In a rebuke of a surveillance practice greatly expanded by the New York Police Department after the Sept. 11 attacks, a federal judge ruled yesterday that the police must stop the routine videotaping of people at public gatherings unless there is an indication that unlawful activity may occur.
Four years ago, at the request of the city, the same judge, Charles
S. Haight Jr., gave the police greater authority to investigate
political, social and religious groups. In yesterday's ruling,
Judge Haight, of United States District Court in Manhattan, found that
by videotaping people who were exercising their right to free speech
and breaking no laws, the Police Department had ignored the milder
limits he had imposed on it in 2003. Citing two events in 2005 -- a march in Harlem and a demonstration by homeless people in front of the home of Mayor Michael R. Bloomberg -- the judge said the city had offered scant justification for videotaping the people involved.
"There was no reason to suspect or anticipate that unlawful or
terrorist activity might occur," he wrote, "or that pertinent
information about or evidence of such activity might be obtained by
filming the earnest faces of those concerned citizens and the signs by
which they hoped to convey their message to a public official." While
he called the police conduct "egregious," Judge Haight also offered an
unusual judicial mea culpa, taking responsibility for his own words in
a 2003 order that he conceded had not been "a model of clarity." The
restrictions on videotaping do not apply to bridges, tunnels, airports,
subways or street traffic, Judge Haight noted, but are meant to control
police surveillance at events where people gather to exercise their
rights under the First Amendment. "No reasonable person, and
surely not this court, is unaware of the perils the New York public
faces and the crucial importance of the N.Y.P.D.'s efforts to detect,
prevent and punish those who would cause others harm," Judge Haight
wrote. Jethro M. Eisenstein, one of the lawyers who challenged
the videotaping practices, said that Judge Haight's ruling would make
it possible to contest other surveillance tactics, including the use of
undercover officers at political gatherings. In recent years, police
officers have disguised themselves as protesters, shouted feigned
objections when uniformed officers were making arrests, and pretended
to be mourners at a memorial event for bicycle riders killed in traffic
accidents. "This was a major push by the corporation counsel to
say that the guidelines are nice but they're yesterday's news, and that
the security establishment's view of what is important trumps civil
liberties," Mr. Eisenstein said. "Judge Haight is saying that's just
not the way we're doing things in New York City." A spokesman for Police Commissioner Raymond W. Kelly
referred questions about the ruling to the city's lawyers, who noted
that Judge Haight did not set a deadline for destroying the tapes it
had already made, and that the judge did not find the city had violated
the First Amendment.
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