How Much NYPD Spying Is Too Much NYPD Spying?

Black Lives Matter protesters are arrested <a href="http://gothamist.com/2015/07/23/arrests_sandra_bland_nypd.php#photo-1">on July 22, 2015</a>

On Tuesday, in a sunny courtroom overlooking the Manhattan skyline, a federal judge considered how much NYPD spying is too much.

Judge Charles Haight of the Southern District of New York is deciding whether to approve an agreement reached between civil rights groups and the NYPD in Handschu v. Special Services Division and Raza v. City of New York.

At a time when anti-Muslim sentiment has never been higher, and when the threat of foreign and domestic terrorism continues to be used as justification for increasing levels of surveillance, do the settlement terms represent substantive progress or an empty compromise?

Tuesday’s fairness hearing allowed members of the public to weigh in on the terms of the agreement. Many spoke in favor of the settlement moving forward as quickly as possible, and noted that it would provide tangible, if limited relief to the city’s half-a- million-plus Muslim residents, Black Lives Matter demonstrators, and all activists, protesters, and politically-minded New Yorkers who have found themselves under the NYPD’s gaze.

The Handschu case has been ongoing for over forty years, and began when civil rights attorneys sued the NYPD to stop its “red squads” from spying on groups like the Black Panthers.

Raza, which focused on the NYPD’s “discriminatory and unjustified surveillance of New York Muslims,” was filed in June 2013.

The two lawsuits were eventually combined, and a settlement was announced in January. Under the settlement, the NYPD will be barred from engaging in investigations in which race, religion or ethnicity play a “substantial or motivating factor.” Investigations will have presumptive time limits and be subject to six-month reviews.

Perhaps most significantly, the settlement will also formalize the creation of a Handschu Committee, whose members “may attend the monthly meetings in which investigations are presented for opening, extension or closure,” although the final decision will be left to the Deputy Commission for Intelligence.

In addition to eleven high-level NYPD officials, the Committee will include a civilian representative, who will be empowered to contact the Police Commissioner—or in certain cases, the Handschu judge—if she or he believes that investigations are violating the guidelines.

Muslim women participate in the 2nd annual New Horizons gathering on June 5, 2011 in Brooklyn (Getty Images)

Jethro Eisenstein, one of the original attorneys on the Handschu case, urged the judge to approve the settlement quickly, and invoked Senator Ted Cruz’s calls for police to “patrol and secure Muslim neighborhoods before they become radicalized.”

“We can have effective law enforcement while providing New Yorkers with protection against unwarranted investigation based on race, faith or ethnicity,” said Eisenstein.

Hina Shamsi, an ACLU lawyer on the Raza suit, echoed Eisenstein’s sentiments, stressing that the settlement achieved “immediate, concrete and beneficial” changes for city residents, and also offered a “platform for more necessary reforms.” Peter Ferrell, an attorney for the City, offered a few remarks in support of the settlement.

Mohammad Elshinawy, one of the plaintiffs in Raza, told the court that he had long suspected the NYPD was spying on him. In 2013, the Associated Press revealed that police had watched Elshinawy for years, even sending an informant to infiltrate his wedding and videotape his guests.

“I felt like I was living in a house without walls,” said Elshinawy.

Many community members concurred that the settlement should move forward as quickly as possible. “I am overwhelmed by their courage,” said Arab American Association Executive Director Linda Sarsour, of the Raza plaintiffs. She said that NYPD spying had not only chilled religious practice in Muslim communities but also but free speech and political organizing. “We don’t have the luxury to wait anymore,” she said.

As the day wore on, though, many other speakers expressed concerns about the terms of the settlement and asked Judge Haight extend the comment period.

Afaf Nasher, the Board President of New York’s Council on Islamic Relations, said the settlement could be “binding upon future litigation” and explained to the judge that an overwhelming fear of the police had hampered efforts to educate Muslim communities about the settlement.

“People think attendance [at workshops] will make them susceptible to surveillance,” Nasher said.

Several people raised questions about the limited role of the civilian representative on the Handschu Committee, including Ravi Raghbir of the New Sanctuary Coalition of NYC, who said that that the proposed position had “no teeth.” Others worried the new guidelines did little to prevent the “entrapment” of vulnerable Muslims by undercover cops or informants, and pointed to what they said was subjective language that would do little to hamper police misconduct.

Cheikh Ahmed Mbareck, the executive director of the Islamic Leadership Council of New York, told Judge Haight that he needed more time to ensure that the diverse and multilingual Muslim communities of the city understood the proposed settlement and its implications, and had the opportunity to share their views. At Tuesday’s hearing Judge Haight appeared open to extending the comment period until August, after Ramadan.

“The Raza lawyers now defend their plaintiffs and their own interests,” Ahmed said, turning to Judge Haight.

“The only one who can defend us now, is you.”

Aviva Stahl is a Brooklyn-based journalis. Follow her @stahlidarity.