CURRENT AND PROPOSED MODIFICATIONS OF HANDSCHU GUIDELINES REQUIRED BY SETTLEMENT CURRENT GUIDELINES OR PRACTICE INVESTIGATIVE PREDICATE (BASIS FOR INVESTIGATION) Allegation or information indicating possibility of unlawful activity PROPOSED MODIFICATION OF GUIDELINES Language clarifies current NYPD practice: “The possibility of unlawful activity to initiate a Preliminary Inquiry requires an allegation or information that is articulable and factual. However, such allegation or information need not have been verified as true or accurate” Establishes presumptive duration for an investigation conducted under the Guidelines: No presumptive duration. However, practice is for Preliminary Inquiry not to exceed two years INVESTIGATIONDURATION - Preliminary Inquiry not to exceed 18 Months Full Investigation not to exceed 3 years Terrorism Enterprise Investigation not to exceed 5 years, except when subject is a federally designated foreign terrorist organization Note: presumptive periods of duration may be exceeded in sole discretion of the Deputy Commissioner of Intelligence, after consultation with Handschu Committee. Current NYPD policy and practice: PROTECTION OF CONSTITUTIONAL RIGHTS Investigations involving political activity conform to the guarantees of the Constitution, that care be exercised in the conduct of those investigations so as to protect constitutional rights, and that matters investigated be confined to those supported by a legitimate law enforcement purpose To anticipate or prevent unlawful activity, the NYPD must, at times, initiate investigations in advance of unlawful conduct. It is important that such investigations not be based solely on activities protected by the First Amendment. NYPD Inserts language that memorializes the current NYPD practice explicitly stating that: “care be exercised in the conduct of those investigations so as to protect constitutional rights, including the right to be free from investigation in which race, religion, or ethnicity is a substantial or motivating factor.” and “that investigations not intrude upon rights of expression or association in a manner that discriminates on the basis of race, religion or ethnicity, where such discrimination is a substantial or motivating factor for the investigation.” January 7, 2016 1 CURRENT AND PROPOSED MODIFICATIONS OF HANDSCHU GUIDELINES REQUIRED BY SETTLEMENT CURRENT GUIDELINES OR PRACTICE No committee is obligated. HANDSCHU COMMITTEE However, NYPD established an internal Handschu Committee of advisors consisting of Intelligence Bureau Executives and personnel assigned to and including the Deputy Commissioner of Legal Matters to review and discuss requests to Open/Extend or Discontinue Investigations on a monthly basis. None CIVILIAN REPRESENTATIVE ON HANDSCHU COMMITTEE PROPOSED MODIFICATION OF GUIDELINES Language formalizing the current NYPD practice: Establishes monthly Handschu Committee: - Members may attend and participate at meeting during which investigations are presented for opening, extension or closure by the Deputy Commissioner for Intelligence. - Members are provided investigative statement(s) pertaining to each proposed opening, extension or closing for the monthly meeting. - At the monthly meeting, any member of the Handschu Committee may ask questions and offer opinions regarding the opening, extension or closure of an investigation presented A Civilian Representative shall be on the Handschu Committee who may attend and participate in the monthly meetings and: - is an attorney, - was never an employee of the NYPD, - appointed by the Mayor in consultation with Police Commissioner, - may be replaced by the Mayor for good cause, and with advance notice to Class Counsel Position will exist for a minimum of five years. After initial fiveyear period, position of Civilian Representative will continue unless abolished or modified by the Mayor (with notice to Class Counsel) NYPD January 7, 2016 2 CURRENT AND PROPOSED MODIFICATIONS OF HANDSCHU GUIDELINES REQUIRED BY SETTLEMENT CURRENT GUIDELINES OR PRACTICE NYPD may use any lawful investigative technique permitted by the guidelines. The choice of investigative techniques is a matter of judgment considering: The NYPD may use any lawful investigative technique permitted by these guidelines. The choice of investigative techniques is a matter of judgment, which should take account of: - - CHOICE OF INVESTIGATIVE TECHNIQUE - objectives of the investigation and available investigative resources; intrusiveness of a technique, considering such factors as the effect on the privacy of individuals and potential damage to reputation; the seriousness of the unlawful act; and the strength of the information indicating its existence or future commission of the unlawful act. Although not required under the extant Handschu guidelines, the NYPD considers the potential effect of investigative techniques on the political or religious activity of individuals, groups, or organizations who, although not a target of the investigation, are affected by or subject to the technique. NYPD PROPOSED MODIFICATION OF GUIDELINES Language codifying the current NYPD practice: - - - January 7, 2016 the objectives of the investigation and available investigative resources; the intrusiveness of a technique, considering such factors as the effect on the privacy of individuals and potential damage to reputation; the potential effect on the political or religious activity of individuals, groups or organizations and the potential effect on persons who, although not a target of the investigation are affected by or subject to the technique; the seriousness of the unlawful act; and the strength of the information indicating its existence or future commission of the unlawful act. 3