NYPD gain videotaping freedom

Joseph Goldstein
The New York Sun

NEW YORK — The police department has gained more freedom to videotape political demonstrations after a federal judge withdrew yesterday a warning he had issued to the department.

The ruling by the judge, Charles Haight Jr. of U.S. District Court in Manhattan, comes in a long-running court case between the city and civil rights attorneys over restrictions on police investigations of political groups.

With the ruling, Judge Haight did something yesterday that judges rarely do: He reversed himself.

In what amounts to a significant victory for the city, Judge Haight distanced himself from an earlier order in which he accused the police of routinely videotaping peaceful protests. In that February ruling, Judge Haight threatened the department with contempt proceedings if it continued to tape political rallies without evidence of criminal activity.

Asked by the city to reconsider that opinion, Judge Haight, decided yesterday that he lacked the authority to take action against the department for "isolated and aberrant photographing or videotaping " that did not comply with court-imposed guidelines.

Those guidelines, which are set out in a consent decree called Handschu, require that a crowd must grow unruly or a crime be about to occur before officers can videotape political demonstrations. Alternatively, police officers can get approval from the department's intelligence division to videotape political groups as part of criminal investigations.

"The judge vacated his prior order and acknowledged that the Police Department can only be held in contempt if it violates the Constitution," a special counsel for the city law department, Gail Donoghue, said in a statement sent via e-mail.

At the same time, however, Judge Haight said plaintiffs still had the right to come to court and challenge the police department for habitually violating the videotaping rules, even though the videotaping did not amount to a constitutional violation. But what enforcement action Judge Haight could take against the police department for violating those rules remained unclear.

"The judge did what King Solomon didn't do, which was cut the baby in half," one of the civil rights attorneys who brought the case, Jethro Eisenstein, said.

The ruling, Mr. Eisenstein said, reinforces the idea that "the police department is governed by these rules, not just the Constitution, but also this separate set of limitations."

The police department could be shown to have violated the rules if the police regularly filmed closeups of individual protesters at peaceful demonstrations, Judge Haight wrote in the decision.

A lawyer who represents bicyclists claiming to have been wrongfully videotaped by the police, Gideon Oliver, said he expected the police would read the decision as a permit for cameras to be used liberally.

"The practical effect of the February order is that there was at least a moment of caution before turning on the camera," Mr. Oliver said, referring to Judge Haight's earlier threat of a contempt finding. But after yesterday's ruling, Mr. Oliver said, "the police will just go back to videotaping whenever they feel like it."

Copyright 2007 The New York Sun, One SL, LLC 

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