Handschu v. Special Services Div.
| Decision Date | 09 April 1986 |
| Docket Number | Nos. 502,s. 502 |
| Citation | 787 F.2d 828 |
| Parties | Barbara HANDSCHU, Ralph Digia, Alex McKeiver, Shaba Om, Curtis M. Powell, Abbie Hoffman, Mark A. Segal, Michael Zumoff, Kenneth Thomas, Robert Rusch, Annette T. Rubinstein, Mickey Sheridan, Joe Sucher, Steven Fischler, Howard Blatt, Ellie Benzone, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. SPECIAL SERVICES DIVISION a/k/a Bureau of Special Services, William H.T. Smith, Arthur Grubert, Michael Willis, William Knapp, Patrick Murphy, Police Department of the City of New York, John V. Lindsay, and various unknown employees of the Police Department acting as undercover operators and informers, Defendants-Appellees, v. COMMUNIST PARTY, USA, Communist Party, New York State, Richard Dhoruba Moore, Black Economic Survival, Robert Bloom, Mark Gombiner, Puerto Rican Socialist Party, David Lerner, Workers World, Jean Toche, Eduardo Cruz, Bill of Rights Foundation, Bruce Anspach, Paul Avrich, Jane Benedict, Comite Chileno Anti- Fascista, John Cammett, Sheila S. Collins, Paul Cowan, Emile D'Antonio, Ralph Digia, Kathy Engel, Robert Engler, William Epton, Robert H. Fink, Miriam Friedlander, Marvin R. Gettleman, Mark Gildav, Alan Ginsberg, Peter Orlovsky, Alan Charney, Edward Greer in Behalf of Gilbert Green, Nora Bredes, Selig L. Harris, Karla Jay, Harold S. Kleinman, Robert Lefcourt, Sandra Levinson, Henry Magdoff, Ruth W. Messinger, David Metzger, Barton Meyers, Mobilization For Survival, Jerrold Nadler, North American Conference on Latin America, Bertell Ollman, Grace Paley, Steven Fischler, Joel Sucher, Paul Robeson, Jr., John S. Rosenberg, Arthur H. Samuelson, Walter Schneir, Miriam Schneir, Dennis Sherman, John J. Simon, Natalie J. Sokoloff, Samuel M. Sweeney, Sylvia Hall Thompson, Geoffrey S. Smith, Tower News Service, Basil Wilson, Win Magazine, John M. Miller, Howard Zinn, Committee For Suit Against Government Misconduct, International Indian Treaty Council, New York State Citizens Party, New York Theological Seminary, Pen American |
| Court | U.S. Court of Appeals — Second Circuit |
John Abt and Jeffrey Schwartz, New York City, for objector-appellant Communist Party USA and Communist Party NYS.
Paul G. Chevigny, Martin R. Stolar (Stolar, Alterman & Boop), Jethro M. Eisenstein (Friedman and Eisenstein) and Franklin Siegel, New York City, of counsel), for plaintiffs-appellees.
Dana Robbins, New York City (Frederick A.O. Schwartz, Jr., Corp. Counsel, and Larry A. Sonnenshein, New York City, of counsel), for defendants-appellees.
Marshall Perlin, New York City for objectors-appellants Bruce Anspach, et al.
Michael Krinsky, New York City (Rabinowitz, Boudin, Standard, Krinsky & Lieberman and Victor Rabinowitz, New York City, on the brief), for objector-appellant Nat. Emergency Civil Liberties Committee.
Robert J. Boyle, Brooklyn, N.Y. for objector-appellant Richard Dhoruba Moore.
Michael Ratner, Marjorie Ratner and Anne E. Simon, New York City, for objector-appellant Center for Constitutional Rights.
Rabinowitz, Boudin, Standard, Krinsky & Lieberman and Michael Krinsky, New York City, on brief, for objector-appellant Nat. Lawyers Guild.
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, and Betty St. Clair, New York City, on brief, for objector-appellant Bill of Rights Foundation, Inc.
Before VAN GRAAFEILAND, NEWMAN and MINER, Circuit Judges.
Objector-appellants (appellants) are members of a class who seek to overturn an order of the United States District Court for the Southern District of New York (Haight, J.) approving the settlement of a class action which charged the New York City Police Department's Public Security Section, formerly known as the Special Services Division, with violations of appellants' constitutional rights. The district court's Memorandum Opinion and Order is reported in 605 F.Supp. at 1384. Finding no error in the granting of the Order, we affirm.
The original complaint in this action was filed in 1971 by individual plaintiffs alleging on behalf of themselves and others that the Special Services Division unlawfully conducted surveillance and other investigatory activities against them and the political action groups to which they belonged. See 349 F.Supp. 766, 768-70 (S.D.N.Y.1971). For the next eight years, the parties engaged in discovery focused primarily on the issue of class certification. In 1979, a broad plaintiff class was certified under Fed.R.Civ.P. 23(a), (b)(1)(A), and (b)(2). See 605 F.Supp. at 1388.
By December 1980, the parties had negotiated a proposed settlement which they submitted to the district court for approval. The agreement, see 605 F.Supp. 1417-24, is in two parts, the first being a stipulation of settlement which provides for discontinuance of the class action with prejudice upon defendants' adoption of specified Guidelines, and the second being the Guidelines themselves.
In substance, the Guidelines provide that the NYPD public security intelligence-gathering entity will operate in conformance with constitutional guarantees; that future intelligence gathering focused on political activity will be conducted as agreed in the Guidelines, and that a three-member "Authority" will be established to oversee the activities of the intelligence-gathering unit. The Guidelines permit the Public Security Section to make inquiries concerning a planned political event only so far as is necessary to preserve peace and to assign personnel for crowd control and the orderly conduct of the gathering. In conducting an inquiry, police investigators must identify themselves to the event sponsors. Unless an approved investigation is being conducted, information concerning such events may be retained only for the aforesaid logistical purposes.
To initiate an investigation, the Public Security Section must submit an Investigation Statement to the Authority specifying the factual basis for the proposed undertaking. The investigation may proceed without Authority approval for thirty days after such a statement has been filed. After thirty days, the Section must obtain written Authority approval to continue the investigation; the Authority may approve continuation of the investigation for sixty days or may disapprove it.
Authority approval also is required for the use of undercover agents for intelligence gathering. The Authority may grant approval for the use of undercover agents for thirty days, with sixty-day extensions if warranted. If exigent circumstances exist, the request for approval, detailing such circumstances, may be delayed for up to 48 hours. Authority approval is not to be considered a substitute for judicial approval otherwise required by law.
Any persons or organizations who have reason to believe that they are named in the Public Security Section files may request that the Authority conduct an inquiry to determine whether this is so, and, if it is, to determine whether the pertinent investigation was conducted in accordance with the Guidelines. The Authority may determine what disposition is to be made of improperly acquired information and must report instances of nonconforming investigations to the police commissioner, "who shall initiate disciplinary measures."
A public security intelligence file may not be maintained on an individual solely because of his political, religious, sexual, or economic preference. Moreover, unless written authorization from the Authority has been obtained, a file may not contain information that an individual has signed a political petition, or appears on a mailing list, or has contributed to a political group or has disseminated political or religious writings.
The Guidelines specify how intelligence information gathered by the Public Security Section may be disseminated. Requests for information must be screened, and release of information is limited to law enforcement agencies and government security clearance investigations. Records of disclosure must be kept, and, if inaccurate information is found to have been disclosed, all recipients of that information must be so notified.
The settlement agreement also prescribes preservation and access requirements for the public security intelligence files. Files created before 1955 may be destroyed. Files dating from 1955 to 1960 must be retained for six months after entry of the stipulation, and files dating from 1960 to the entry date must be retained for one year thereafter. Members of the plaintiff class may inspect and copy files during the retention periods, subject to verification of their connection with the organization involved or their membership in the plaintiff class. The Public Security Section may deny access to the file when the file "relates to a current investigation or when information was collected in the course of an investigation based on specific information that the subject engaged in, was about to engage in, or threatened to engage in conduct constituting a crime or when the disclosure of the file would endanger the life or safety of any person." Denial of access may be appealed to the Authority.
The stipulation provides that plaintiffs will notify defendants of any...
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