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Barbara Handschu, et al v. Police Department of the City of New York

November 28, 2012


The opinion of the court was delivered by: Haight, Senior United States District Judge:




This Memorandum Opinion and Order resolves a dispute that has arisen between Class Counsel and the Corporation Counsel, who represents the NYPD. That dispute centers upon the breadth of an Order of Injunction contained in the Court's Opinion and Order dated January 19, 2010, reported at 679 F.Supp.2d 488 and designated as Handschu X in the bibliography of this long-lasting civil rights action.


Familiarity is assumed with respect to Handschu X and all other opinions in the case, of this Court and the Court of Appeals. The history of the case need not be recounted here in detail. For present purposes, it is sufficient to state that in 1979, this Court certified a class of all residents of New York City, individuals physically in the City, and organizations located or operating in the City who engage in or have engaged in lawful political, religious, educational 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.

See 605 F.Supp. 1384, 1388 (S.D.N.Y. 1985) (opinion approving settlement of class action and promulgation of Handschu Guidelines); affirmed, 787 F.2d 828 (2d Cir. 1986) (emphasis added).

That aspect of the case presently under consideration was generated when Class Counsel decided to challenge NYPD practices and procedures for the use of photographic and video taping equipment during surveillance activities. As stated in Handschu X, 679 F.Supp.2d 491: "Following the modification of the Handschu Guidelines, the NYPD promulgated Interim Order 47, which is captioned 'Guidelines for the Use of Photographic/Video Equipment to Record Police Operations and Public Activities' and sets forth detailed instructions and procedures for such conduct by NYPD officers." The wording of Interim Order 47 is recited in detail in Handschu VII, 475 F.Supp.2d 331 (S.D.N.Y. 2007).

Class Counsel moved for a Court order enjoining police conduct based upon Interim Order 47, on the grounds that Order 47 violated the Modified Handschu Guidelines and the United States Constitution. Corporation Counsel challenged Class Counsel's ability to assert such claims, and defended the validity of Order 47. These contentions begat a number of opinions, summarized in Handschu X at 679 F.Supp.2d 492-495. In essence, the Court rejected Class Counsel's claim that Interim Order 47 violated the Constitution, but upheld Class Counsel's standing and authority to claim that the Order violated the Handschu Guidelines. The Court allowed in principle Class Counsel's right to conduct discovery in aid of that claim.

During an exchange of attorneys' correspondence about discovery, Corporation Counsel Order 47 after the NYPD rescinded the Order and replaced it with Interim Order 22, which changed inadvertently revealed its conduct "in continuing to litigate for 17 months the validity of Interim the NYPD's surveillance policies and practices in material ways. Order 47 was rescinded and replaced by Order 22 on April 13, 2007. Corporation Counsel did not advise Class Counsel or the Court that this had happened. Instead, the parties continued to litigate and the Court continued to consider the validity and effect of Order 47." Handschu X, 679 F.Supp.2d at 500-501.

The previously unannounced demise of Interim Order 47 mooted Class Counsel's motion to enjoin its implementation. In that circumstance, Class Counsel tailored their claims in a manner summarized in Handschu X as follows:

As a result of the NYPD's promulgation of Interim Order 22 to replace Interim Order 47, and in the light of certain prior decisions by the Court during the litigation, Class Counsel now move to have the plaintiff class declared a "prevailing party" under § 1988 on its underlying motion for injunctive relief, thereby paving the way for an application for attorneys' fees. Class Counsel also ask the Court, in an exercise of its equitable powers, to direct the NYPD "to give notice to plaintiff class counsel and to the Court of any decision to withdraw Interim Order 22 or to substitute a new policy concerning the videotaping or photographing of political activity for that set forth in Interim Order 22." 679 F.Supp.2d at 492.

In Handschu X, the Court ruled that within the context of the litigation triggered by Class Counsel's motion challenging Interim Order 47, the plaintiff Class was a "prevailing party" as that phrase is used in 28 U.S.C. § 1988(b), so that the Class could recover attorneys' fees and costs in an amount to be determined. The Court further held that as alternative basis for recovering part of its attorneys' fees during this period, the Office of the Corporation Counsel was required by 28 U.S.C. § 1927 to pay as a sanction in an amount to be proved "Class Counsel's fees and expenses from April 13, 2007, the date Interim Order 47 was rescinded, to September 18, 2008, the date Corporation Counsel told Class Counsel of the rescission, to the extent that such fees and expenses would not have been incurred if Corporation Counsel had told Class Counsel of the Order's rescission when it occurred." 679 F.Supp.2d at 504 (footnote omitted).

Lastly, the Court granted Class Counsel's claim for equitable relief. Class Counsel's written submissions included a request, addressed to the court's equitable powers, which in Class Counsel's words asked that the NYPD be directed "to give notice to plaintiff class counsel and the court of any decision to withdraw Interim Order 22 or to substitute a new policy concerning the videotaping or photographing of political activity for that set forth in Interim Order 22." 679 F.Supp.2d at 504. I granted that request in principle because "I agree with Class Counsel that an order of some sort is justified by the fact that neither Class Counsel nor the Court were notified that Interim Order 47 had been withdrawn, a failure of responsibility ascribable more to Corporation Counsel than the NYPD." Id. In practice, I implemented Class Counsel's prayed-for equitable relief by departing somewhat from the language Class Counsel suggested, and including in the text of Handschu X an order of injunction of the Court's devising. It is the wording of that injunction that gives rise to the present dispute. The injunction reads as follows:

[I]f after the date of this opinion the NYPD promulgates and makes effective a new or revised order, directive or policy which alters, modifies or has any effect upon the sort of police conduct and activity which forms the subject matter of this action and is governed by the Handschu Guidelines, the NYPD or Corporation Counsel must give Class Counsel written notice of its substance within ten calendar days of the effective date of the new order, directive or policy. If the NYPD is of the view that such disclosure should not be made for security reasons or other concerns, the requisite notice must be made to this Court within the same time frame for examination in camera.

Handschu X is dated January 19, 2010. Thereafter the Court filed an opinion dated July 18, 2010, reported at 2010 WL 2991414 (Handschu XI), which quantified the amounts of attorneys' fees and expenses owing by the City to the plaintiff class as a prevailing party under 28 U.S.C. § 1988(b), and owing by Corporation Counsel to the class as a sanction under 28 U.S.C. § 1927.

The NYPD filed a notice of appeal from Handschu X and Handschu XI. Before the appeal was perfected, the parties entered into a stipulation withdrawing the appeal on certain terms and conditions which appear in a Stipulation and Order dated March 9, 2011, which the Court endorsed on March 14, 2011 and made the subject of a further implementing order dated July 18, 2011.

Specifically, in consideration of the NYPD's withdrawing its appeal, the parties jointly requested this Court to enter an order modifying its rulings in Handschu X and Handschu XI by (i) vacating its finding that the plaintiff class was a "prevailing party"; (ii) vacating its finding that the Office of the Corporation Counsel engaged in sanctionable conduct; and (iii) vacating the sanction imposed under the Court's inherent authority upon the Office of the Corporation Counsel. If the Court made those modifications, the NYPD agreed to pay Class Counsel the fees in the amounts awarded to them in Handschu XI. The Stipulation further recited at ΒΆ 3 the parties' agreement to submit to this Court ...

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