To tape or not to tape? That is the question before a Federal district court this week. The issue at hand is whether the police may videotape political protestors, and whether a judge would reconsider his decision that answered that question: "No."

Gail Donoghue, special counsel for the city’s Law Department, began the hearing by telling Judge Haight that he overstepped his judicial powers in February when he essentially made his own court the enforcer for police guidelines that govern the investigation of political activity. Ms. Donoghue said that by making the court the final arbiter of police surveillance issues, the judge had in fact begun to “oversee operations of the Intelligence Division of the Police Department.”

The guidelines were established in 1985 under a settlement in the Handschu case and include provisions that forbid the police from investigating political groups unless it is believed that some sort of unlawful activity is under way — in which situation the police must apply for permission to the deputy police commissioner in charge of the Intelligence Division. The guidelines have restricted techniques that the department may use in monitoring people involved in everything from antiwar demonstrations to rides by the bicycle group Critical Mass.

Advocates for the city are arguing that videotaping isn't even about surveillance, but legal protection for New York when the city is invariably sued after cops go on a skull-thumping spree with uncooperative protestors. Videotape is needed to display that certain people were basically asking for a beating; or were asking for a beating but didn't get one if that happens to be the case.

The Center for Constitutional Rights is currently litigating on behalf of three New Yorkers who claim that cops roughed them up for practicing exactly what the police are asking the courts to allow.

The suit, filed against the city in federal court in Manhattan, accuses three New York Police Department officers of "arresting, without reasonable suspicion or probable cause, individuals who exercise their rights under the First Amendment by engaging in monitoring and documenting police activities."

The suit seeks unspecified compensatory and punitive damages and a court order barring police from disrupting the watchdog program, called CopWatch.

Big Brother, overt surveillance, civilian oversight of police actions: the courts certainly have a few balls in the air this week. What would happen if an off-duty officer videotaped a protest that police were dispersing? We'll let some unlucky judge handle that case when it comes before him.

(SeanBell Protest/Rally - union square - nyc, by XJustin IntensityX at flickr)