o¡>!n/{)/j wê[email protected]/08/06 · (s.d.n.y.1985), affd., 787 f.2d 828 (2d cir.1986). that...

Wêstlaw@O¡>!N/{)/J

288 F.Supp.2d 411(Cite as: 288 F.Supp.2d 411)

H

United States District Court,S.D. New York,

Barbara HANDSCHU, Ralph Digia, Alex McKeiver,Shaba OM, Curtis M. Powell, Abbie Hoffman, MarkA. Segal, Michael Zumoff, Kenneth Thomas, RobertRusch, Anette T. Rubenstein, Michey Sheridan, Joe

Sucher, Steven Fischler, Howard Blatt and EllieBenzone, on behalf of themselves and all others si-

milarly situated, Plaintiffs,v.

SPECIAL SERVJCES DIVISION, a/k/a Bureau ofSpecial 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 PoliceDepartment acting as under-cover operators and in-

formers, Defendants.

No. 71 Civ. 2203(CSH).Aug. 6, 2003.

Political activists who had been interrogated fol-lowing arrest filed motion seeking modification ofexisting guidelines governing city police department'sinvestigations of political activity, which had been setout in District Court's consent decree, 605 F.Supp.1384,affirmed787 F.2d 828. The District Court,Haight, Senior District Judge, held that ignorance ofinvestigatory techniques on part of department'shighest officials warranted modification of consentdecree to provide for enhanced level of judicial re-view.

Ordered accordingly.

West Headnotes

[1] Federal Civil Procedure 170A ~2571

170A Federal Civil Procedure170AXVII Judgment

170AXVII(D) On Trial of Issuesl70Ak2571 le. In General. Most Cited Cases

A court's orders, judgments, and decrees can

serve not only to punish conduct, but also to disciplineand to deter.

[2] Federal Civil Procedure 170A ~2397.4

l70A Federal Civil Procedurel70AXVII Judgment

170AXVII(A) In General170Ak2397 On Consent

170Ak2397.4 le. Amending, Opening, orVacating. Most Cited Cases

Ignorance of investigatory techniques on part ofcity police department's highest officials warrantedmodification of consent decree to pennit arrestedpolitical activists to pursue certain actions in case ofalleged violation of existing guidelines governingdepartment's investigations of political activity, whereofficials should have known of investigators' allegedpattern of unconstitutional conduct.

*412 Paul G. Chevigny,Jethro M. Eisenstein, Profeta& Eisenstein, Martin R. Stolar, Franklin Siegel, At-torneys for plaintiff class, Arthur Eisenberg, NewYork Civil Liberties Union, appearing with attorneysfor plaintiff class, New York City, for Plaintiffs.

Gail Donoghue, Corp. Counsel of City of New York,New York City, for defendant.

MEMORANDUM OPINIONHAIGHT, Senior District Judge.

In this class action involving certain conduct onthe part of the New York City Police Department("NYPD"), represented by the office of the Corpora-tion Counsel, the attorneys for the certified class("Class Counsel") move for reconsideration of theCourt's Revised Order and Judgment entered on datedApril 8, 2003 (the "Order and Judgment"), and to alteror amend it. FNl The NYPD resists the motion.

FNl. The Order and Judgment entered onApril 8, 2003, revised an earlier order andjudgment entered on March 20, 2003. Thecircumstances which necessitated the revi-sion are not pertinent to the present motion.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


I. BACKGROUNDThe history of this action prior to the entry of the

Order and Judgment on April8, 2003 is stated in detailin the Court's opinion dated February 13, 2003, No. 71Civ. 2203, 2003 WL 302258 (S.D.N.Y. Feb.B, 2003)("the February Opinion" or "the Opinion"). Familiar-ity with that opinion is assumed. Its detailed historyneed not be repeated.

The Order and Judgment implemented the Feb-mary Opinion's ruling which granted the NYPD'smotion to modify the Handschu Guidelines, on con-dition that the NYPD include in its Patrol Guide anadapted version of the FBI Guidelines approved by theCourt after consideration of comments by ClassCounsel. The NYPD captioned the adapted Guidelinesas "Guidelines for Investigations Involving PoliticalActivity" (hereinafter "NYPD Guidelines"). While theOrder and Judgment's third decretal paragraph re-quired that the NYPD Guidelines "remain in theNYPD Patrol Guide unless otherwise directed by theCourt," it did not specifically incorporate the NYPDGuidelines as an integral part of the Order and Judg-ment. In that regard, Class Counsel contended thenand contend now, the Order and Judgment differedfrom the order and judgment approving the originalHandschu Guidelines, see 605 F.Supp. 1384(S.D.N.Y.1985), affd., 787 F.2d 828 (2d Cir.1986).That omission, when coupled with a "reserva-tions"*413 provision in the NYPD Guidelines that theGuidelines do not "create any rights, substantive orprocedural, enforceable by any party in any matter,civil or criminal," FN2 discomfited Class Counsel Classbecause, in their view, the NYPD was thereby immu-nized from being held in contempt of a Court order if itsubsequently violated the Guidelines.

FN2. The full text of the Reservations pro-vision in the NYPD Guidelines appears in theFebruary Opinion, 2003 WL 302258, at *19.

Notwithstanding these professed misgivings onthe part of Class Counsel, the litigants greeted theresult achieved by the Judgment entered on April 8,2003 with unanimous acclaim. Corporation Counseland Class Counsel issued separate statements to themedia, expressing a lively satisfaction with the out-come (although the stated reasons for their approvalwere somewhat different). Class Counsel announcedthat they would not appeal from the Order and Judg-ment. The NYPD had no issue to raise on appeal.

Page2

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

The United States' impending invasion of Iraqgenerated considerable public protest in the New YorkCity area. Anti-war demonstrations were held on thestreets of Manhattan on February 15, March 22, andMarch 27, 2003. The NYPD was responsible formaintaining order during these rallies, includingkeeping the demonstrators within areas defined by theNYPD and approved by this Court and the SecondCircuit. During the February 15 rally, the police ar-rested 274 persons "for conduct ranging from block-ing traffic to assault on police officers." Declaration ofInspector John W. Cutter, Commanding Officer of theCriminal Intelligence Section of the Intelligence Di-vision ("INTEL") of the NYPD dated May 15, 2003("Cutter Decl.") at '¡[15. Additional arrests for similarconduct were made during the March 22 and March 27rallies.

As the result of public statements by protest or-ganizers prior to the February 15 rally, as well as"other specific information," the NYPD had reason tobelieve that "particular groups intended to engage inunlawful conduct at the February 15th event." CutterDecl. at '¡[14. In preparation for that conduct and thearrests that would surely follow, Inspector Cutterprepared what was captioned a "Demonstration De-briefing Fonn" for INTEL officers to use in ques-tioning arrested persons while in custody. The sectiontitled "Subject Information" contained the usual "pe-digree" questions, but also had lines to fill in cap-tioned "Organization Name," "Organization Posi-tion," "School Name," and "Prior DemonstrationHistory." Inspector Cutter says that the "questionabout the school attended by the arrestee" was de-signed "to help confirm information about certaineducational institutions used by some groups as a basefor planning disruptive activities." Id. at '¡[16. He saysfurther that "[i]ndividuals voluntarily made a personalchoice about whether to answer questions asked byINTEL officers," and that "[b ]ased on my interviewswith INTEL officers who conducted interviews ofindividuals arrested at these events, they asked onlythe questions contained in the debriefing form." Id. at'¡['¡[17,20.



A quite different picture is painted by 12 affida-vits Class Counsel submit, swam to by individualswho were arrested and questioned in connection withone or more *414 of the three events.FN3 These indi-viduals say that, following their arrests, they werequestioned by plainclothes NYPD officers. The ques-tions included the following:

FN3. The affidavits are exhibits to the dec-laration of Jethro M. Eisenstein, one of ClassCounsel, dated May 23,2003.

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 AlGore 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 thefuture?

At which website did you find out about thedemonstration?

What will you be doing and where are you goingwhen 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 therally?

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 getinvolved 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 bereleased until I spoke with a detective. I was held for15 hours before receiving a desk appearance ticket."FN4

FN4. Affidavit of Katherine S. Hardy, veri-fied May 22,2003.



While I accept Inspector Cutter's averment thatINTEL officers conducting these interviews told himthat "they asked only the questions contained in thedebriefing form," it seems clear that the interrogationsconducted by at least some officers went far beyondthe form. The affidavits of the twelve arrestees reveala pattern in the inquiries, and it is fanciful to suggestthat they are all inventing questions they were neverasked.

Inspector Cutter states further that "[w ]hen pro-vided, responsive information was recorded on thedebriefing form FNS and entered into a data base. Theforms were then destroyed." Cutter Decl. at ~ 17.

FN5. Of course, there were no spaces on thedebriefing form to record answers to thequestions the arrested demonstrators say theywere asked.

According to accounts appearing in The NewYork Times issues of.April IO and 11, 2003, the NewYork Civil Liberties Union wrote to NYPD Commis-sioner Raymond W. Kelly to complain about the"debriefing"*415 practices. In an article in the April1O issue at page Dl, an NYPD spokesman was quotedas saying that "Police Commissioner Raymond W.Kelly and his deputy commissioner for intelligence,David Cohen, a former top Central IntelligenceAgency official, did not know the debriefing form wasin use"; the article added that "after the practice cameto light, the Police Department said it would destroythe database, created with a debriefing form, andlargely abandon the initiative, which civil libertariansand constitutional law experts said was deeply troub-ling." An article in the Times April 11 issue at pageD5 reported that at a news conference CommissionerKelly said the practice "was neither illegal nor un-constitutional," being instead a "good faith effort todevelop information that would help police officialsdetermine how to deploy officers at future demon-strations." Kelly confirmed, however, that neither henor deputy commissioner Cohen "knew about thepractice," and added that "he had ordered that no suchforms be created in the future without the approval ofhis senior intelligence aide, the deputy commissionerof intelligence." For his part, Inspector Cutter says inhis declaration at ~~ 21 and 22 that "[o]n or aboutApril8, 2003 my superiors directed that the use of thedebriefing fonn be discontinued and the informationrecorded in the database deleted," directions which

Page4

Cutter says he obeyed, although adding that"[a]nalysis of the information provided by the arresteddemonstrators of a statistical nature and in anonymousform bearing no identification to any person, wasretained by INTEL to be utilized in planning the po-licing of future demonstrations."

In these circumstances, Class Counsel move toamend the April 8, 2003 Order and Judgment whichmodified the consent decree and implemented theModified Handschu Guidelines, so as to incorporatethose Guidelines into the Order and Judgment. TheCourt has received briefs and heard oral argument.Class Counsel make the dramatic charge that "[t]heintelligence division activities that have recently cometo light make it clear that the NYPD does want toresurrect the Red Squad. These activities show thatone of the purposes behind the effort to eviscerate theconsent decree was to free the NYPD to collect in-formation about political activity as it did in the past."Eisenstein declaration at ~ 16 (internal quotationmarks omitted). Corporation Counsel contend that the"debriefing" practice violated neither the Constitutionnor the Handschu Guidelines, original or modified; FN6

that Class Counsel have shown no entitlement to re-lief; and that the relief requested would only visit uponthe NYPD a counterproductive and unjustified form ofpunislnnent.

FN6. Both versions of the Guidelines areimplicated because the first of the three Iraqwar protests occurred on February 15, 2003,prior to the Court's decision and order al-lowing the modifications.

II. DISCUSSIONIn the February Opinion, I had occasion to ob-

serve:

In this American democracy, government is ob-ligated by its compact with the citizens who consent tobe governed to preserve for each the freedoms andrights conferred by the Constitution, while at the sametime ensuring the safety of all. Tensions between theseresponsibilities of government, executive and legisla-tive, inevitably arise, as they have in this case.

2003 WL 302258, at *20. The events giving riseto the present motion furnish another*416 example ofthose tensions, and once again "it falls to the judicialbranch to resolve them." Id.



The NYPD's successful motion to modify theHandschu Guidelines depended for its factual basisupon the sworn declarations of the officer in charge ofintelligence operations, Deputy Commissioner Cohen.The Department's resistance to Class Counsel'spresent motion depends upon the declaration of alower ranking officer, Inspector Cutter. NeitherCommissioner Kelly nor Deputy Commissioner Co-hen have submitted declarations. Knowledge ofConunissioner Kelly's views must be gleaned from thenewspapers.

Several aspects of Inspector Cutter's declarationare problematic. The first, and most glaring, problemis that officer's description of the questionnaire INTELofficers used while interrogating arrested demonstra-tors as a "Demonstration Debriefing Fonn" (emphasisadded). To put it charitably, "debriefing" is a misno-mer. That noun and its root verb have well recognizeddefinitions in current English speech. "Debrief' isdefined as "to interrogate (as a pilot returning from amission or a government official returning fromabroad) in order to obtain information or intelligence."Webster's Third New International Dictionary (una-bridged) (1993) at page 582. "Debriefing" is definedas a "report of a mission or task." Worldbiet 1.6, co-pyrighted in 1997 by Princeton University. One neednot share the linguistic expertise of a William Safire toperceive that these arrestees were not being "de-briefed" as that word is currently used. The demon-strators taken into custody were not pilots returnedfrom a mission or government officials returned fromabroad, giving reports to their comrades in arms orbureaucratic superiors in the ordinary course of publicservice. The arrestees did not want to be in policestations, and interrogation by INTEL officers was notpart of their professional routines. But the phrase forwhat actually occurred comes readily to mind. Theseindividuals, having been arrested, were in custodywhile being interrogated by NYPD officers. It neces-sarily follows that they were subjected to a "custodialinterrogation," a procedure with potential constitu-tional complications familiar to law enforcement of-ficers, prosecutors, and defense counsel, and pre-sumably encountered by Inspector Cutter while hewas a student at the Police Academy, if not befare. Iam not prepared to say that Inspector Cutter's use ofthe phrase "demonstration debriefing fonn" was de-liberately disingenuous, but it was certainly an oddchoice of words.

Moreover, I noted in Part I Inspector Cutter's as-sertion that the arrested demonstrators "voluntarilymade a personal choice about whether to answerquestions asked by INTEL officers." Inspector Cuttercannot have personal knowledge on that point; there isno indication that so senior an officer personally par-ticipated in these post-arrest interrogations. So hemust be relying upon what junior INTEL officersreported to him. But those reports cannot be acceptedat face value. As demonstrated in Part I, there is amplereason to believe that at least some INTEL officersasked questions going far afield from the relativelyfew in the form, despite reports to Inspector Cutterthat the officers "asked only the questions contained inthe debriefing form." In addition, one arrested de-monstrator swore that she was detained in custody for15 hours so that she could be interviewed by a detec-tive, an extended detention at odds with voluntaryanswers willingly given. And quite apart from anyparticular length of detention, the fact that the de-monstrators were under arrest at the time is itself asufficient ground to question the voluntary nature oftheir answers. During custodial*417 interrogationthere is an "inherently compelling pressure[ ] whichwork[s] to undermine the individual's will to resist andto compel him to speak where he would not otherwisedo so freely," Pennsylvania v. Muniz, 496 U.S. 582,596 n. 10, 110 S.Ct. 2638, 110L.Ed.2d 528 (1990).

At oral argument Corporation Counsel characte-rized Class Counsel's motion as one "to punish thepolice department for what plaintiffs' class believeswas unconstitutional with respect to these two [sic]demonstrations," a belief Corporation Counsel arguesClass Counsel could not sustain because, given thedemonstrators' illegal conduct for which they werearrested, the questions put to them were for a "lawenforcement purpose," Transcript of Argument("Tr.") at 60-61.

[1] While this contention has a surface appeal, acourt's orders, judgments and decrees can serve notonly to punish conduct, but also to discipline and todeter. These recent events reveal an NYPD in someneed of discipline. On the NYPD's own account, nei-ther Commissioner Kelly nor Deputy CommissionerCohen knew about Inspector Cutter's "debriefing"form; and Inspector Cutter did not know that (as I havefound) INTEL officers were exceeding that form'sinquisitorial boundaries.Î'" Commissioner Kelly told


288 F.Supp.2d411(Cite as: 288 F.Supp.2d 411)

the press that he saw nothing wrong with the de-briefing procedure, while at the same time orderingInspector Cutter to stop doing it and never do it againwithout Deputy Commissioner Cohen's permission.This has about it the aura of discipline; and one wouldnot be surprised to learn that Inspector Cutter hadsome words for the INTEL officers whose interroga-tions roamed far off the reservation (although there isno evidence of this, and the possibility is not a factorin the view I take of the case). Moreover, if theseinquisitorial practices were problematic, a modifiedjudgment from this Court might have a salutary de-terrent effect.

FN7. Corporation Counsel's contentions fo-cused only upon the relatively few questionsappearing on the form. Ms. Donoghue, theable Special Assistant to the CorporationCounsel who argued the case, took somepains to distance herself from the additionalquestions described in the arrested demon-strators' affidavits; she said: "But thosequestions were not authorized by the intelli-gence division. That's not what the officerswere told to inquire about. The reason theywere given the debriefing fonn was to focustheir questions on the issues that were im-portant to the police department." Tr. 32.Counsel's disclaimer is understandable. It isdifficult to discern any legitimate intelligencegathering or law enforcement purpose insome of the questions the INTEL officersasked arrested demonstrators.

While the Corporation Counsel poses the ques-tion as one of a constitutional violation vel non, andconstitutional issues were touched upon in the briefsand arguments, I do not think I am required to find thatthe "debriefing" procedures offended the Constitutionto grant the plaintiff class relief on the present motion.On the contrary, there are significant reasons why Ishould not reach the constitutional question. TheConstitution itself, as binding upon this Court as it isupon the NYPD, limits the judicial power of theUnited States to presently existing "cases" and "con-troversies," Article III, Section 2; but Class Counselare not presently asking the Court to declare thisNYPD procedure unconstitutional, having preferredinitially to place the issue before the Handschu Au-thority, which is still considering its response. Nor hasany individual arrested and interrogated demonstrator

asked this Court for a constitutional ruling.FN8 Addi-tionally,*418 lower federal courts are routinely in-structed to eschew constitutional rulings if the cir-cumstances of the case allow.

FN8. Lest there be any misunderstanding, Iwould not regard such an action as suffi-ciently "related" to the captioned case toremove the case from the usual randomprocedures for assigning cases to the docketsof the Judges of the Court.

[2] I conclude that the plaintiff class is entitled toa strengthening of the Judgment because the two-leveldisplay of operational ignorance on the part of theNYPD's highest officials with respect to an investi-gatory technique resonant with constitutional over-tones, as revealed by this record, requires that en-hancement. While I accept Commissioner Kelly'sstatement to the press that he and Cohen, the NYPD'sDeputy Commissioner of Intelligence, did not knowwhat Inspector Cutter was doing in the name of intel-ligence, I think it clear that in such a sensitive area andat such a sensitive time (including the pendency of theNYPD's motion to amend the Handschu consent de-cree) the two commissioners should have known, It isentirely appropriate to hold senior police officials tothat common law tort standard of responsibility; inthis Court's first Handschu opinion, Judge Weinfeldheld that the plaintiff class "would be entitled to in-junctive relief' if plaintiffs proved "a pattern of un-constitutional conduct, of which the defendants shouldhave been aware," Handschu v. Special ServicesDivision, 349 F.Supp. 766, 771 (S.D.N.Y.1972)(emphasis added). FN9 By the same token, accepting theCorporation Counsel's argument that Inspector Cutterdid not know what questions his INTEL officers wereasking, he should have known,

FN9. The defendants in the case as it existedbefore Judge Weinfeld included the Mayor ofthe City of New York and CommissionerKelly's predecessor in office. See Handschu,349 F.Supp. at 767.

I do not accept Class Counsel's seeming accusa-tion that the NYPD, while asking this Court to modifythe Handschu consent decree and guidelines, was atthe same time scheming in bad faith to resurrect theodious Red Squad. The NYPD raised serious issues ofpublic security with which this Court's February Opi-



nian attempted to deal. At that time I regarded theOrder and Judgment implementing that Opinion asstriking a proper balance between the legitimate de-mands of public security and individual freedoms.Given the NYPD intelligence-gathering techniquesbeing employed at that same time, as revealed by thepresent record, I no longer hold that confidence; andthat is so, notwithstanding Commissioner Kelly'spublic assurance (which I accept) that for the presentthat particular technique is not being utilized.

Having concluded that the plaintiff class is en-titled in principle to a further revision of the Order andJudgment, it remains to consider how this should beaccomplished in practice. Class Counsel, in apost-argument letter dated June 2, 2003, offer sug-gestions which seem to me balanced and fair. ClassCounsel propose to leave unchanged the "Reserva-tions" paragraph with which the Modified HandschuGuidelines appearing in the NYPD Patrol Guide con-cludes, but to include in a revised Order and Judgmentlanguage to the effect that (to quote counsel's letter)"the last paragraph of the Guidelines shall be read inlight of the fact that the Guidelines are incorporated inthe Consent Decree, and procedures under the ConsentDecree may pursued in case of an alleged violation ofthe Decree."

This approach gives the plaintiff class an in-creased protection warranted by recent events withoutunfairly burdening the NYPD. Retention of theGuidelines' "Reservations" paragraph continues toinsulate the NYPD from individual legal actions *419based upon perceived failures to follow the Guidelineswhich do not rise to a constitutional level. Indeed, aswith the present order and judgment, no liability onthe part of the NYPD under a further revised Orderand Judgment and Guidelines will attach unless aconstitutional violation does occur; the effect of therevision is to make a violation of the Constitution acontempt of the Court's order as well. That conse-quence should not unduly trouble the NYPD, which Iwill assume is not engaged in thinking up ways toviolate the Constitution. Moreover, the history of thisclass action, going back to the entry of the first consentdecree in 1985, reflects the parties' understanding thatClass Counsel, not individual plaintiffs, would bringany motion to hold the NYPD in contempt.FNIO

FNlO. Thus Mr. Eisenstein stated at the oralargument:

[O]bviously, the federal rules give every-body the right to try and intervene. But as amatter of the consent decree, class counselwas charged in perpetuity, God help us,with the obligation of monitoring this set-tlement and monitor it we did, Judge, andmonitor it we will.

THE COURT: So here you are.

MR. EISENSTEIN: Here I am.

Tr.18.

At oral argument Corporation Counsel expresseda concern that "if all these guidelines are incorporatedin the decree, although plaintiffs say they wouldn't berunning into court for every little transgression, thereis really no protection for the police department withrespect to that," with the added deleterious effect that"the Court would then become inextricably intert-wined in the day-ta-day operations and decisionmaking on the intelligence division." Tr. 64. I thinkthese concerns are exaggerated. Class Counsel havethroughout this protracted litigation tempered ener-getic advocacy with restraint: a behavioral balancethat does not come naturally to lawyers. Moreover, theStatement of Policy with which the Modified Guide-lines begin, quoted in the margin/Nil makes it clearthat any failure of the NYPD to comply with theGuidelines must rise to a constitutional level in orderto sustain a motion by Class Counsel to hold theNYPD in contempt.

FN11. "STATEMENT OF POLICY: It is thepolicy of the New York City Police De-partment that investigations involving polit-ical activity conform to the guarantees of theConstitution, that care be exercised in theconduct of those investigations so as to pro-tect constitutional rights, and that mattersinvestigated be confined to those supportedby a legitimate law enforcement purpose."

In summary: while I do not decide, one way or theother, whether the "debriefing" procedure describedsupra violated the constitutional rights of any of thearrested demonstrators, the circumstances surround-ing that procedure entitle the plaintiff class, operating



through Class Counsel, to an enhanced level of judi-cial review.FN12

FN12. Class Counsel styled the present mo-tion as one under Rule 59(e), Fed.R.Civ.P., to"alter or amend" the August 8, 2003 Orderand Judgment. Corporation Counsel contendthat the procedural requirements for a motionbased upon Rule 59(e) have not been satis-fied. I do not agree, but in any event it seemsplain that the motion would also properly lieunder Rule 60, captioned "Relief fromJudgment or Order." Rule 60(b )(3) providesfor such relief on the basis of "newly dis-covered evidence," a concept within whichthe "debriefing" procedures fit comfortably,and Rule 60(b)( 6) allows a motion basedupon "any other reason justifying relief fromthe operation of the judgment." The presentmotion is timely under either subsection ofthe Rule.

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

SECOND REVISED ORDER AND JUDGMENTThe Court having entered a Memorandum Opi-

nion and Order dated February *420 11, 2003, re-ported at 2003 U.S. Dist. LEXIS 2134, 2003 WL302258 (S.D.N.Y.2003), stating that the HandschuGuidelines, which form an integral part of the consentdecree previously entered in this case and set forth inan Opinion and Order dated March 7, 1985 and re-ported at 605 F.Supp. 1384 (S.D.N.Y.1985), would bemodified if the New York City Police Department("NYPD") complied with two numbered conditionsset forth in 2003 U.S. Dist. LEXIS 2134 at *63-64,2003 WL 302258, at *21; and the NYPD havingcomplied with those conditions; and the Court beingfully advised in the premises; it is now

ORDERED, ADJUDGED, AND DECREED,that the motion of the NYPD to modify the HandschuGuidelines be, and the same hereby is, granted; and itis further

ORDERED, ADJUDGED, AND DECREED,that the Handschu Guidelines are modified in such amanner as to confonn to the text appearing in Ap-pendix "A" of the Court's Memorandum and Order ofFebruary 11,2003; and it is further

ORDERED, ADJUDGED, AND DECREED,that the Guidelines for Investigations Involving Po-litical Activity appearing in Exhibit "A" to the decla-ration of Deputy Chief Edwin A. Young dated March20, 2003, remain in the NYPD Patrol Guide unlessotherwise directed by the Court; and it is further

ORDERED, ADJUDGED, AND DECREED,that the Guidelines for Investigations Involving Po-litical Activity referred to in the preceding paragraphof this Second Revised Order and Judgment havingdeclared in their Statement of Policy that such inves-tigations are to conform to the guarantees of the Con-stitution of the United States, and in order to clarifyand enhance the standing and authority of counsel forthe plaintiff class to contend, if so advised, that viola-tions of the said Guidelines have deprived a memberor members of the plaintiff class of rights or freedomsguaranteed to them by the Constitution, the saidGuidelines are, to that extent and for that purpose,incorporated by reference into and made a part of thisSecond Revised Order and Judgment; and it is further

ORDERED, ADJUDGED, AND DECREED,that the Revised Order and Judgment entered on April4, 2003 be, and the same hereby is, wholly vacated,replaced, and superseded by this Second RevisedOrder and Judgment.

APPENDIX A TO SECOND REVISED ORDERAND JUDGMENT

GUIDELINES FOR INVESTIGATIONS IN-VOLVING POLITICAL ACTIVITY

PREAMBLESubsequent to the terrorist attacks on the City of

New York on September 11,2001 which resulted inthe loss of thousands of lives and the total destructionof the World Trade Center complex, it became ap-parent that the City faces unprecedented threats to itscontinued safety and security. In the view of federal,state and local law enforcement agencies, the preven-tion of future attacks requires the development ofintelligence and the investigation of potential terroristactivity before a unlawful act occurs.

As a result of a federal court order entered in1985, the New York City Police Department wasbound by guidelines, known as the Handschu Guide-lines, which governed the investigation of politicalactivity. The Handschu Guidelines (i) limited the



investigation of political activity to those circums-tances when there was specific information of crimi-nal activity and (ii) *421 established the HandschuAuthority to oversee compliance.

After evaluating the impact of the HandschuGuidelines on the need to investigate tenorism in achanged world, the City made an application to mod-ify the order so as to eliminate the restrictions con-tained in the Handschu Guidelines and the oversight ofthe Handschu Authority with respect to those restric-tions. The City did not seek to eliminate the HandschuAuthority's role to investigate an individual's com-plaint that the NYPD had engaged in unconstitutionalconduct in the investigation of political activity.

The Court granted the City's application to mod-ify the decree provided the City adopt the internalguidelines set forth below and distribute the guidelinesto supervisory personnel who, in turn, were to makethem known to those under their command. Theseguidelines shall remain in effect unless otherwiseordered by the Court.

These guidelines are binding on all members ofthe service who are engaged in the investigation ofpolitical activity. It is the purpose of these guidelinesto enable officers to perform their duties with greatercertainty, confidence and effectiveness while at thesame time protecting the guarantees of the Constitu-tion.

I. STATEMENT OF POLICYIt is the policy of the New York City Police De-

partment that investigations involving political activ-ity conform to the guarantees of the Constitution, thatcare be exercised in the conduct of those investiga-tions so as to protect constitutional rights, and thatmatters investigated be confined to those supported bya legitimate law enforcement purpose.

II. GENERAL PRINCIPLES(1) In its effort to anticipate or prevent unlawful

activity, including terrorist acts, the NYPD must, attimes, initiate investigations in advance of unlawfulconduct. It is important that such investigations not bebased solely on activities protected by the FirstAmendment. When, however, statements advocateunlawful activity, or indicate an apparent intent toengage in unlawful conduct, particularly acts of vi-olence, an investigation under these guidelines may be

warranted, unless it is apparent, from the circums-tances or the context in which the statements aremade, that there is no prospect ofhann.

(2) Based upon the circumstances of a given case,investigative action may be required under exigentcircumstances. Exigent circumstances are circums-tances requiring action before authorization otherwisenecessary under these guidelines can reasonably beobtained, in order to protect life or substantial propertyinterests; to apprehend or identify a fleeing offender;to prevent the hiding, destruction or alteration ofevidence; or to avoid other serious impairment orhindrance of an investigation. When any investigativeaction, taken under exigent circumstances, wouldrequire an approval under ordinary conditions, suchapproval shall be obtained as soon as practicable inaccordance with the provisions of these guidelines.Where a regular approval or request is required to bein writing, the approval or request following exigentcircumstances shall also be in writing.

(3) Investigations shall be terminated when alllogical leads have been exhausted and no legitimatelaw enforcement purpose justifies their continuance.

III. APPLICABILITYThese guidelines apply only to investigations

which involve political activity. They *422 do notapply to, or limit, other activities of the NYPD in theinvestigation or detection of unlawful conduct, thepreservation of the peace and public safety or otherlegitimate law enforcement activities which do notinvolve political activity.

IV. ROLE OF THE INTELLIGENCE DIVISION(1) Investigation of political activity shall be in-

itiated by, and conducted under the supervision of theIntelligence Division. Nothing in this paragraph,however, is intended to prevent any member of theservice from reporting his or her observations of sus-picious conduct which involves political activity to hisor her commanding officer or to the Intelligence Di-vision.

(2) The Deputy Commissioner of Intelligenceshall periodically inform and advise the Police Com-missioner concerning the status of any investigationsconducted pursuant to these guidelines.

V. LEVELS OF INVESTIGATION



These guidelines provide for three levels of in-vestigative activity. They are intended to provide theNYPD with the necessary flexibility to act well inadvance of the commission of plmmed terrorist acts orother unlawful activity. However, if the availableinformation shows at the outset that the thresholdstandard for a preliminary inquiry or full investigationis satisfied, then the appropriate investigative activitymay be initiated immediately, without progressingthrough more limited investigative stages.

A. CHECKING OF LEADSThe lowest level of investigative activity is the

"prompt and extremely limited checking out of initialleads," which should be undertaken whenever infor-mation is received of such a nature that some fol-low-up as to the possibility of unlawful activity iswarranted. This limited activity should be conductedwith an eye toward promptly determining whetherfurther investigation (either a preliminary inquiry or afull investigation) should be conducted.

B. PRELIMINARY INQUIRIES(1) In cases where the NYPD receives informa-

tion or an allegation not warranting an investiga-tion-because there is not yet a "reasonable indication"of unlawful activity-but whose responsible handlingrequires some further scrutiny beyond the prompt andextremely limited checking out of initial leads, theNYPD may initiate an "inquiry" in response to theallegation or information indicating the possibility ofunlawful activity. Whether it is appropriate to open apreliminary inquiry immediately, or instead to engagefirst in a limited checking out of leads, depends on thecircumstances presented.

Example: If the NYPD receives an allegation thatan individual or group has advocated the commissionof violence, and no other facts are available, an ap-propriate first step would be checking out of leads todetermine whether the individual, group, or membersof the audience have the apparent ability or intent tocarry out the advocated unlawful act.

(2) The authority to conduct inquiries short of ainvestigation allows the NYPD to respond in a meas-ured way to ambiguous or incomplete information,with as little intrusion as the needs of the situationpermit. This is especially important in such areas aswhere there is no complainant involved or when anallegation or information is received from a source of

unknown reliability. Such inquiries are subject to thelimitations on duration under paragraph (4) below andare carried out to obtain the information necessary to*423 make an informed judgment as to whether a fullinvestigation is warranted.

Example: Officers are not required to possessinformation relating to an individual's intended un-lawful use of dangerous biological agents or toxinsprior to initiating investigative activity. If an individ-ual or group has attempted to obtain such materials, orhas indicated a desire to acquire them, and the reasonis not apparent, investigative action, such as con-ducting a checking out of leads or initiating a pre-liminary inquiry, may be appropriate to determinewhether there is a legitimate purpose for the posses-sion of the materials by the individual or group.

A preliminary inquiry is not a required step whenfacts or circumstances reasonably indicating unlawfulactivity are already available. In such cases, a fullinvestigation can be inunediately opened.

(3) A preliminary inquiry may be authorized bythe Commanding Officer or Executive Officer of theIntelligence Division or the Conunanding Officer ofthe Criminal Intelligence Section ("the AuthorizingOfficials"). The Authorizing Official must assure thatthe allegation or other information which warrantedthe inquiry has been recorded in writing. Upon suchauthorization a notification must be made for finalapproval by the Deputy Commissioner ofIntelligence.

(4) Inquiries shall be completed within 180 daysafter initiation of the first investigative step. The dateof the first investigative step is not necessarily thesame date on which the first incoming information orallegation was received. An extension of time in aninquiry for succeeding 90 day periods may be grantedby the Deputy Commissioner of Intelligence. Anysuch request for extension shall be in writing and shallinclude a statement of the reasons why further inves-tigative steps are warranted when there is no reason-able indication of unlawful activity. The action takenon any such request for extension shall also be rec-orded in writing.

(5) All lawful investigative techniques, includingthe use of undercover operations and the developmentof sources and informants may be used in an inquiryexcept:



(a) Mail openings; and

(b) Eavesdropping and Video Surveillance asthose terms are defined in Article 700 of the NewYork State Criminal Procedure Law.

(6) The following investigative techniques maybe used in an inquiry without any prior authorizationfrom a supervisor:

(a) Examination of NYPD indices and files;

(b) Examination of records available to the publicand other public sources of information;

(c) Examination of available federal, state andlocal government records;

(d) Interview of complainant, previously estab-lished informants, and other sources of information;

(e) Interview of the potential subj ect;

(f) Interview of persons who should readily beable to corroborate or deny the truth of the allegation,except this does not include pretext interviews orinterviews of a potential subject's employer or co-workers unless the interviewee was the complainant;and

(g) Physical, photographic or video surveillanceof any person, provided that such surveillance doesnot require a warrant.

The use of any other lawful investigative tech-nique that is permitted in an inquiry shall meet therequirements and limitations of Part VI and, except inexigent circumstances, requires prior approval by asupervisor.

*424 (7) Where a preliminary inquiry fails todisclose sufficient information to justify an investiga-tion, the NYPD shall terminate the inquiry and make arecord of the closing.

(8) All requirements regarding inquiries shallapply to reopened inquiries.

C. INVESTIGATIONA full investigation may be initiated when facts or

circumstances reasonably indicate that unlawful acthas been, is being, or will be committed. A full in-vestigation may be conducted to prevent, solve orprosecute such unlawful activity.

(1) The standard of "reasonable indication" issubstantially lower than probable cause. In determin-ing whether there is reasonable indication of an un-lawful act an investigator may take into account anyfacts or circumstances that a prudent investigatorwould consider. However, the standard does requirespecific facts or circumstances indicating a past, cur-rent, or future violation. There must be an objective,factual basis for initiating the investigation; a merehunch is insufficient.

(2) Where a unlawful act may be committed in thefuture, preparation for that act can be a current viola-tion of the conspiracy or attempt provisions of statelaw. The standard for opening an investigation issatisfied where there is not yet a current substantive orpreparatory unlawful act, but facts or circumstancesreasonably indicate that such unlawful conduct willoccur in the future.

(3) Any lawful investigative technique may beused in a full investigation, subject to the requirementsand limitations of Part VI hereof.

(4) Authorization and Renewal

a. A full investigation may be authorized by theCommanding Officer or Executive Officer of theIntelligence Division or the Commanding Officer ofthe Criminal Intelligence Section ("the AuthorizingOfficials") upon a written recommendation settingforth the facts or circumstances reasonably indicatingthat an unlawful act has been, is being or will becommitted, Upon such authorization a notificationmust be made for final approval by the DeputyCommissioner of Intelligence. When exigent cir-cumstances exist, as described in Section V(B)(6) ofthese guidelines, a full investigation may be com-menced upon the verbal authorization of an Autho-rizing Official. However, in such cases, the requiredwritten recommendation must be submitted as soon aspracticable.

b. A full investigation may be initially authorized



for a period of up to a year. An investigation may becontinued upon renewed authorization for additionalperiods each not to exceed a year. Renewal authori-zation shall be obtained from the Deputy Commis-sioner of Intelligence. All requests for renewal autho-rization, and action thereon, shall be in writing.

c. Authorizations shall be reviewed by an Autho-rizing Official before the expiration of the period forwhich the investigation and each renewal thereof isauthorized.

(5) An investigation which has been terminatedmay be reopened upon a showing of the same standardand pursuant to the same procedures as required forinitiation of an investigation. All requirements re-garding investigations shall apply to reopened inves-tigations.

D. TERRORISM ENTERPRISE INVESTIGA-TION

A terrorism enterprise investigation is a full in-vestigation but differs from a general investigation ofunlawful conduct in several *425 important respects.As a general rule, an investigation of a completedunlawful act is normally confined to determining whocommitted that act and securing evidence to establishthe elements of the particular offense. It is, in thisrespect, self-defining. A terrorism enterprise investi-gation must determine the identity and nature of theindividual, group, or organization involved, its geo-graphic dimensions, its past acts and intended goals,including unlawful goals, and its capacity for hann,among other factors. While a standard investigation ofunlawful conduct tenninates with the decision toprosecute or not to prosecute, a terrorism enterpriseinvestigation does not necessarily end, even thoughone or more of the participants may have been pros-ecuted.

In addition, groups and organizations provide alife and continuity of operation not normally found inother types of unlawful activity. As a consequence,these investigations may continue for several years.Furthermore, the focus of such investigations may beless precise than that directed against more conven-tional types of unlawful conduct. Unlike the usual caseinvolving unlawful conduct, there may be no com-pleted offense to provide a framework for the inves-tigation. It often requires the fitting together of bitsand pieces of information, many meaningless by

themselves, to determine whether a pattern of un-lawful activity exists. For this reason, such investiga-tions are broader and less discriminate than usual,involving the interrelation of various sources andtypes of information.

This section focuses on investigations of enter-prises that seek to further political or social goalsthrough activities that involve force or violence, orthat otherwise aim to engage in terrorism or terror-ism-related crimes. It authorizes investigations todetermine the structure and scope of the enterprise aswell as the relationship of the members.

1. General Authoritya. A terrorism enterprise investigation may be

initiated when facts or circumstances reasonably in-dicate that two or more persons are engaged in anenterprise for the purpose of (i) furthering political orsocial goals wholly or in part through activities thatinvolve force, violence or other unlawful acts; (ii)engaging in terrorism as defined in N.Y. Penal Law §490.05, or (iii) conunitting any offense described inN.Y. Penal Law §§ 490.10,490.15,490.20,490.25,490.30, or 490.35, or other related statutes currently ineffect or subsequently enacted. The standard of "rea-sonable indication" is identical to that governing fullinvestigations generally. In determining whether aninvestigation should be conducted, the NYPD shallconsider all of the circumstances including: (i) themagnitude of the threatened harm; (ii) the likelihoodthat it will occur; (iii) the immediacy of the threat; and(iv) any danger to privacy or free expression posed byan investigation. In practical terms, the "reasonableindication" standard for opening a terrorism enterpriseinvestigation could be satisfied in a number of ways.

Example: Direct information about statementsmade in furtherance of an enterprise's objectiveswhich show a purpose of committing crimes describedin N.Y. Penal Law §§ 490.10,490.15,490.20,490.25,490.30, 490.35 or other related statutes currently ineffect or subsequently enacted, would satisfy thethreshold,

Example: Activities such as attempting to obtaindangerous biological agents, toxic chemicals, or nuc-lear materials, or stockpiling explosives or weapons,with no discernible lawful purpose, may be sufficientto reasonably indicate that an enterprise aims to en-gage in terrorism.



*426 b. While no particular factor or combinationof factors is required, considerations that will gener-ally be relevant to the determination whether thethreshold standard for a terrorism enterprise investi-gation is satisfied include, as noted, a group's state-ments, its activities, and the nature of potential un-lawful acts suggested by the statements or activities.Thus, where there are grounds for inquiry concerninga group, it may be helpful to gather information aboutthese matters, and then to consider whether thesefactors, either individually or in combination, rea-sonably indicate that the group is pursuing terroristactivities or objectives as defined in the thresholdstandard. Findings that would weigh in favor of such aconclusion include, for example, the following:

(1) Threats or advocacy of violence or othercovered unlawful acts. Statements are made in relationto or in furtherance of an enterprise's political or socialobjectives that threaten or advocate the use of force orviolence, or statements are made in furtherance of anenterprise that otherwise threaten or advocate unlaw-ful conduct within the scope of N.Y. Penal Law §§490.10, 490.15, 490.20, 490.25, 490.30, 490.35, orother related statutes currently in effect or subse-quently enacted which may concern such matters as(e.g.):

(i) engaging in attacks involving or threateningmassive loss of life or injury, mass destruction, orendangerment of the national security;

(ii) killing or injuring public officials, or de-stroying public facilities, or defying lawful authority;

(iii) killing, injuring or intimidating individualsbecause of their status as United States nationals orpersons, or because of their national origin, race, col-or, religion or sex; or

(iv) depriving individuals of any rights secured bythe Constitution or laws of the United States or theState of New York.

(2) Apparent ability or intent to cany out violenceor other covered activities. The enterprise manifestsan apparent ability or intent to carry out violence orother activities within the scope ofN.Y. Penal Law §§490.10, 490.15, 490.20, 490.25, 490.30, 490.35 or

other related statutes currently in effect or subse-quently enacted, e.g.:

(i) by acquiring or taking steps towards acquiring,biological agents or toxins, toxic chemicals or theirprecursors, radiological or nuclear materials, explo-sives or other destructive or dangerous material (orplans or fonnulas for such materials), or weapons,under circumstances where, by reason of the quantityor character of the items, the lawful purpose of theacquisition is not apparent;

(ii) by the creation, maintenance, or support of anarmed paramilitary organization;

(iii) by paramilitary training; or

(iv) by other conduct demonstrating an apparentability or intent to injure or intimidate individuals, orto interfere with the exercise of their constitutional orstatutory rights.

(3) Potential Unlawful Act. The group's state-ments or activities suggest potential unlawful acts thatmay be relevant in applying the standard for initiatinga terrorism enterprise investigation-such as crimesunder the provisions of the N.Y. Penal Law that setforth specially defined terrorism or support of terror-ism offenses, or that relate to such matters as aircrafthijacking or destruction, attacks on transportation,communications, or energy facilities or systems, bio-logical or chemical weapons, nuclear or radiologicalmaterials, assassinations or other violence againstpublic officials or facilities, or explosives.

*427 c. Mere speculation that force or violencemight occur during the course of an otherwisepeaceable demonstration is not sufficient grounds forinitiation of an investigation under this Subpart. Butwhere facts or circumstances reasonably indicate thatan individual or group has engaged or aims to engagein conduct described in paragraph I.a, above in ademonstration, an investigation may be initiated inconformity with the standards of that paragraph. Thisdoes not limit the collection of information aboutpublic demonstrations by individuals or groups thatare under active investigation pursuant to paragraphLa, above or any other provisions of these guidelines.

2. Purpose



The immediate purpose of a terrorism enterpriseinvestigation is to obtain information concerning thenature and structure of the enterprise as specificallydelineated in paragraph (3) below, with a view to thelonger range objectives of detection, prevention, andprosecution of the unlawful activities of the enterprise.

3.Scopea. A terrorism enterprise investigation initiated

under these guidelines may collect such informationas:

(i) the identity and nature of an individual orgroup and its members, their associates, and otherpersons likely to be acting in furtherance of its un-lawful objectives, provided that the information con-cerns such persons' activities on behalf of or in fur-therance of the suspected unlawful activity of theindividual, group, or organization;

(ii) the finances of the individual, group, or or-ganization;

(iii) the geographical dimensions of the individ-ual, group, or organization; and

(iv) past and future activities and goals of the in-dividual, group, or organization.

b. In obtaining the foregoing information, anylawful investigative technique may be used in accor-dance with the requirements of these guidelines.

4. Authorization and Renewala. A terrorism enterprise investigation may be

authorized by the Commanding Officer or ExecutiveOfficer of the Intelligence Division or the Com-manding Officer of the Criminal Intelligence Section("the Authorizing Officials"), upon a written recom-mendation setting forth the facts or circumstancesreasonably indicating the existence of an enterprise asdescribed in paragraph La, above. Upon such autho-rization a notification must be made for final approvalby the Deputy Commissioner of Intelligence. Whenexigent circumstances exist, as described in theseguidelines, a terrorism enterprise investigation may becommenced upon the verbal authorization of an Au-thorizing Official. However, in such cases, the re-quired written recommendation must be submitted assoon as practicable.

b. A terrorism enterprise investigation may beinitially authorized for a period of up to a year. Aninvestigation may be continued upon renewed autho-rization for additional periods each not to exceed ayear. Renewal authorization shall be obtained from theDeputy Commissioner of Intelligence. The request forrenewal and action thereon shall be in writing.

c. Authorizations shall be reviewed by an Autho-rizing Official before the expiration of the period forwhich the investigation and each renewal thereof isauthorized. In some cases, the enterprise may meet thethreshold standard but be temporarily inactive in thesense that it has not engaged in recent acts of violenceor other unlawful activities as described in La., nor*428 is there any immediate threat of harm-yet thecomposition, goals and prior history of the groupsuggest the need for continuing law enforcement in-terest. The investigation may be continued in suchcases with whatever scope is warranted in light ofthese considerations.

d. An investigation which has been terminatedmay be reopened upon a showing of the same standardand pursuant to the same procedures as required forinitiation of an investigation.

VI. INVESTIGATIVE TECHNIQUES(1) When conducting investigations under these

guidelines, the NYPD may use any lawful investiga-tive technique permitted by these guidelines. Thechoice of investigative techniques is a matter ofjudgment, which should take account of:

(i) the objectives of the investigation and availa-ble investigative resources;

(ii) the intrusiveness of a technique, consideringsuch factors as the effect on the privacy of individualsand potential damage to reputation;

(iii) the seriousness of the unlawful act; and

(iv) the strength of the information indicating itsexistence or future commission of the unlawful act.

(2) Where the conduct of an investigationpresents a choice between the use of more or lessintrusive methods, the NYPD should consider whether



the information could be obtained in a timely andeffective way by the less intrusive means. The NYPDshould not hesitate to use any lawful techniques con-sistent with these guidelines in an investigation, evenif intrusive, where the intrusiveness is warranted inlight of the seriousness of the crime or the strength ofthe information indicating its existence or futurecommission. This point is to be particularly observedin investigations relating to terrorist activities.

(3) Authorized methods in investigations include,among others, use of confidential informants, under-cover activities and operations, eavesdropping andvideo surveillance (as defined in Article 700 of theN.Y. Criminal Procedure Law), pen registers and trapand trace devices, consensual electronic monitoring,and searches and seizures.

a. Undercover Operations(i) Undercover operations, including confidential

informants, may be used when such operations are themost effective means of obtaining information, takinginto account all the circumstances of the investigation,including the need for the information and the se-riousness of the threat. The use of undereovers andconfidential informants must be authorized by theDeputy Commissioner of the Intelligence Divisionprior to commencement of the undercover operation.The request to use undereovers or confidential infor-mants and action taken on the request must be inwriting and must include a description of the facts onwhich the investigation is based and the role of theundercover.

(ii) The use of an undercover or confidential in-formant will be approved for a period of 120 days andmay be extended for additional periods of 120 dayswith the approval of the Deputy Commissioner of theIntelligence Division. Such extensions may be ap-proved for as long as the investigation continues andthe use of the undercover is the most effective meansof obtaining information. The request to extend theuse of undereovers and action taken on the requestmust be in writing and must include the reason for theextension.

*429 (iii) Undereovers are strictly prohibitedfrom engaging in any conduct the sole purpose ofwhich is to disrupt the lawful exercise of politicalactivity, from instigating unlawful acts or engaging inunlawful or unauthorized investigative activities.

b. Eavesdropping and Video Surveillance (as de-fined in Article 700 of the N.Y. Criminal ProcedureLaw), Pen Registers and Trap and Trace Devices, andConsensual Electronic Monitoring-All requirementsfor the use of such methods under the Constitution,applicable statutes, and NYPD regulations or policiesmust be observed.

(4) Whenever an individual is known to berepresented by counsel in a particular matter, theNYPD shall follow applicable law and Departmentprocedure concerning contact with represented indi-viduals in the absence of prior notice to their counsel.

VII. DISSEMINATION AND MAINTENANCE OFINFORMATION

A. The NYPD may disseminate information ob-tained during the checking of leads, preliminary in-quiries and investigations conducted pursuant to theseguidelines to federal, state or local law enforcementagencies, or local criminal justice agencies when suchinformation:

(i) falls within the investigative or protective ju-risdiction or litigative responsibility of the agency;

(ii) may assist in preventing an unlawful act or theuse of violence or any other conduct dangerous tohuman life;

(iii) is required to be disseminated by interagencyagreement, statute, or other law.

B. All documentation required under theseGuidelines shall be maintained by the IntelligenceDivision in accordance with general police departmentpractice and applicable municipal record retention anddestruction rules, regulations and procedures. Underthese rules and practices documents are retained for noless than five years.

VIII. COUNTERTERRORISM ACTIVITIES ANDOTHER AUTHORIZATIONS

In order to carry out its mission of preventing thecommission of terrorist acts in or affecting the City ofNew York and the United States and its people, theNYPD must proactively draw on available sources ofinformation to identify terrorist threats and activities.It cannot be content to wait for leads to come in



through the actions of others, but rather must be vigi-lant in detecting terrorist activities to the full extentpermitted by law, with an eye towards early interven-tion and prevention of acts of terrorism before theyoccur. This Part accordingly identifies a number ofauthorized activities which further this end, and whichcan be carried out even in the absence of a checking ofleads, preliminary inquiry, or full investigation asdescribed in these guidelines. The authorizations in-clude both activities that are specifically focused onterrorism and activities that are useful for law en-forcement purposes in both terrorism andnon-terrorism contexts. The authorized law enforce-ment activities of the NYPD include carrying out andretaining information resulting from the followingactivities.

A. COUNTERTERRORISM ACTIVITIES

1. Information Systems

The NYPD is authorized to operate and partici-pate in identification, tracking, and information sys-tems for the purpose of identifying and locating po-tential terrorists *430 and supporters of terrorist ac-tivity, assessing and responding to terrorist risks andthreats, or otherwise detecting, prosecuting, or pre-venting terrorist activities. Systems within the scopeof this paragraph may draw on and retain pertinentinformation from any source permitted by law, in-cluding information derived from past or ongoinginvestigative activities; other information collected orprovided by governmental entities, such as foreignintelligence information and lookout list information;publicly available information, whether obtained di-rectly or through services or resources (whether non-profit or commercial) that compile or analyze suchinformation; and information voluntarily provided byprivate entities. Any such system operated by theNYPD shall be reviewed periodically for compliancewith all applicable statutory provisions and Depart-ment regulations and policies.

2. Visiting Public Places and EventsFor the purpose of detecting or preventing ter-

rorist activities, the NYPD is authorized to visit anyplace and attend any event that is open to the public,on the same terms and conditions as members of thepublic generally. No information obtained from suchvisits shall be retained unless it relates to potentialunlawful or terrorist activity.

B. OTHER AUTHORIZATIONS

1. General Topical Research

The NYPD is authorized to carry out generaltopical research, including conducting online searchesand accessing online sites and forums as part of suchresearch on the same terms and conditions as membersof the public generally. "General topical research"under this paragraph means research concerning sub-ject areas that are relevant for the purpose of facili-tating or supporting the discharge of investigativeresponsibilities. Itdoes not include online searches forinformation by individuals' names or other individualidentifiers, except where such searches are incidentalto topical research, such as searching to locate writ-ings on a topic by searching under the names of au-thors who write on the topic, or searching by the nameof a party to a case in conducting legal research.

2. Use of Online Resources GenerallyFor the purpose of developing intelligence in-

formation to detect or prevent terrorism or other un-lawful activities, the NYPD is authorized to conductonline search activity and to access online sites andforums on the same terms and conditions as membersof the public generally.

3. Reports and AssessmentsThe NYPD is authorized to prepare general re-

ports and assessments concerning terrorism or otherunlawful activities for purposes of strategic or opera-tional planning or in support of other legitimate lawenforcement activities.

IX. PROTECTION OF PRIVACY AND OTHERLIMITATIONS

A. General LimitationsThe law enforcement activities authorized by this

Pmi do not include maintaining files on individualssolely for the purpose of monitoring activities pro-tected by the First Amendment or the lawful exerciseof any other rights secured by the Constitution or lawsof the United States. Rather, all such law enforcementactivities must have a valid law enforcement purposeand must be carried out in conformity with all appli-cable statutes and Department regulations and poli-cies.



*431 B. Construction of PartThis Part does not limit any activities authorized

by or carried out under other Parts of these guidelines.The specification of authorized law enforcement ac-tivities under this Part is not exhaustive, and does notlimit other authorized law enforcement activities ofthe NYPD.

X.RESERVATIONNothing in these guidelines shall limit the general

reviews or audits of papers, files, contracts, or otherrecords in the possession of the NYPD or City of NewYork, or the performance of similar services at thespecific request of another government agency. Suchreviews, audits, or similar services must be for thepurpose of detecting or preventing violations of lawwhich are within the investigative responsibility of theNYPD.

Nothing in these guidelines is intended to limitthe NYPD's responsibilities to investigate certainapplicants and employees, or to pursue efforts to sa-tisfy any other of its legal rights, privileges, or obli-gations.

These guidelines are set forth solely for the pur-pose of intemal NYPD guidance. They are not in-tended to, do not, and may not be relied upon to createany rights, substantive or procedural, enforceable atlaw by any party in any matter, civil or criminal, nordo they place any limitation on otherwise lawful in-vestigative and litigative prerogatives of the NYPD orCity of New York.

S.D.N.Y.,2003.Handschu v. Special Services Div.288 F.Supp.2d 411

END OF DOCUMENT


o¡>!n/{)/j wê[email protected]/08/06 · (s.d.n.y.1985), affd., 787 f.2d 828 (2d cir.1986). that...

Documents