Memorandum Of Understanding Regarding The
Regulation And Policing Of First Amendment Activity
At The Republican National Convention Of 2004Background Every four years the electoral process leading to the choice of President and Vice-President provides the occasion for a national conversation about our country’s policies, values and aspirations. The national conventions held by the Republican and Democratic parties are central to that electoral process and, therefore, to our national discourse. The conventions bring together delegates from each state to nominate the parties’ presidential and vice-presidential candidates and to rally support among the general public. New York City will serve as a principal focal point for the political discourse related to the 2004 presidential election. The Republican National Convention (RNC) will take place at Madison Square Garden in New York City at the end of August and in early September. That event promises to generate a groundswell of political protest activities and expressive events. Groups from all over the country will be coming to New York City to express both opposition to and support for the policies of the Bush administration. They will seek to do so by holding rallies, participating in marches and handing out leaflets in an effort to convey their ideological positions on the pressing issues of the day. Peaceful political demonstrations in support of and in opposition to candidates and public policy positions are entitled to plenary protection under the First Amendment. And the signatories to this Memorandum of Understanding are committed to the proposition that robust and unfettered public discussion of public issues is a civic virtue that must be protected and permitted to the greatest extent possible, subject only to reasonable time, place and manner limitations. City officials are charged with a duty both to protect public safety and to uphold the rights of free speech and expression. In acknowledging these dual responsibilities, the signatories to this memorandum believe there is no inherent conflict between the duty to protect public safety and the duty to uphold the right to engage in lawful political activity. It is intended that this Memorandum of Understanding will be used to facilitate an informative dialogue between City officials and individuals and groups regarding the regulation of expressive activities at the RNC. And it is the hope of the signatories to the memorandum that this dialogue will encourage a good-faith effort by the City administration to accommodate expressive activities and will also encourage the free exercise of speech, expression and association in a lawful manner. In order to effectuate the intent of this Memorandum of Understanding, its signatories hereby agree upon certain ground rules that will govern the regulation and policing of expressive events that will take place in connection with the RNC. These ground rules pertain to four matters: first, the City’s regulation and administration of expressive activity, generally; second, whether a “protest free zone” will be created in proximity to Madison Square Garden, where the Republican National Convention will take place; third, the use of pens and barricades and the use of force by police at events involving expressive activities that take place in locations surrounding Madison Square Garden; and fourth, the surveillance and infiltration of political groups that seek to engage in peaceful expressive activities at or in conjunction with the Republican National Convention. I. Regulation And Administration Of Expressive Activity, Generally The regulation of expressive activity raises a host of issues that various city officials and agencies must address. These issues include the review of permit applications for a public demonstration, rally or march; issuance of permits that dictate the location or route and the duration of such events, as well as the use of amplified sound; and the coordination of multiple and simultaneous demonstrations. The exercise of the First Amendment rights of speech, expression and association is directly in the service of democracy. And for this reason it is incumbent upon City officials to undertake the regulation of expressive activity in a manner that facilitates the full and free exercise of these constitutional rights. However, as of June 6, 2004, the City administration has approved only one permit application for a public demonstration related to the RNC. The administration has also denied a permit to the organization United for Peace and Justice, which has sought to hold a march culminating in a rally in Central Park. The signatories to this Memorandum of Understanding recognize the importance of creating an environment that fully accommodates the exercise of lawful expressive activity on the occasion of the 2004 Republican National Convention. Accordingly it is hereby AGREED by the undersigned that New York City officials, including the mayor, police commissioner and parks department commissioner, will–- - Announce immediately to those applying for permits and to the public a schedule by which decisions will be made regarding permit applications for demonstrations related to the RNC. The City administration will not impose deadlines without reasonable justification regarding the filing of permit applications.
- Take action on permit applications as quickly as possible. Should a permit application be denied in part or in whole, the City administration will explain in writing the basis for the denial and will offer the applicant a suitable alternative.
- Take immediate steps to disseminate information to the public, within New York City and beyond, about the types of Convention activities for which permits are required as well as the application procedures for obtaining such permits. The City administration will accommodate groups and individuals from outside of New York City who may be seeking permits and who may not be familiar with the City’s permit rules.
- Publicize on the City’s website and elsewhere a schedule of Convention demonstrations and marches for which permits have been granted, including the date, time, and location of the approved events.
- Implement a program that trains and instructs police officers and others involved in handling demonstrations related to the RNC about the First Amendment rights of persons and groups that organize and participate in demonstrations, rallies, and marches. Before starting that training, the City administration will make a curriculum and training materials available to interested groups for review and comment. This training program on First Amendment rights will be incorporated into the police department’s ongoing training program.
II. Protest-Free Zones
It has been reported that officials within the Bush Administration have, in the past, insisted upon and secured what have been described as “protest-free zones.” These so-called protest-free zones are areas surrounding the President or other public officials to which groups and individuals engaged in peaceful demonstrations are denied access. The use of this controversial practice has become increasingly widespread over the past decade. These buffer zones in effect prevent persons from participating in lawful public demonstrations within sight and sound of the object of such demonstrations. The designation of these protest-free zones often seem to be motivated not by a need to protect the security of the President but by a desire to prevent news photographers and television cameras from capturing any opposition to the President at any presidential event. The signatories to this memorandum recognize that special measures are required to protect the safety and security of certain public officials who attend the Republican National Convention; however, such safety concerns should not become a pretext for security measures that unduly frustrate or deny participation in protected First Amendment activity. Security concerns may require reasonable time, place and manner limitations regarding the proximity of even peaceful demonstrations to the object of such demonstrations; well-settled First Amendment doctrine, nevertheless, holds that, absent extraordinary circumstances, individuals and groups seeking to engage in peaceful protest must be permitted to do so in close proximity to and within sight and sound of the object of their protests. Accordingly, it is hereby AGREED that consistent with reasonable security concerns the City administration will make every effort to allow demonstrations to take place in close proximity to and within sight and sound of Madison Square Garden or other locations where Convention activities take place. III. Barricades, Pens And Use Of Force There have been recurring complaints in recent years regarding the manner in which the New York Police Department has used metal or wooden barricades as a means of controlling access to as well as mobility of crowds at public demonstrations. A recent and dramatic demonstration of the conduct giving rise to such complaints occurred in New York City on February 15, 2003. On that day the organization United for Peace and Justice sponsored a massive anti-war rally on the East Side of Manhattan. The NYPD employed interlocking metal fences to erect a perimeter barricade on both sides of First Avenue, along the length of the demonstration site, as well as block-long pens for containing demonstrators at the demonstration site. As documented in the NYCLU report “Arresting Protest,” the perimeter barricades as well as the pens created significant obstacles to those seeking to exercise their First Amendment rights at the demonstration. The perimeter barricades were designed to funnel protesters into the demonstration site through a single, although movable, entry point located at a cross street leading into First Avenue. As the avenue filled with demonstrators, the police directed demonstrators to an entry point farther north. However, police officials had no effective way of communicating to demonstrators about the entry point to the demonstration. This failure to communicate and the inconsistency of the information conveyed created enormous frustration among those seeking to reach the demonstration site. In many reported instances police officers directed people to a particular cross street, at which point they were told by other police officers to proceed farther north to another cross street, where the same scenario would repeat itself. There were many other reported instances in which police officers failed even to inform people that they could access the demonstrate site at point farther north. Moreover, as more and more people attempted to reach the demonstration entry point, access routes to the demonstration area became increasingly impassable. Police officers responded by employing overly aggressive crowd-control techniques, which prevented many persons from reaching the demonstration. The NYPD also set up block-long rectangular pens in order to contain the movement of demonstrators. These metal pens limited free movement into and out of the demonstration area and were also the source of great inconvenience and safety concerns. As administered by the NYPD on February 15, 2003, the pens became a source of provocation, creating tension and hostility between police officers and demonstrators. Police officers herded individuals into the pens; once a pen was deemed to be “full,” the officers closed the pen and refused to let anyone else enter that pen. This arrangement also made it difficult for individuals to leave the pen in order, for example, to use a public restroom. And if individuals did manage to leave, they were not permitted to return to that pen in order to rejoin family or friends. Chaos and confusion ensued. While some of the pens were far from filled to capacity, others were dangerously overcrowded; and despite the threat of injury, police officers ordered the demonstrators to stay inside the metal pens and used barking police dogs to enforce their directives. Accordingly, it is hereby AGREED by the undersigned that the following rules will apply with respect to the use of pens and barricades in the policing of demonstrations during the RNC:- The City administration will make every effort to facilitate the ability of people to gain access to Convention demonstrations. To the extent the administration uses barricades to close streets and sidewalks leading to demonstration sites, the administration will take affirmative steps to inform event organizers and members of the public about how otherwise to attain access to the demonstrations. These steps may include providing written information and maps to event organizers, posting access information on City websites, issuing press releases or public service announcements regarding access routes, and providing clear and accurate access information to members of the public at locations that are closed.
- The City administration will minimize the use of barricades to confine the movement of people at demonstrations. The administration will not use four-sided enclosures known as “pens” except in limited circumstances based on a legitimate and reasonable security concern. In such limited circumstances the administration will ensure that such pens have openings sufficient to permit people to enter and exit pens freely and to move around or leave a demonstration site and to reenter pens provided there is room. The administration will further ensure that police officers are properly trained and instructed about facilitating ingress and egress when pens are used.
- The City administration will make every effort to avoid the use of force -- including the use of horses, pepper spray, or other instruments of force -- in dealing with demonstrators at Convention events. To the extent the use of force becomes necessary for legitimate law-enforcement purposes, the administration will ensure that it is used only to the minimal extent necessary. In any situation in which the City intends to use mounted officers to disperse demonstrators, it will do so only after providing the demonstrators with clear warnings and after ensuring that demonstrators have been given an opportunity to disperse and in fact have the ability to do so.
IV. Surveillance And Infiltration Of Politcal Groups In response to tactics of political surveillance and infiltration employed by the NYPD’s intelligence unit in the 1960s, a lawsuit was filed seeking to curtail the excessive and unlawful use of these practices. The suit known as the Handschu case was directed at the City of New York, its Police Commissioner and the Intelligence Division of the New York City Police Department (NYPD). The Handschu suit identified seven specific forms of police conduct: (1) the use of informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5) summary punishment; (6) intelligence gathering; and (7) electronic surveillance. And the complaint alleged, inter alia, that these police practices had had a “chilling effect” upon the exercise of freedom of speech, assembly and association; that they also violated constitutional prohibitions against unreasonable searches and seizures; and that they abridged rights of privacy and due process. The suit requested declaratory and injunctive relief to curtail these practices. The Handschu case was ultimately settled in a 1985 Consent Decree. By its terms, the Decree imposed both substantive and procedural requirements in its efforts to prevent the sorts of abuse discussed above and identified in the Handschu Complaint. As a substantive matter, the Decree prohibited the NYPD from “commencing an investigation” into the political, ideological or religious activities of an individual or group unless “specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime….” The Decree also imposed various procedural limitations as a check against abuse and as a vehicle for maintaining a “paper trail” in the event that violations of the Guidelines were to arise. In September 2002, the NYPD moved to modify the 1985 Consent Decree in the Handschu case. In a decision issued in February 2003, Senior United States District Judge Charles S. Haight Jr. held that the NYPD should be permitted to substitute the investigative standards employed by the FBI as set forth in the Guidelines on General Crimes, Racketeering Enterprise and Terrorism Investigations issued by Attorney General Ashcroft in May 2002 for the substantive and procedural standards previously set forth in the 1985 Consent Decree. In essence, Judge Haight approved preliminary inquiries of political activities by the NYPD in circumstances where there is “information … which indicates the possibility of criminal activity.” The new Guidelines suggest that a preliminary inquiry must be authorized by the commanding officer of the criminal intelligence office of the NYPD with notification for final approval by the Deputy Commissioner of Intelligence. But this suggestion is somewhat ambiguous. The parties to this memorandum seek to clarify this potential ambiguity and to require explicitly that such authorization must be secured; that it must be in writing; and that a paper trail of such authorization must be maintained in the office of the Police Commissioner. By not addressing explicitly the documentation of police inquiries and investigations into political or religious groups and organizations, the new Handschu guidelines omit important procedural protections that are necessary to ensure oversight and accountability regarding these police activities. This omission should be by corrected by this Memorandum of Understanding. Accordingly, it is hereby AGREED by the undersigned that- The NYPD will not engage in the investigation or surveillance of religious or political organizations based solely upon the First Amendment activities of persons involved or associated with such organizations.
- All authorizations required by the new Handschu Guidelines will be reduced to written memoranda and will be maintained in the office of the Police Commissioner of the City of New York and may be reviewed by New York City’s Corporation Counsel and its Mayor at their discretion.
- At the conclusion of the Republican National Convention, the signatories to this agreement shall issue a joint report on the use of intelligence gathering by the NYPD in connection with the Republican National Convention.
SignaturesThe following Parties have agreed to the terms of this Memorandum of Understanding: The Hon. Michael Bloomberg
Mayor, New York City The Hon. Major Owens
Member of Congress, 11th CD-NY The Hon. Edolphus Towns
Member of Congress, 10th CD-NY The Hon. Eliot Engel
Member of Congress, 17th CD-NY The Hon. Jerrold Nadler
Member of Congress, 8th CD-NY The Hon. Carolyn Maloney
Member of Congress, 14th CD-NY The Hon. Jose Serrano
Member of Congress, 16th CD-NY The Hon. Charles Rangel
Member of Congress, 15th CD-NY Please note: names in bold letters are actual signatories; others are reviewing the MOU. | 
