C.A.:Handschu

Cointelpro Case

Handschu v. Special Services Div.,605 F.Supp. 1384 (D.C.N.Y.,1985)

*1387 Frederick A.O. Schwarz, Corp. Counsel, New York City, for defendants.

Paul G. Chevigny, Jethro M. Eisenstein, Friedman & Eisenstein, Martin R. Stolar, Stolar, Alterman, Wagner & Boop, Franklin Siegel, New York City, for plaintiff class.

Victor Rabinowitz, Betty St. Clair, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, for National Emergency Civil Liberties Committee and the Bill of Rights Foundation.

Marshall Perlin, New York City, for Michael Rubin, et al.

Michael Krinsky, Martin Popper, New York City, for National Lawyers Guild.

Michael Ratner, New York City, for Center for Constitutional Rights and Puerto Rican Socialist Party.

Robert Boyle, Elizabeth Fink, New York City, for Richard Dhoruba Moore.

John Abt, Jeffrey Schwartz, New York City, for Communist Party, U.S.A. and Communist Party, N.Y.S.

O. Stephen Paganuzzi, New York City, for Charlene Mitchell, National Alliance Against Racist & Political Repression, U.S. Peace Council and Labor Research Assn.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

This is a class action under 42 U.S.C. � 1983, originally brought against the Mayor *1388 of the City of New York, its Police Commissioner, and other police officials who played a role in the Security and Investigation Section (“SIS”) of the New York City Police Department (“NYPD”). The action embraces the named defendants and any successor organization or unit within the NYPD or, in the case of individual defendants, their successors in office or function. In point of fact, the NYPD unit whose activities form the subject matter of the litigation is now called the Public Security Section (“PSS”) of the NYPD’s Intelligence Division. The original individual defendants have been replaced by successors.

The complaint, filed in 1971, was in the name of sixteen individual plaintiffs, affiliated with various named political action groups, who on behalf of themselves and other similarly situated claimed that the SIS had violated their constitutional rights by various surveillance and other activities.

Defendants moved to dismiss the complaint under Rule 12(b)(1) and (6), F.R.Civ.P. They also challenged maintenance of the suit as a class action. Judge Weinfeld denied the motion to dismiss. 349 F.Supp. 766 (S.D.N.Y.1971). His opinion contains a useful summary of plaintiffs’ claims:

“The complaint alleges that certain practices and conduct of SIS infringe plaintiffs’ constitutional rights and these are set forth under seven specific categories: (1) informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5) summary punishment; (6) intelligence gathering; (7) electronic surveillance. In end result it is charged that these practices have a ‘chilling effect’ on plaintiffs and members of their class in the exercise of their constitutional rights of freedom of speech, assembly and association; that they violate their rights against unlawful search and seizure because the SIS proceeds without obtaining warrants or judicial authorization; also that they violate their rights of privacy and to substantive and procedural due process; and finally, that the effect of such activities is to visit upon them cruel and unusual punishment. Thus, the broad sweep of plaintiffs’ complaint charges violations of the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution.”

Id. at 768-69.

He left the question of class certification for another day. Id. at 771.

After discovery addressing the issue, this Court certified a class pursuant to Rule 23(a), (b)(1)(A) and (b)(2). The class was defined as follows:

“All individuals resident in the City of New York, and all other persons who are physically present in the City of New York, and all organizations located or operating in the City of New York, who engage in or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have, been, are now or hereafter may be subjected to or threatened by infiltration, physical and verbal coercion, photographic, electronic and physical surveillance, provocation of violence, recruitment to act as police informers and dossier collection and dissemination by defendants and their agents.”

Memorandum Opinion and Order of May 24, 1979.

The case is now before the Court on the motion of counsel for plaintiff class and defendants to approve a negotiated settlement, of which the class was given appropriate notice. [n 1] A fairness hearing has extended over a number of days, interspersed by requiring defendants to answer interrogatories as to the meaning and implementation of the settlement, and the filing of extensive briefs and presentation of oral argument.

n 1. Notice of the proposed settlement and the class members’ right to file objections was given by newspaper publication. Certain objectors moved by order to show cause to challenge the adequacy of the notice as given, in respect of both its text and dissemination. Those challenges were rejected in the Court’s Memorandum Opinion of April 6, 1981, familiarity with which is assumed.

*1389 The settlement is resisted by a number of class members (hereinafter the “objectors”).

I.

The Certified Class

At first, certain objectors contended that the certified class was unworkably broad and vague, reached impermissibly into the future, usurped a legislative function, and was “facially unconstitutional.”

However, in section 1983 litigation against the Chicago police department and other law enforcement agencies, which in other respects the objectors regard with relative favor, virtually identical class certifications issued. See Alliance to End Repression v. Rochford, 565 F.2d 975, 976 (7th Cir.1977); Alliance to End Repression v. City of Chicago, 91 F.R.D. 182, 187 (N.D.Ill.1981); Alliance to End Repression v. City of Chicago, 561 F.Supp. 537, 541 (N.D.Ill.1982). Objectors, confronted by that precedent, still profess unease with the class description but no longer argue “that the class is on its face unconstitutional.” Main brief at 54.

[1] Nor is it: as the Alliance courts, trial and appellate, recognized, where class litigation seeks to safeguard broad constitutional rights in futuro, the class must be equally broad in scope and time. If the class could not be so structured, class actions would cease to be a viable alternative means of challenging police surveillance activities. Individual suits, and efforts (surely problematical) to obtain legislation, would remain; but precedent shows that class actions have a potentially useful role to play. There is an irony in condemning as “unconstitutional” because of its boundaries a class whose boundaries are necessitated by the constitutional interests sought to be protected.

[2] The class certification is appropriate. Accordingly the motion turns upon the merits of the proposed settlement, whose provisions will now be considered.

II.

The Proposed Settlement

(a) Introduction

The proposed settlement takes the form of a Stipulation of Settlement to be endorsed by Court order, and “Guidelines” incorporated by reference in the stipulation. Copies of these documents appear as Appendix A to this opinion. The salient features are summarized below.

The Stipulation provides for discontinuation of the action with prejudice upon defendants’ satisfaction of specified terms and conditions. These include the promulgation and adoption of the Guidelines within 30 days of entry of the Court-approved stipulation. Stipulation, p. 3, � 1.

Paragraphs 2-5 of the Stipulation deal with the inspection and disposition of past and current files maintained by PSS and its predecessors. Paragraph 6 contains procedures for claimed violations of the Stipulation. Paragraph 7 specifies the claims that the Stipulation settles. I discuss these provisions infra. First I will summarize the Guidelines.

(b) The Guidelines

The Guidelines deal with future collection, retention and dissemination of information by the PSS. They begin with a “General Statement of Policy” which reads as follows:

“Activities of the Public Security Section (hereafter PSS) of the Intelligence Division will conform to constitutionally guaranteed rights and privileges. Information shall be collected, retained and disseminated by the PSS only in accordance with the provisions set forth herein.”

Section II of the Guidelines contains certain definitions. One of them defines the “Authority” as “a board established pursuant to Section III of these Guidelines.” Section II(B). Section III establishes the “Authority” referred to in Section II(B). Section III provides:

*1390 “There is hereby established an Authority to oversee the activities of the PSS of the Intelligence Division. It shall consist of three members who shall act as a body, to wit, the First Deputy Commissioner of the Police Department, the Deputy Commissioner for Legal Matters of the Police Department, and a civilian member appointed by the Mayor upon consultation with the Police Commissioner for a term revocable at will. The decisions of the Authority as set forth herein shall be by majority vote and shall be binding upon the PSS. The day-to-day operations of the PSS of the Intelligence Division shall continue to be the responsibility of the Commanding Officer, Intelligence Division.”

Section IV is captioned “Conduct of Investigations and Role of Authority.” Section IV(A) provides generally:

“The Police Department shall not engage in any investigation of political activity except through the PSS of the Intelligence Division or its successor and such investigations shall be conducted as set forth in these guidelines.”

The section then deals with a number of specific situations and contingencies.

The first of these is triggered by “receipt of information concerning a planned event,” Section IV(B). The PSS “may conduct an Event Planning Inquiry (EPI) in order to preserve the peace, deploy manpower for control of crowds and to protect the right of individuals to freedom of speech and assembly.” Police personnel conducting an EPI must identify themselves as such to the sponsoring organization, its officials or persons in authority. The police may seek only limited information about the planned event. Section B(IV)(1-10). While PSS may retain information concerning past events, it may be used “only to document claims for governmental funding or reimbursement, and to assist in allocation of Police Department resources for future events.” No individual or group names will be included in PSS files because they were included in an EPI report; nor shall other EPI-generated information be retained unless a Section IV(C) investigation is undertaken.

Section IV(C) provides:

“When specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime the PSS is authorized to commence an investigation of such person or group,” subject to limitations thereafter specified.

Section IV(C)(1) requires PSS, before initiating an investigation, to submit to the Authority “an Investigation Statement which specifies the factual predicate therefor.” The statement may be filed within 48 hours after initiation “upon good cause shown.” A Section IV(C) investigation may be conducted for 30 days without the Authority’s approval, provided an Investigation Statement has been filed. Section IV(C)(2). Within 30 days after initiation of an investigation PSS must request in writing the Authority’s approval to continue it, summarizing the information obtained to date. The Authority may grant the extension for an additional 60 days if “PSS has demonstrated good cause for the investigation and demonstrated that such extension is necessary to reasonably pursue the investigation,” Section IV(C)(4)(a); or deny it if PSS fails to make these showings, Section IV(C)(4)(b), in which event the Authority directs discontinuance of the investigation, the submission of a report, and

Handschu v. Special Services Div., 605 F.Supp. 1384 (D.C.N.Y.,1985)

*1387 Frederick A.O. Schwarz, Corp. Counsel, New York City, for defendants.

Paul G. Chevigny, Jethro M. Eisenstein, Friedman & Eisenstein, Martin R. Stolar, Stolar, Alterman, Wagner & Boop, Franklin Siegel, New York City, for plaintiff class.

Victor Rabinowitz, Betty St. Clair, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, for National Emergency Civil Liberties Committee and the Bill of Rights Foundation.

Marshall Perlin, New York City, for Michael Rubin, et al.

Michael Krinsky, Martin Popper, New York City, for National Lawyers Guild.

Michael Ratner, New York City, for Center for Constitutional Rights and Puerto Rican Socialist Party.

Robert Boyle, Elizabeth Fink, New York City, for Richard Dhoruba Moore.

John Abt, Jeffrey Schwartz, New York City, for Communist Party, U.S.A. and Communist Party, N.Y.S.

O. Stephen Paganuzzi, New York City, for Charlene Mitchell, National Alliance Against Racist & Political Repression, U.S. Peace Council and Labor Research Assn.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

This is a class action under 42 U.S.C. � 1983, originally brought against the Mayor *1388 of the City of New York, its Police Commissioner, and other police officials who played a role in the Security and Investigation Section (“SIS”) of the New York City Police Department (“NYPD”). The action embraces the named defendants and any successor organization or unit within the NYPD or, in the case of individual defendants, their successors in office or function. In point of fact, the NYPD unit whose activities form the subject matter of the litigation is now called the Public Security Section (“PSS”) of the NYPD’s Intelligence Division. The original individual defendants have been replaced by successors.

The complaint, filed in 1971, was in the name of sixteen individual plaintiffs, affiliated with various named political action groups, who on behalf of themselves and other similarly situated claimed that the SIS had violated their constitutional rights by various surveillance and other activities.

Defendants moved to dismiss the complaint under Rule 12(b)(1) and (6), F.R.Civ.P. They also challenged maintenance of the suit as a class action. Judge Weinfeld denied the motion to dismiss. 349 F.Supp. 766 (S.D.N.Y.1971). His opinion contains a useful summary of plaintiffs’ claims:

“The complaint alleges that certain practices and conduct of SIS infringe plaintiffs’ constitutional rights and these are set forth under seven specific categories: (1) informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5) summary punishment; (6) intelligence gathering; (7) electronic surveillance. In end result it is charged that these practices have a ‘chilling effect’ on plaintiffs and members of their class in the exercise of their constitutional rights of freedom of speech, assembly and association; that they violate their rights against unlawful search and seizure because the SIS proceeds without obtaining warrants or judicial authorization; also that they violate their rights of privacy and to substantive and procedural due process; and finally, that the effect of such activities is to visit upon them cruel and unusual punishment. Thus, the broad sweep of plaintiffs’ complaint charges violations of the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution.”

Id. at 768-69.

He left the question of class certification for another day. Id. at 771.

After discovery addressing the issue, this Court certified a class pursuant to Rule 23(a), (b)(1)(A) and (b)(2). The class was defined as follows:

“All individuals resident in the City of New York, and all other persons who are physically present in the City of New York, and all organizations located or operating in the City of New York, who engage in or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have, been, are now or hereafter may be subjected to or threatened by infiltration, physical and verbal coercion, photographic, electronic and physical surveillance, provocation of violence, recruitment to act as police informers and dossier collection and dissemination by defendants and their agents.”

Memorandum Opinion and Order of May 24, 1979.

The case is now before the Court on the motion of counsel for plaintiff class and defendants to approve a negotiated settlement, of which the class was given appropriate notice. [n 1] A fairness hearing has extended over a number of days, interspersed by requiring defendants to answer interrogatories as to the meaning and implementation of the settlement, and the filing of extensive briefs and presentation of oral argument.

n 1. Notice of the proposed settlement and the class members’ right to file objections was given by newspaper publication. Certain objectors moved by order to show cause to challenge the adequacy of the notice as given, in respect of both its text and dissemination. Those challenges were rejected in the Court’s Memorandum Opinion of April 6, 1981, familiarity with which is assumed.

*1389 The settlement is resisted by a number of class members (hereinafter the “objectors”).

I.

The Certified Class

At first, certain objectors contended that the certified class was unworkably broad and vague, reached impermissibly into the future, usurped a legislative function, and was “facially unconstitutional.”

However, in section 1983 litigation against the Chicago police department and other law enforcement agencies, which in other respects the objectors regard with relative favor, virtually identical class certifications issued. See Alliance to End Repression v. Rochford, 565 F.2d 975, 976 (7th Cir.1977); Alliance to End Repression v. City of Chicago, 91 F.R.D. 182, 187 (N.D.Ill.1981); Alliance to End Repression v. City of Chicago, 561 F.Supp. 537, 541 (N.D.Ill.1982). Objectors, confronted by that precedent, still profess unease with the class description but no longer argue “that the class is on its face unconstitutional.” Main brief at 54.

[1] Nor is it: as the Alliance courts, trial and appellate, recognized, where class litigation seeks to safeguard broad constitutional rights in futuro, the class must be equally broad in scope and time. If the class could not be so structured, class actions would cease to be a viable alternative means of challenging police surveillance activities. Individual suits, and efforts (surely problematical) to obtain legislation, would remain; but precedent shows that class actions have a potentially useful role to play. There is an irony in condemning as “unconstitutional” because of its boundaries a class whose boundaries are necessitated by the constitutional interests sought to be protected.

[2] The class certification is appropriate. Accordingly the motion turns upon the merits of the proposed settlement, whose provisions will now be considered.

II.

The Proposed Settlement

(a) Introduction

The proposed settlement takes the form of a Stipulation of Settlement to be endorsed by Court order, and “Guidelines” incorporated by reference in the stipulation. Copies of these documents appear as Appendix A to this opinion. The salient features are summarized below.

The Stipulation provides for discontinuation of the action with prejudice upon defendants’ satisfaction of specified terms and conditions. These include the promulgation and adoption of the Guidelines within 30 days of entry of the Court-approved stipulation. Stipulation, p. 3, � 1.

Paragraphs 2-5 of the Stipulation deal with the inspection and disposition of past and current files maintained by PSS and its predecessors. Paragraph 6 contains procedures for claimed violations of the Stipulation. Paragraph 7 specifies the claims that the Stipulation settles. I discuss these provisions infra. First I will summarize the Guidelines.

(b) The Guidelines

The Guidelines deal with future collection, retention and dissemination of information by the PSS. They begin with a “General Statement of Policy” which reads as follows:

“Activities of the Public Security Section (hereafter PSS) of the Intelligence Division will conform to constitutionally guaranteed rights and privileges. Information shall be collected, retained and disseminated by the PSS only in accordance with the provisions set forth herein.”

Section II of the Guidelines contains certain definitions. One of them defines the “Authority” as “a board established pursuant to Section III of these Guidelines.” Section II(B). Section III establishes the “Authority” referred to in Section II(B). Section III provides:

*1390 “There is hereby established an Authority to oversee the activities of the PSS of the Intelligence Division. It shall consist of three members who shall act as a body, to wit, the First Deputy Commissioner of the Police Department, the Deputy Commissioner for Legal Matters of the Police Department, and a civilian member appointed by the Mayor upon consultation with the Police Commissioner for a term revocable at will. The decisions of the Authority as set forth herein shall be by majority vote and shall be binding upon the PSS. The day-to-day operations of the PSS of the Intelligence Division shall continue to be the responsibility of the Commanding Officer, Intelligence Division.”

Section IV is captioned “Conduct of Investigations and Role of Authority.” Section IV(A) provides generally:

“The Police Department shall not engage in any investigation of political activity except through the PSS of the Intelligence Division or its successor and such investigations shall be conducted as set forth in these guidelines.”

The section then deals with a number of specific situations and contingencies.

The first of these is triggered by “receipt of information concerning a planned event,” Section IV(B). The PSS “may conduct an Event Planning Inquiry (EPI) in order to preserve the peace, deploy manpower for control of crowds and to protect the right of individuals to freedom of speech and assembly.” Police personnel conducting an EPI must identify themselves as such to the sponsoring organization, its officials or persons in authority. The police may seek only limited information about the planned event. Section B(IV)(1-10). While PSS may retain information concerning past events, it may be used “only to document claims for governmental funding or reimbursement, and to assist in allocation of Police Department resources for future events.” No individual or group names will be included in PSS files because they were included in an EPI report; nor shall other EPI-generated information be retained unless a Section IV(C) investigation is undertaken.

Section IV(C) provides:

“When specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime the PSS is authorized to commence an investigation of such person or group,” subject to limitations thereafter specified.

Section IV(C)(1) requires PSS, before initiating an investigation, to submit to the Authority “an Investigation Statement which specifies the factual predicate therefor.” The statement may be filed within 48 hours after initiation “upon good cause shown.” A Section IV(C) investigation may be conducted for 30 days without the Authority’s approval, provided an Investigation Statement has been filed. Section IV(C)(2). Within 30 days after initiation of an investigation PSS must request in writing the Authority’s approval to continue it, summarizing the information obtained to date. The Authority may grant the extension for an additional 60 days if “PSS has demonstrated good cause for the investigation and demonstrated that such extension is necessary to reasonably pursue the investigation,” Section IV(C)(4)(a); or deny it if PSS fails to make these showings, Section IV(C)(4)(b), in which event the Authority directs discontinuance of the investigation, the submission of a report,  .    .    .

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