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Judge Rejects NYPD Muslim Surveillance Settlement, Pushes for Stronger Protections

A federal judge has rejected a lawsuit settlement over the New York Police Department’s (NYPD) surveillance of Muslim Americans after the Sept. 11, 2001, terrorist attacks. He also suggested changes to the agreement, in an effort to strengthen protections against future unwarranted police surveillance.

In his ruling, dated Oct. 28, Judge Charles S. Haight, Jr., of U.S. District Court in Manhattan, enumerated the proposed revisions to a settlement reached in January in two separate cases. In that original agreement, the NYPD consented to limit its use of undercover officers and informants for instances when information sought in an investigation "could not reasonably be obtained in a timely and effective manner by less intrusive means."

Muslim community members and supporters march near 1 Police Plaza to protest the New York Police Department surveillance operations of Muslim communities on Nov. 18, 2011, in New York. Bebeto Matthews / AP file

The city also agreed to appoint a civilian representative, an attorney who would hold the position for at least five years, to make certain that safeguards in the settlement were followed. That appointee was to be part of a committee of police officials that discusses investigations to be opened, extended, or closed by the department’s deputy commissioner for intelligence.

The changes, in some instances, would have codified NYPD practices already in place.

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Haight, however, expressed concern over the terms in the settlement that governed the authority of the civilian appointee.

“I am constrained to conclude that the proposed role and powers of the civilian representative do not furnish sufficient protection from potential violations of the constitutional rights of those law-abiding Muslims and believers in Islam who live, move, and have their being in this city,” Haight wrote.

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The January settlement applied to two lawsuits connected to surveillance: Handschu v. NYPD, in which the police department was accused of violating a long-standing consent decree in investigating Muslims; and Raza v. City of New York, which, according to the ACLU, accused the NYPD of violating the state and U.S. constitutions by "singling out and stigmatizing entire communities of New Yorkers based on their religion.”

Haight said the NYPD’s adherence to what’s known as the Handschu guidelines “has been problematic at times.” Those guidelines, named after plaintiff Barbara Handschu, an attorney and social activist, date back to 1985 when rules were established on how intelligence can be collected during activities, including political and religious ones, protected by the First Amendment.

In the wake of the Sept. 11 terrorist attacks, the city moved to relax restrictions and oversight in the Handschu guidelines, a request granted by the court in 2003. Haight was the judge in that case, according to the Associated Press, as well as the one who signed off on the guidelines in 1985.

In his ruling last month, Haight cited an Aug. 23 report from the Inspector General’s office, which found that the NYPD continued investigations into political activity more than half the time, “even after approval of the operation expired.” He said the report was a “‘relevant factor’ in evaluating the proposed settlement.”

As part of his suggested revisions to the January agreement, Haight called for the Handschu Committee to review and monitor the NYPD’s compliance with the Handschu guidelines. He said the civilian representative should also participate in that process.

An excerpt of the decision detailing the court's reasoning behind rejecting the settlement.

Other proposed expansions to the civilian appointee’s role include:

  • Communicating with the court at any time about concerns that arise while in that position.
  • Filing quarterly confidential reports with the court, to be shared with lawyers for the city and plaintiffs in the two lawsuits, that describe the civilian monitor’s actions and observations during each period.
  • Continuing to serve after five years, unless the mayor applies to the court for permission to eliminate the position, and only if the court agrees.

Attorneys for the plaintiffs in both the Raza and Handschu lawsuits said in a statement Monday that they hope the judge’s ruling convinces the NYPD to create more safeguards against unwanted surveillance.

“We are eager to discuss the court’s suggestions with the NYPD and the city,” the statement reads. “For the sake of New York Muslims and all New Yorkers, we urge that reforms are implemented as soon as possible.”

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The city Law Department told NBC News in a statement that it will look for ways to address the judge’s concerns.

But, spokesman Nick Paolucci added, “to the extent that the Court’s decision is based in part on an Inspector General’s report containing findings with which both the City and Class Plaintiffs’ counsel variously disagree, we are disappointed that the settlement was not approved as the parties originally proposed.”

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