Volume 78 - Number 28 / December 10 - 16, 2008
West and East Village, Chelsea, Soho, Noho, Little Italy, Chinatown and Lower East Side, Since 1933

A sneaky move on Handschu case by city eludes surveillance

By Casey Samulski

Martin Stolar called it “putting us through hoops for the past year and a half.”

That was the only way he could describe the legal battle he’s been engaged in, one that finds its origins back in the 1971 Handschu agreement.

Stolar’s outrage comes in response to a recent revelation that the New York Police Department had given up Interim Order 47 and instated another, Order 22, in compliance with the original ruling. Yet no one notified Stolar, his fellow counsel or the judge for a full 18 months after the switch.

The agreement reached in the original case, Handschu et al. vs. Special Services Division, set the guidelines pretty clearly: no taping or keeping files on political protesters unless there is a specific criminal act (imminent or previous) under investigation. The purpose was to insulate peaceful protesters from undue surveillance for simply voicing their opinions — protected speech under the First Amendment.

After 9/11, the agreement was revised but largely held to the above principles, essentially just streamlining the process for obtaining permission to do surveillance. The police said they needed the restrictions loosened to help combat terrorism.

However, new scrutiny arose with the filming of political protesters by the New York City police during the 2004 Republican National Convention.

Those with access to the R.N.C. footage, like independent media expert Eileen Clancy from I-Witness Video, revealed police actions clearly in violation of the Handschu agreement. Stolar, who had been working on the case since its beginning decades ago, went on air with Clancy in February 2007 to talk about these violations and legal measures being taken to address them. On a segment for “Democracy Now” on WBAI radio, Clancy and Stolar discussed both what they called the sweeping illegal surveillance and the powerful ruling by U.S. District Court Judge Charles Haight to cease this activity.

Judge Haight, who had presided over the original 1971 Handschu case, had been called back to establish the post-9/11 revisions, but had subsequently enjoined Interim Order 47 as Stolar reported, essentially ending any surveillance actions allowed under that loosened, revised order.

And that’s where things get strange.

Only eight days later, a “draft” of what would become Interim Order 22, the replacement directive in compliance with the original Handschu guidelines, was sent to Haight and Stolar’s fellow attorney, Jethro Eisenstein.

According to a spokesperson for the city’s Law Department, the city “notified Judge Haight [as well as Eisenstein] of the guidelines in a letter dated February 27,” fulfilling its obligation.

Eisenstein said the letter “asked for a stay of [Haight’s] ruling, enclosing a draft of an order they [the city] proposed to put in place.”

However, just six days later, on March 5, the Law Department filed a motion to reargue the original Feb. 15 ruling that had enjoined illegal police surveillance under Order 47. Attached to the motion was a proposed modified version of Order 47, which Eisenstein said bore little if any resemblance to the draft submitted just a few days before. Stolar concurred, saying the Feb. 27 draft was “not even close” to the March 5 order. It would be this altered Order 47 that that they would spend the next year and a half litigating over.

It was only in September 2008 that Eisenstein and his colleagues would discover the draft — submitted Feb. 27 and never mentioned again — had been implemented some 18 months earlier as Order 22, and that Order 47 had been rendered irrelevant.

All the while, Eisenstein and his colleagues had been arguing with the city over an order that no longer functioned or really existed in any legal sense.

Understandably, Eisenstein and his colleagues are incensed. Stolar, for his part, said that he’d never seen anything like this in his nearly 40 years practicing law. He was “dying to see” what the response would be to their most recent motion in the case.

The city will file its response to the motion Dec. 10.

Arthur Eisenberg, legal director of the New York Civil Liberties Union, joined Stolar and others on this latest motion. Eisenberg explained the irony of the situation, since Order 22 conforms to the restrictions of the original agreement, the issue “at the heart of our argument all along.” Ensuring the “essential legal standards” of protesters’ rights had been fueling the litigation’s back and forth for all this time.

In a Nov. 10 press release, Eisenberg said the implementation of Order 22 was “disturbing” because it was done “in secret,” wasting tax dollars in the unnecessary legal battle that continued.

But, technically, is the city in the right? The administration submitted the draft to the necessary parties, even if it never indicated it would put the policy into practice. Meanwhile, the city proceeded to argue over a different set of guidelines for the next year and a half. Eisenstein feels strongly that the city acted wrongly and that it can offer no valid excuse.

“In my view, it doesn’t even rise to the level of a technicality,” he scoffed.

For her part, Clancy said the timing was “very curious because it corresponds exactly with the exposure of widespread spying of N.Y.P.D. officers across the country” who were doing surveillance on political protesters. She was referring to a front-page New York Times article by Jim Dwyer on March 25, 2007, just two days before the draft of Order 22 was sent to Judge Haight and the plaintiffs. She suggested that the Police Department was maneuvering to cut its losses and do damage control in case of an unfavorable ruling or more damning press. But, as Clancy noted, at the same time the Police Department and city were doing so, “they were interested in winning this particular battle” and so continued to litigate.

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