New Rules Guard Against Unconstitutional Police Surveillance

March 21, 2017

NEW YORKThe second of two federal judges has approved a settlement with the New York City Police Department that protects New York Muslims and others from discriminatory and unjustified surveillance.

The new rules govern when and how investigations are conducted, and provide for an independent civilian representative inside the NYPD who will act as a check against surveillance abuses.

The settlement was reached in two federal lawsuits, Raza v. City of New York and Handschu v. Special Services Division, and had to be approved by the judges in both cases.

A previous version of the settlement was announced in January 2016. In October, the judge in the Handschu case, Charles S. Haight Jr., praised the overall agreement but said that additional safeguards for the civilian representative were needed. The parties submitted a revised settlement on March 6, which Judge Haight approved a week later, putting the rules into effect. Last night, the judge in the Raza case, Pamela Chen, also approved the agreement, ending the Raza lawsuit.

Raza was brought in June 2013 by the American Civil Liberties Union, the Creating Law Enforcement Accountability & Responsibility (CLEAR) project of Main Street Legal Services at CUNY School of Law, the New York Civil Liberties Union, and the law firm Morrison & Foerster LLP. The case was filed on behalf of religious and community leaders, mosques, and a charitable organization alleging they were swept up in the NYPD’s dragnet surveillance of Muslims. The suit charged that the NYPD violated the U.S. and New York State Constitutions by singling out and stigmatizing entire communities of New Yorkers based on their religion. The case sought systemic reforms to prevent law enforcement abuses.

Separately in 2013, lawyers in the Handschu case, including the NYCLU, filed papers arguing that the NYPD’s investigations of Muslims violated a long-standing consent decree in that case, which was a class action to protect New Yorkers’ lawful political and religious activities from unwarranted NYPD surveillance.

“We and our clients are very pleased that the courts have approved this groundbreaking settlement,” said the attorneys for the Raza case plaintiffs in a statement. “Now, New York Muslims and all New Yorkers will have strong protections from unconstitutional religious profiling and surveillance. This agreement sends a critical message to the federal government and police forces around the country that law enforcement can and must do its job without resorting to discrimination.”

The settlement includes these provisions:

  • Prohibiting investigations in which race, religion, ethnicity, or national origin is a substantial or motivating factor.
  • Requiring articulable and factual information regarding possible unlawful activity before the NYPD can launch a preliminary investigation into political or religious activity.
  • Requiring the NYPD to account for the potential effect of investigative techniques on constitutionally protected activities such as religious worship and political meetings.
  • Limiting the NYPD’s use of undercover and confidential informants to situations in which the information sought cannot reasonably be obtained in a timely and effective way by less intrusive means.
  • Putting an end to open-ended investigations by imposing presumptive time limits and requiring reviews of ongoing investigations every six months.
  • Installing a civilian representative within the NYPD with the power and obligation to ensure all safeguards are followed and to serve as a check on investigations directed at political and religious activities. The civilian representative must record and report any violations to the police commissioner, who must investigate violations and report back to the civilian representative. If violations are systematic, the civilian representative must report them directly to the judge in the Handschu case.
  • Removing from the NYPD website the discredited and unscientific Radicalization in the West report, which justified discriminatory surveillance, and affirming that the report is not and will not be relied upon to open or prolong NYPD investigations.
  • The civilian representative is empowered to report to the court at any time if there are violations of the Handschu guidelines, is required to report to the court if there are systematic violations, and is required to report to the court on an annual basis.
  • The mayor is prohibited from abolishing the civilian representative position without judicial approval, and abolition by order of the court is only permitted if there have not been systemic violations for a period of three years.
  • The civilian representative is specifically authorized to review not just the opening or extension of investigations, but also how they are conducted. In addition, the civilian representative is specifically authorized to review the propriety of the use or extension of use of undercover officers or confidential informants.

The plaintiffs in the Raza case in addition to Imam Raza are Asad Dandia, Masjid Al-Ansar mosque, the charity Muslims Giving Back, Masjid At-Taqwa mosque, and Mohammad Elshinawy.

In addition to Hina Shamsi, Ramzi Kassem, and Art Eisenberg, lawyers on the Raza case include Ashley Gorski and Patrick Toomey of the ACLU, Naz Ahmad and Tarek Z. Ismail of CLEAR, Beth Haroules of the NYCLU, Hector Gallegos, Kyle Mooney, and Adam Hunt of Morrison & Foerster LLP.

A comparison document filed in the Raza case showing changes to the 2003 Handschu guidelines based on today’s agreement is here:
https://www.aclu.org/NYPD-revised-agreement-2003-2017

A document filed in the Handschu case explaining the changes to the guidelines is here:
https://www.aclu.org/NYPD-Handschu-declaration

More information on the case and plaintiffs is here:
https://www.aclu.org/cases/raza-v-city-new-york-legal-challenge-nypd-muslim-surveillance-program

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