From: Pamela Kellet <pck2104@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Wed, 08 Feb 2006 16:37:20 -0500

Full Police Lawsuit Article (No sign-in necessary)

Surveillance Prompts a Suit: Police v. Police

By JIM DWYER
Published: February 3, 2006

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 plaintiffs 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.


Pamela Kellet


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