The judge overseeing ongoing litigation against the NYPD for spying on Muslim-Americans on Monday rejected a proposed settlement of the suit, ruling that it lacked the teeth to ensure NYPD compliance with rules governing surveillance of political groups.
In a measured but unsparing opinion tracing the origins of the litigation, Judge Charles Haight of New York's Southern District found that proposed changes to what are known as the Handschu Guidelines did not go far enough in establishing robust civilian oversight of the police department's surveillance operations.
The settlement agreement was intended to resolve two related suits, one brought several years ago by a group of Muslim-Americans and civil libertarian organizations after a series of AP reports revealed the NYPD had engaged in blanket surveillance of Muslims and an older class action suit dating back to 1971 that led to the creation of Handschu. That suit has been renewed periodically over changes to NYPD policies and practices, with the current iteration focusing on a post-9/11 loosening of the guidelines.
The settlement called for the establishment of a committee composed of senior NYPD officials and a mayoral-appointed monitor that would oversee NYPD compliance. The monitor, a civilian lawyer, would make reports to the mayor, police commissioner or the court.
Judge Haight, who originally approved the post-9/11 changes, said he lacked confidence in the NYPD's ability and willingness to police itself, noting that it has continued to flout Handschu in the months since the settlement was first announced.
He cited an August report from the Department of Investigation's Office of the Inspector General that found the department ignored rules restricting the duration of investigations and the use of confidential informants, and frequently failed to provide detailed justifications for its surveillance operations.
"Those failures suggest a systemic inclination on the part of the Intelligence Bureau to disregard the Guidelines' mandates," he wrote. "These circumstances are more consistent with an NYPD accustomed to disregarding the Handschu Guidelines once an investigation or its continuance is authorized rather than a department dedicated to compliance with the Guidelines governing how the investigation is to be conducted."
Haight instructed the parties to amend the settlement so that the civilian monitor would file confidential quarterly reports to the court, which would also be made available to the city’s corporation counsel and class counsel. This monitor would not report concerns to the police commissioner or the mayor.
Several organizations had expressed concerns at hearings on the settlement about the powers of the civilian monitor, arguing that the monitor should be appointed by the court. But Haight expressed faith that the mayor would appoint a fair and independent monitor.
Under Haight's proposed amendments to the guidelines, the position of monitor would exist for a minimum of five years, after which the court would weigh in on any mayoral requests to modify the position.
"I suggest that alteration because one cannot foretell what will happen over time in this sensitive and volatile part of life, and it is questionable whether it is fair or reasonable to give the Mayor ... unfettered veto power," he wrote.
Haight endorsed a number of other provisions in the settlement, including standards for commencing an investigation and the proposed composition of the Handschu committee. He wrote that he'd look favorably upon an updated settlement that incorporated his instructions.
Afaf Nasher, executive director of the New York chapter of the Council on American-Islamic Relations, applauded the judge's ruling. "From the onset we were against the settlement because it did not provide enough protection," she said. "I think the judge got it exactly right when he said the NYPD has an inclination to disregard the rules when it comes to surveillance of Muslim-Americans."
If no settlement is reached, the litigation will resume and the court will rule on the plaintiffs' request to have a court-appointed monitor of the NYPD installed.
The NYCLU, one of the civil rights organizations that brought the suit, issued a press release Monday on behalf of class counsel, which signed off on the January settlement. "This development is an opportunity to put the strongest safeguards in place, and we are eager to discuss the court's suggestions with the NYPD and the city," the release stated.
The NYPD did not respond to Gothamist's request for comment. Mayor de Blasio and Police Commissioner James O'Neill are holding a press conference this afternoon at 1:00 p.m. A spokesperson for the mayor's office said they'll be taking questions on Haight's ruling.