guidelines containing the substance of the FBI Guidelines], the Court will enter an Order modifying the decree.").*fn2 When the NYPD complied with the Court's order directing them to promulgate the rules, and adopted as guidelines a document entitled "Guidelines for Investigations Involving Political Activity" into its Patrol Guide, I approved modification of the consent decree in an order entered in April 2003. Although Class Counsel asked me to do so, I did not at that time incorporate these "NYPD Guidelines" into the Court's Order and Judgment.
This was the law of the case only for a short period of time. Upon learning of certain activities of the NYPD in conjunction with arrests at political protests, Class Counsel made a Rule 59(e) motion to alter or amend the Court's order approving modification. On August 6, 2003, I granted Class Counsel's motion. See Handschu v. Special Servs. Div., 288 F. Supp. 2d 411 (S.D.N.Y. 2003) ("Handschu V"). I held 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." Id. at 418. I determined that a revision of the Order and Judgment would give plaintiff class "increased protection warranted by recent events without unfairly burdening the NYPD." Id. To provide this additional strengthening, I stated in the decretal portion of the Order:
[I]n order to clarify and enhance the standing and authority of counsel for the plaintiff class to contend, if so advised, that violations of the said Guidelines have deprived a member or members of the plaintiff class of rights or freedoms guaranteed to them by the Constitution, the said Guidelines are, to that extent and for that purpose, incorporated by reference into and made a part of this Second Revised Order and Judgment.
The 8/03 Order was not the result of a modification motion, but rather a Rule 59 motion, see id. at 419 n.12. I did not perform another Rufo analysis or alter that analysis underlying the 2/03 modification. The 8/03 Order amended the 2/03 modification in order to incorporate the NYPD Guidelines into the decree, as described. The resulting combination of the text appended to the 2/03 Order and the text of the NYPD Guidelines (which appears as an appendix to the 8/03 Order) became the final version of the modified Guidelines, which I will refer to as "Modified Handschu."
At this point the modification process was complete. Modified Handschu is the version of the decree under which the parties have coexisted since August 2003. Nonetheless, it appears that uncertainty remained as to the consequences of my incorporation of the NYPD Guidelines into the Order and Judgment of the Court. When Class Counsel appeared before the Court with their motion to enjoin Interim Order 47, they possessed one view of those consequences; it turned out that Corporation Counsel possessed quite another. In Handschu VII, the 2/07 opinion and order, I granted Class Counsel's motion. For the reasons there stated, I held that Modified Handschu empowered the plaintiff class to seek relief -- including contempt -- for violations of the NYPD Guidelines and that Interim Order 47 violated the NYPD Guidelines. It is this 2/07 Order that the NYPD's present motion requires me to revisit.
B. The NYPD's New Affidavits
In support of its present motion, the NYPD submitted new affidavits whose provenance and content it is necessary to consider at some length.
In Handschu VII, I quoted three affidavits submitted by Class Counsel in response to questions the Court posed to both parties in an earlier memorandum opinion, 2006 WL 1716919 (S.D.N.Y. June 21, 2006) ("Handschu VI"). See Handschu VII, 475 F. Supp. 2d at 344-49. One affidavit described police videotaping of participants in a march organized by the Coalition for the Homeless in front of Mayor Bloomberg's Manhattan townhouse home. A participant's affidavit described the march, undertaken with police permission, as consisting "of approximately 50 people who held signs and chanted on the sidewalk in a moving picket line," with "no illegal activity taking place at the march" and no arrests made. Id. at 347. Another affidavit described police videotaping of participants in a march from Marcus Garvey Park in Harlem to Central Park. A participant's affidavit described the marchers as "lawfully and peacefully walking," with no arrests made.
Class Counsel filed these affidavits on August 16, 2006. The Court decided Handschu VII on February 15, 2007. During that interval, Corporation Counsel did not submit any affidavits giving a different version of the events described. In those circumstances, I regarded the affidavits submitted by Class Counsel as accurate accounts of what transpired and gave them some prominence in my opinion. However, in support of the NYPD's present motion under Rule 59, Corporation Counsel submit affidavits of attorneys in the NYPD Legal Department who observed these two marches and give quite different accounts of what occurred.
As for the Coalition for the Homeless demonstration in front of the Mayor's house, the affidavit of Mary C. Kilker transforms the participants from a group of citizens walking peacefully and in good order on the sidewalk into an unruly and disobedient crowd, illegally blocking pedestrian and vehicular traffic, and even forcing a mother and her child in a baby carriage off the sidewalk and into the street. Kilker says in her affidavit at ¶¶ 4-6:
In advance of the event, the organizers reached an agreement with the NYPD with respect to marching on the south sidewalk on 79th Street, between Fifth and Madison Avenues (the "Sidewalk"). The Sidewalk is narrow, approximately seven and one half feet wide. The agreement permitted demonstrators to walk two abreast on the Sidewalk and back again, provided there was sufficient space on the Sidewalk to simultaneously accommodate other pedestrians. If not, a single file march would be permitted. The demonstrators agreed to walk to Madison Avenue, turn around and walk back to Fifth Avenue. Upon their return to Fifth Avenue the group was to demonstrate on the west side of Fifth Avenue at 79th Street, on either the north or south side of the transverse. A second demonstration area was set up on the north sidewalk of 79th Street in front of 980 Fifth Avenue for a representative group of twenty five.
Despite this agreement, I observed the demonstrators marching slowly down the Sidewalk -- taking up the entire Sidewalk -- to the exclusion of all others. As a result, several individuals, including a mother with a baby carriage and a small child were forced off the Sidewalk and into the street. At this point the organizers of the event were warned that they were blocking pedestrian traffic, and they needed to proceed in single file. When the demonstrators failed to comply with this directive and were clearly in violation of New York State Penal Law section 240.20 subdivision (5), the Technical Assistance Response Unit (TARU) was instructed to begin videotaping.
At this point members of the police department discussed making arrests. While the demonstrators were in violation of the Penal Law and subject to arrest, the decision was made not to take enforcement action at that time.
I have reviewed TARU's videotapes of the event from that date. The tapes record pedestrians being into the street, large groups of demonstrators congregating on the corner of 79th Street and Madison Avenue completely blocking the crosswalk and demonstrators standing in the street beyond the parking lane thereby interfering with vehicular traffic.
The Marcus Garvey Park march, sponsored by an organization called the Troops Out Now Coalition, was observed by a member of the NYPD Legal Department named Anne Eleanor Stone. Stone says in her affidavit at ¶¶ 4-5:
The event began with a rally in Marcus Garvey Park, followed by a march past a U.S. Army recruiting station on 125th Street and continued down to Central Park. A rally was held in Central Park, after which a march proceeded to the Mayor's Residence where a final rally was held. The entire event lasted approximately eight hours, with over four thousand participants.
I reviewed the only two videotapes filmed by the Technical Assistance Response Unit (TARU) for this event. The combined duration of the tapes is less than 20 minutes. Included in the tapes are segments showing the crowd as they exited Marcus Garvey Park, an arrest which took place in front of the recruitment station, a group of demonstrators on bicycles riding in violation of New York City Traffic regulations, several thousand demonstrators marching towards Central Park, a contentious interaction between demonstrators and police, several thousand demonstrators marching out of Central Park, and a group of more than two demonstrators congregating together wearing masks in Central Park near 79th Street in violation of New York State Penal Law § 240.35(4).
The descriptions of events given by these two NYPD attorneys are materially at odds with those given in the participants' affidavits submitted by Class Counsel in August 2006. Why Corporation Counsel waited until after the Court filed the 2/07 Opinion and Order before disputing the Class's factual accounts "passeth all understanding."*fn3 Surely the reason proffered by Corporation Counsel is difficult to understand: they say that the defendants "did not make submissions with respect to these events because plaintiffs' motion was a facial challenge to Interim Order 47," and "[h]ad defendants believed the Court's determination would be influenced by the accounts of class members," they "would have made a submission for the record." Def.'s Mem., dated March 5, 2007, at 17 n.12. While Class Counsel's initial motion could be read as limited to a facial attack upon the validity of Order 47, the Court's questions to the ...