February 3, 2006
Surveillance Prompts a Suit: Police v. Police
By JIM DWYER
The demonstrators arrived angry, departed furious. The police had herded them into pens. Stopped them from handing out fliers. Threatened them with arrest for standing on public sidewalks. Made notes on which politicians they cheered and which ones they razzed.
Meanwhile, officers from a special unit videotaped their faces, evoking for one demonstrator the unblinking eye of George Orwell’s “1984.”
“That’s Big Brother watching you,” the demonstrator, Walter Liddy, said in a deposition.
Mr. Liddy’s complaint about police tactics, while hardly novel from a big-city protester, stands out because of his job: He is a New York City police officer. The rallies he attended were organized in the summer of 2004 by his union, the Patrolmen’s Benevolent Association, to protest the pace of contract talks with the city.
Now the officers, through their union, are suing the city, charging that the police procedures at their demonstrations — many of them routinely used at war protests, antipoverty marches and mass bike rides — were so heavy-handed and intimidating that their First Amendment rights were violated.
A lawyer for the city said the police union members were treated no differently than hundreds of thousands of people at other gatherings, with public safety and free speech both protected. The department observes all constitutional requirements, the city maintains.
The lawsuit by the police union brings a distinctive voice to the charged debate over how the city has monitored political protest since Sept. 11. The off-duty officers faced a “constant threat of arrest,” Officer Liddy testified, all but echoing the complaint by activists for other causes that the city has effectively “criminalized dissent.”
The lawsuit is one of three recent legal actions in which the city has been accused of abuses of power that the plainpngs say crimped free expression, a charge that officials say is belied by the reality of noisy sidewalks and streets, crammed year-round with parades and rallies.
At the core of all three cases are questions about the expanded powers the police were granted after the 2001 attacks, and how much the department needs to know about the politics of people who are expressing their views.
In 2003, a federal judge eased longstanding and strict limits on surveillance of political activity at the request of lawyers from the city’s corporation counsel office, who argued that the Police Department needed broader authority to use such tactics to fight terrorism.
Since then, police officers in disguise have taken part in demonstrations, an approach the Police Department says it used before receiving the expanded powers; other officers have made hundreds of hours of videotapes of people involved in protests and rallies, very few of whom were charged with breaking any law. Neither form of surveillance, the city argues, violates the Constitution.
The three pending cases — two of them brought by civil liberties lawyers and the third by the police union — are the first to demand judicial scrutiny of those tactics.
Among those three, the police union was the earliest to challenge the city, and its case has the most striking dynamic: the very people asked to fight terrorism are claiming that the city’s new antiterrorism tools have been bluntly and illegally applied to the exercise of their own civil rights.
“It puts the whole issue into stark relief,” said Elizabeth McNamara, a lawyer who represents the P.B.A. and other unions in the suit.
In July and August 2004, a few dozen off-duty officers — joined at times by firefighters — popped up at places where Mayor Michael R. Bloomberg was scheduled to appear, chanting and handing out leaflets about labor negotiations.
The unions maintain that their demonstrations, in the weeks before the 2004 Republican National Convention opened in New York, embarrassed the mayor just as the national press corps was turning its attention to the city, and that the Police Department responded by cracking down. They are seeking a court declaration that their rights have been violated, as well as damages.
Lawyers for the city say that police union members pestered truck drivers making deliveries, obstructed sidewalks near the mayor’s home, and taunted the mayor’s press secretary by saying they knew where he lived. The Police Department, the city lawyers say, is neutral about political messages and used barricades and other crowd control methods only to protect the rights of the public and to keep order.
However, the police union said it had uncovered evidence that the department took a keen interest in what the demonstrators were saying, not just how they said it.
During a deposition of the chief of department, Joseph Esposito, who is the department’s top uniformed official, Ms. McNamara read parts of a report prepared by the department’s Internal Affairs Bureau, which noted that the protesters included members of the Police and Fire Department unions.
“In Paragraph 4, it says that members of both departments called out to the mayor for pay raises,” Ms. McNamara said, according to the court transcript, “In Paragraph 5, it notes that the protesters clapped and cheered when former Mayor Koch appeared.”
She asked, “What would be the basis for them recording the content of the protesters’ demonstrations?”
Chief Esposito responded, “Just to record what they observed.”
At a hearing in Federal District Court in Manhattan, Ms. McNamara said the videotaping was punitive. “There was no basis whatsoever for employing the Internal Affairs Division to videotape the police officers except as a means of political harassment,” she said. “There wasn’t suspicion of criminal activity.”
Mark Muschenheim, a lawyer for the city, said that Police Commissioner Raymond W. Kelly ordered the videotaping for legitimate reasons. “There were threats made to the mayor’s press secretary during these demonstrations,” Mr. Muschenheim said. “That was a decision made by the police commissioner because the demonstrations were getting out of hand.”
At Chief Esposito’s deposition, Ms. McNamara asked, “Would there be any reason, to your knowledge, for them to be taping the protest to zoom in and individually photograph each officer at the protest?”
“I don’t know,” he replied.
“Do you know any legitimate reason for such documentation of individuals at the protest?” Ms. McNamara asked.
The chief replied, “Document presence for further identification in the event there was misconduct.”
No criminal activity or misconduct was observed at the union demonstrations, Charles Campisi, the chief of the Internal Affairs Bureau, testified, but the videotapes will remain on file. “The purpose of keeping records is to document the observations, what you’ve done,” he said.
In 2003, a federal judge found that the Police Department had scrutinized the beliefs of antiwar protesters without legitimate reason. After antiwar rallies in February and March 2003, 12 people who were arrested said they were questioned on their political thinking by detectives.
Police officials said basic information was needed for a database that would identify centers of protest organization to help deploy officers at future demonstrations. When the practice was made public, Commissioner Kelly said that while he did not know about it, there was nothing unconstitutional about the questioning. Nevertheless, he said the information was not needed.
The dozen people who submitted affidavits said the interrogations went far beyond basics. Among the questions, they said, was whether the country would be better off if Al Gore had been elected, whether they hated President Bush, whether they belonged to other antiwar groups, what schools they attended, and whether they were politically active. The police denied asking those questions.
The judge, Charles S. Haight of Federal District Court in Manhattan, noting that all the protesters gave roughly the same version of events, said he believed that they were telling the truth, even if Commissioner Kelly and his deputy for intelligence, David Cohen, were not aware of the practice.
In the P.B.A.’s lawsuit, now in pretrial proceedings, Ms. McNamara tried to show that it was unusual for the Internal Affairs Bureau to keep an eye on off-duty police officers. If a group of police officers were going to have “a baseball game, would I.A.B. be called in to monitor to see whether they might engage in illegal activity?” Ms. McNamara asked Chief Esposito.
“Generally speaking, no,” he replied.
Asked if Internal Affairs officers with video cameras might intimidate an officer, Chief Esposito said, “I don’t think so.”
However, Joseph Alejandro, a police officer and union official, testified about the videotaping, “It sends a chill down a police officer’s back to think that Internal Affairs would be taping something.”
Although city lawyers have not yet addressed the claims in the union’s lawsuit at any length, they argued in a related case that the police should be allowed to make and keep videotapes of political gatherings. A group of civil rights lawyers charged that such videotaping violated a standing court order that settled a class action lawsuit, known as Handschu, that put limits on police surveillance. Many of those limits were eased in 2003. The city says that nothing in the United States Constitution forbids police videotaping of people in a public place.
“Even if the N.Y.P.D. were to identify the person whose images were captured on videotape, or disseminated the photographs to other police agencies, a constitutional violation has not occurred,” wrote Gail Donoghue, a senior city lawyer.