The New York City Police Department may be violating a 35-year-old agreement meant to keep the police from investigating individual’s protected political speech, according to the lawyers who negotiated it.
In a letter sent to the police department’s legal counsel Monday, the lawyers raise concerns about recent reports that the NYPD’s Intelligence Division, along with the FBI, have been questioning protesters arrested on curfew violations about their political sympathies and affiliations, along with their social media behavior.
First reported by Univision and then by The Intercept last week, the accounts of political questioning now number more than a dozen, according to Martin Stolar, one of the authors of the letter. One of those accounts comes from Hannah Shaw, a former staffer in the Mayor’s Office, who detailed her encounter on the night of June 4th in a Twitter thread.
Among the questions the NYPD and FBI are asking, according to the letter: “What social media accounts do you follow?” “What do you know about antifa?” “Are you with anarchist groups?” And, “Do you follow protest-related accounts?”
In raising these questions, the NYPD wades into one of the thorniest and most long-standing problems in its lengthy history: its recurrent tendency to police political dissidents. In the early years of the 20th Century, the NYPD maintained a unit that went after communists, anarchists, and Italians. In subsequent decades, the unit evolved into the “Radical Bureau," which kept tabs on communist New Yorkers.
By the 1960s, the unit was called the “Bureau of Special Services,” and it was spying on nearly every political organization New Yorkers could come up with. As that surveillance and interference came to light, it gave rise to a lawsuit named after one of the plaintiffs, Barbara Handschu. After more than a decade, in 1985 the lawsuit produced a consent decree in which the police committed not to investigate people’s political, ideological or religious behavior unless they have good cause to think that person is committing a crime.
But the NYPD has never been content to abide by the restrictions of the Handschu guidelines, and so, over the years, whether because the NYPD has asked for the restrictions to be loosened, or because it has been caught violating the terms of the agreement, the case has found itself back in court. “I've come to think of the case as a sort of volcano,” Judge Senior U.S. Judge Charles S. Haight, who has presided over the case since its inception, said in 2013. “Quiet most of the time, but every now and then blows up."
If Monday’s letter from the Handschu plaintiffs' lawyers is any indication, the volcano may be about to erupt again. The letter draws a comparison to the past week’s questioning of people arrested on minor charges about their political activity and the “demonstration debriefing form” the NYPD was using in 2003 to ask anti-war protesters about their political sentiments and connections. At the time, Judge Haight ruled the debriefing form an unacceptable foray of the police into protected political behavior, and instituted revised guidelines expressly forbidding it.
In the immediate aftermath of the September 11th attacks, the NYPD hired David Cohen from the Central Intelligence Agency to run the NYPD’s Intelligence Division. Cohen felt he couldn’t work under Handschu’s strictures, and, in the frightened climate of the moment, successfully petitioned Haight for them to be loosened.
As it turned out, the NYPD used that latitude to conduct extensive warrantless surveillance on Muslim New Yorkers based on nothing more than their faith and their nations of origin. The relaxed terms of Handschu still precluded the police from recording conversations about anything other than suspected criminal activity, but they did anyway. The Handschu lawyers brought the case back before Judge Haight, who in 2017 forced the NYPD to accept a beefed-up set of restrictions, noting the department’s “systemic inclination” to violate people’s rights to political speech and association.
When the Handschu lawyers wrote to the NYPD in 2015 to express concern about the political questioning of Black Lives Matter protesters, Lawrence Byrne, at the time the NYPD Deputy Commissioner for Legal Matters, wrote back reassuringly, recommitting the Department to adhering to the rules. “We recognize that when individuals are subject to post-arrest questioning about criminal activities where their arrests arose out of protests, extra caution must be exercised to ensure that any questions about political activity are asked with a proper basis and with appropriate authorization,” Byrne wrote.
Stolar and his colleagues want to know if those assurances are still good. Stolar said he was also concerned about the involvement of federal law enforcement in the questioning. “What is the FBI doing interrogating these people?” he asked. “Why are people who have been detained on a curfew violation being made available to the FBI? I’m concerned, because you’ve got [Attorney General] Bill Barr saying, ‘We’ve got to get antifa,’ they’re going to try to make arrests. They’re going to try to manufacture an ogre in order to slay an ogre.”
In their letter, Stolar and his colleagues ask the NYPD to answer a series of questions, including how many people have been interrogated in this way, how these interrogations were authorized, and what legal justification the police are using to conduct them.
Depending on how the NYPD answers those questions, Stolar said, the two parties could soon be back in court in front of Judge Haight, in a lawsuit that first began in 1971.
Judge Haight, who is now 89, has called Handschu “the class-action eternal,” and predicted that “there will be a Handschu class-action and a judge of this Court in charge of it for it as long as New York City stands.”
Stolar says that’s because the lawsuit and the consent decree that arose out of it concern a vital principle. “The police department has no business in collecting information and records about people who are exercising their First Amendment rights. That is not a police matter,” Stolar said.
“It is not a matter for the state to collect information about its citizens’ politics. That happens in fascist countries, or with the Stasi in East Germany. We don’t do that in the United States. The Constitution prohibits it, and the tradition of American freedom prohibits it. We have the police to investigate crimes, not politics.”
The NYPD did not respond to a request for comment.
[UPDATE / 5:36 p.m.] On Tuesday evening NYPD Spokesperson Sergeant Mary Frances O’Donnell responded to questions Gothamist had posed Monday about the interrogations.
O’Donnell wrote that while detectives were focused on investigating crimes that occurred around the protests, "Intelligence Bureau personnel focused [on] the illegal activity of anarchist groups that have been the suspected drivers of violence and property damage during the protests.”
The Intelligence Division was trying to find out if anarchists were communicating or coordinating with looters, O’Donnell wrote. “The interviews were only directed at persons arrested at night during the time when looting and vandalism was prevalent.”
These interviews numbered roughly 100, O’Donnell wrote, and ended after three days on June 4th.
You can read Stolar's full letter below.
