Handschu v. Special Services Division

787 F.2d 828, 4 Fed. R. Serv. 3d 965, 1986 U.S. App. LEXIS 23873
CourtCourt of Appeals for the Second Circuit
DecidedApril 9, 1986
DocketNos. 502 through 508, Dockets 85-7480, 85-7486, 85-7488, 85-7496, 85-7498, 85-7500 and 85-7502
StatusPublished
Cited by17 cases

This text of 787 F.2d 828 (Handschu v. Special Services Division) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Handschu v. Special Services Division, 787 F.2d 828, 4 Fed. R. Serv. 3d 965, 1986 U.S. App. LEXIS 23873 (2d Cir. 1986).

Opinion

VAN GRAAFEILAND, Circuit Judge:

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 Investiga[832]*832tion 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 iimited 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 claimed violation of the Guidelines in order that the defendants may have an opportunity to cure violations before contempt proceedings are initiated against them. Finally, the stipulation provides that it “constitutes a full and final adjudication with respect to the claims of the plaintiff class for injunctive and declaratory relief as stated in the complaint” and that “[a]ny claim based solely upon the collection and/or retention of information about a person or an organization by the New York City Police Department is also settled by this stipulation.”

Appellants contend initially that notice of the proposed settlement was inadequate, both in content and in visibility. We disagree. Notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency [833]*833of the action and afford them an opportunity to present their objections,” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and must express no opinion on the merits of the settlement, In re Traffic Executive Association-Eastern Railroads, 627 F.2d 631, 634 (2d Cir.1980). Subject to these requirements, however, the district court has virtually complete discretion as to the manner of giving notice to class members. See Fed.R.Civ.P. 23(e); 7A C. Wright & A. Miller § 1797 at 237.

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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 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 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 Center, Morton Sobell, Helen L. Sobell, Coalition for Peoples Alternative, Youth International Party, Richard Goldenson, William Appleman Williams, Sigmond Diamond, Richard Falk, Robert M. Fass, George W. Webber, Lambda Legal Defense & Education Fund, Inc., Freedom to Write Committee of Pen American Center, Annette Rubinstein, Charles Rivers, Lucius Walker, Michael Rubin, National Conference of Black Lawyers, Charlene Mitchell, United States Peace Council, Labor Research Associates, National Alliance Against Racist and Political Repression, and National Emergency Civil Liberties Committee, and National Lawyers Guild, Objectors-Appellants
787 F.2d 828 (Second Circuit, 1986)

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Bluebook (online)
787 F.2d 828, 4 Fed. R. Serv. 3d 965, 1986 U.S. App. LEXIS 23873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handschu-v-special-services-division-ca2-1986.