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Apr 26, 2007 8:32 pm US/Eastern
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Judge Asked To End Political Protest Taping Ban
NEW YORK (CBS/AP) ―
A judge on Thursday said police cannot routinely videotape demonstrations when they involve purely political activity.
U.S. District Judge Charles S. Haight said New York Police Department videotaping of two recent protests was as egregious as police conduct at anti-Vietnam War demonstrations 35 years ago that led to permanent court oversight of police surveillance and intelligence collecting methods at large gatherings.
The judge said the city had violated the Handschu guidelines, named for the lead plaintiff in a case that included 1960s radical activist Abbie Hoffman and others as plaintiffs.
"Solely politically based investigations are flatly prohibited by the guidelines," the judge wrote. "In other words, there must always be a legitimate law enforcement purpose -- having a purpose of investigating political activity exclusively for its own sake is never allowed."
The judge said the city cannot be stopped from videotaping demonstrators on First Amendment grounds, despite the plaintiffs' contention that being videotaped by police at peaceful protests is unpleasant and unsettling and inhibits their activities.
"These sentiments, while understandable in human terms, fall well short" of what is needed to assert a constitutional claim, the judge said.
City law department special counsel Gail Donoghue said it was significant that the judge rejected the plaintiffs' long-standing argument that the videotaping violates the First Amendment.
New York Civil Liberties Union executive director Donna Lieberman said the ruling "should restore the expectation that New Yorkers can participate in lawful demonstrations without fear of being placed in political dossiers."
The judge rejected the city's argument that it could not be found to violate the Handschu guidelines unless it had also violated the Constitution.
"If all the Handschu guidelines do is forbid NYPD conduct that the Constitution forbids, those involved in the case have been wasting their time," the judge said. "I reject that interpretation. It is entirely appropriate for a consent decree or guidelines such as these to prohibit police activity which the Constitution would allow."
He sided with lawyers for the class who complained that police procedures regarding videotaping that were implemented in September 2004 amounted to police deciding they can videotape political demonstrations whenever they want.
He said the police department acted improperly when it videotaped demonstrators in December 2005 in a march organized by advocates for the homeless outside Mayor Michael Bloomberg's residence. He said the department also erred when in March 2005 it videotaped participants in a Harlem rally.
The city was not punished for the two protests it videotaped, but the judge said it would be held in contempt of court for future violations and could be fined.
Lawyers for the class had also protested the videotaping of monthly Critical Mass bicycle demonstrations throughout the city, but the judge said those demonstrations could be videotaped if police obtained authorization for videotaping from the department's deputy commissioner of intelligence.
"It is clear that some Critical Mass bikers thought the best way to get their message across was to engage in the unlawful and dangerous practices of running red lights and impeding automobile traffic," the judge said.
The consent decree that created the Handschu guidelines settled a 1971 lawsuit brought by the Black Panther Party alleging that police engaged in widespread surveillance of legitimate political activity and distributed the information to other law enforcement groups.
The Handschu guidelines were modified after the Sept. 11, 2001, terrorist attacks to help the police department investigate terrorism or terrorism-related crimes.
The judge said a police statement of the importance of videotaping large well-advertised public gatherings, airports, bridges, tunnels and subway lines had the "unintended consequence of showing that more modest and unheralded political gatherings, such as the Coalition for the Homeless demonstration, are less likely to attract terrorists bent upon destruction or to deter terrorism by the open and public display of video recorders and cameras."
(© 2007 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)