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Reversing the Tide Against Protest


Image by Brendan Themes
The proposed First Amendment Assembly Act would be a reversal of some of
NYPD's 2003 RNC-related restrictions.

New York has long prided itself as a place of protest, where dissidents of all stripes could take to the streets and be heard. But over the past several years, the right to demonstrate has taken a beating here. Now some City Council members are seeking to reverse that trend.

The council members have proposed a measure that would significantly modify the New York Police Department's new regulations governing permits for parades and demonstrations. The First Amendment Assembly Act, Intro 743, reasserts the council's right to legislate in this area and seeks to make the police more accommodating in allowing protests, demonstrations and other gatherings in public spaces. The stated goal of the bill is to promote "fair and transparent accommodation of competing uses of city public spaces, which means to encourage First Amendment assemblies by de-criminalizing mere participation in, or proximity to, them."

As the bill's sponsors work to garner support for it, a court settlement was reached on a key case involving protest in the city. On April 15, the New York Civil Liberties Union settled a lawsuit with the Police Department. As part of the agreement, the police pledged not to send horses into crowds of demonstrators without providing warning and giving crowds the opportunity to disperse. The department said it would not create penned spaces that "become traps," according to a New York Civil Liberties Union release, and "to assure that protestors have the information that they need to get into demonstration areas."

The suit covered three cases, including the massive anti-war protest of February 2003 where demonstrators were denied the right to march past the United Nations and were confined to pens on side streets. The settlement finalizes a temporary order issued by federal Judge Robert Sweet in 2004 just prior to protests of the Republican National Convention, barring the police from certain restrictive practices.

Under the settlement, two demonstrators, who alleged police mistreatment during the 2003 anti-war protest, were awarded $10,000 and $15,000 respectively.

Protests, Parades and Permits

The City Council bill introduction is the latest move in a long debate that arose out of mass bike rides by the group Critical Mass. Rebuffed by the courts in its effort to restrict the rides under existing regulations, the police department tried in 2006 to create new ones. The rules would have required permits for any group of 20 or more using a public street or sidewalk. They would have also given the police the right to arrest two or more people or vehicles that failed to observe traffic rules for "parading without a permit" in addition to whatever traffic infraction they committed.

While Police Commissioner Ray Kelly claimed that the rules would "in no way impinge on free speech," the administration withdrew them after an uproar from the politicians, the press and civil liberties groups. The Association of the Bar of the City of New York wrote a 19-page report calling the regulations "critically flawed."

In January 2007, the police department issued modified regulations, obligating groups of 50 or more to obtain parade or demonstration permits. While Christopher Dunn of the New York Civil Liberties Union called the new regulations "an improvement," he told the New York Times, "we still do not believe that lawful bike rides, with as few as 50 bikes, should require police permits."

Police spokesman Paul Browne responded, "Some critics will find fault no matter how reasonably the rules are drawn."

City Council Speaker Christine Quinn embraced the new rules, the paper said, promising to "ensure we strike the proper balance between protection of civil liberties with the need for public order."

The council had felt the rules proposed in 2006 " were too restrictive," said Anthony Hogrebe, deputy press secretary for the speaker. "The NYPD made changes based on the concerns we expressed, and we have continued to monitor the new regulations to make sure that both civil liberties and public safety are being protected."

The modified regulations, however, remain unacceptable to many civil liberties groups. The group www.radicalhomosexualagenda.org Radical Homosexual Agenda (click on "Letter to Quinn") demonstrated against Quinn, who is herself an out lesbian and former community organizer, complaining, "These rules justify the police suppression of spontaneous crowds."

What the Bill Would Do

Councilmember Rosie Mendez and eight of her council colleagues have responded to these and other concerns by proposing the First Amendment Assembly Act. "Groups wishing to assemble and stay within the limits of the law should not be required to obtain a permit," Mendez said in a release. "The First Amendment is our permit. Larger assemblies that want the police to assist in managing traffic along their route and ensure security should be able to apply for a permit through a fair and transparent process. This bill sets forth clear guidelines for each instance."

The bill makes the application process easier and requires the police department to respond in a timely fashion to requests for permits. If it turns down a request, the department must provide written reasons for the rejection. The bill also recognizes that some demonstrations arise spontaneously in response to breaking news, leaving no time to obtain a permit. In such instances, "the department shall, consistent with the interests of public safety, seek to assist, facilitate, and otherwise encourage the rights of persons to organize and participate in [assemblies]."

These changes would mark a substantial change in emphasis on civil liberties in a city whose government sharply restricted anti-war demonstrations in 2003, has denied requests for large rallies in Central Park and rounded up people they thought might protest when the city hosted the Republican National Convention in 2004.

Mark Taylor of www.assembleforrights.org Assemble for Rights, a coalition of 22 groups working for this bill, said, "It is a big deal to us that the City Council make these regulations, not the police department."

Washington, D.C.'s Approach

The New York bill is modeled on a law adopted in 2004 in Washington, D.C., another city that is the scene of large demonstrations.

Civil rights attorney Gideon Oliver, who played a role in drafting the legislation, said, "the most important thing it does is that it decriminalizes 'parading without a permit' and points to best practices not just in Washington, D.C., but in other cities with large populations." He added, "It will provide the police department and other city agencies with the kind of information they need to police events."

Oliver said that a big part of what motivated Washington to write the law was all the money its government had to pay out in lawsuits brought by aggrieved demonstrators. "But Bloomberg doesn't care and the taxpayers don't seem to" here in New York, he said.

Washington's law, according to Taylor, is "very clear with their police department that unless there's violence or major disruption, their job is to facilitate public assemblies and work with organizers. The police are not allowed to wade in and make indiscriminate arrests as the New York Police Department has several times." Many of the arrests New York police made at the Republican National Convention were thrown out of court on that basis.

While New York's department is fully capable of being cooperative in policing gatherings, Taylor said, "sometimes they have a different approach based on the content of speech," such as when the action is against "police violence and corruption" or involves gay activists or people of color.

Last May, for example, police surrounded about three dozen young people on their way to a wake for a teenage friend. The teenagers were cursed at, handcuffed and thrown into police wagons, Bob Herbert reported in the Times "According to the police, the youngsters at the scene were on a rampage, yelling and blocking traffic. That does not seem to be the truth."

The First Amendment Assembly Act may be a heavy lift in a City Council where term-limited members with their eyes on higher office are loathe to be perceived as either anti-cop or as second-guessing their judgment. While many council members hold press conferences and attend rallies complaining about police misconduct or restrictions on civil liberties, few take the initiative to write new laws, such as this one, that address the problem in a more systemic fashion.

The bill has been referred to Council Member Peter Vallone Jr.'s Public Safety Committee and has not been given a hearing date. Neither the police department nor Mayor Michael Bloomberg's office would comment on the legislation.

"We've made it clear to the speaker that if she wants to be a good leader, she can't ignore civil liberties," Taylor said. "We know she has done good things as Speaker, but she can't take a pass on this."

Mendez said Quinn is well aware that Mendez has been developing this legislation and worked closely with the council's legal staff in drafting it. She plans to work on getting a lot more sponsors for the bill and will be asking for a meeting with Quinn on it. "She has to balance needs," Mendez said. "But I expect honesty from her and I know I will get it."

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  

Document Jam Could Keep Immigrants from Voting


To many immigrants, the right to vote in the United States represents the full realization of their American dreams and a validation of many years of hard work and struggle. It means that they are active members of the American society and equal to native-born Americans -- at least in the eyes of the law.

This year, though, many immigrants who thought they would be able to vote in the November presidential election may not be eligible because of delays in processing their applications for citizenship. Because of a rapid rise in applications, the federal government has been taking an average of 16 to 18 months to review the applications, up from around seven months a year ago.

Even the Department of Homeland Security, which has responsibility for reviewing the applications, concedes that a problem exists. "There may be a significant number ... that have applied at this date that don't make it through" in time for the election Homeless Security Secretary Michael Chertoff told a recent congressional hearing

In an effort to pressure the administration to clear the backlog of citizenship applications by legal immigrants, the Puerto Rican Legal Defense and Education Fund (PRLDEF) in New York filed a class-act lawsuit against the Department of Homeland Security to demand that the immigration authorities to complete hundreds of thousands pending naturalization petitions in time for the new citizens to vote in November.

"It is insulting to the people who applied for citizenship," said Cesar Perales, PRLDEF's president and general counsel. "Especially after they learned English and passed the civics and history test to qualify for citizenship, they still have to wait. They should have all been ready to cast their vote as American citizens in November. ... It is very typical of the American government. They don't care about the immigrants. They don't want them to be a part of the American society."

In the lawsuit, PRLDEF demands that the U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security, process all application filed before March 26 by September 22.This would give the new citizens time to register to vote and meet the Bush administration's own goal of processing all applications within six months.

Beating the Fee Increase

The backlog springs largely from a sharp increase in 2007 in citizenship applications. A total of 460,294 citizenship applications were filed in July 2007 alone, the Associated Press reported, an increase of about 650 percent increase from July 2006. And that was not an isolated event. Throughout the first half of 2007, the citizenship agency received far more applications than it had in the same month a year earlier.

The large influx of applications is widely believed to be a result of the drastic fee increase last summer. On July 30, 2007, the fee for naturalization applications rose 69 percent, to $675 from $400. All other immigration-related application fees went up as well. Immigration officials justify the increases by noting that Congress has required that federal immigration and naturalization services be self-supporting.

Critics of the large fee hikes argue that they will place U.S. citizenship out of reach for many legal immigrants. But proponents counter that immigrants should be willing to save and sacrifice if they want to enjoy the benefits of being citizens.

Regardless of the merits of the increase, critics of the immigration agency said officials should have anticipated its effects. ""The fee hike is no small increase," said Norman Eng, communications director of the New York Immigration Coalition, an umbrella advocacy group. "So the fact they didn't expect so many people would try to get their application before the deadline. ...They only have themselves to blame for their lack of foresight."

Too Late to Vote

The backlog has affected immigrants in New York and around the country. More than 90,000 legal immigrants in New York State have been waiting for up to three years for their naturalization applications to be processed, PRLDEF said in a statement. Currently, 1.1 million foreign-born New Yorkers are eligible for citizenship, according to the New York Coalition.

In their statement, PRLDEF officials were particularly critical of the effect this could have on the election.

"We've already witnessed unprecedented numbers of Latinos going to the polls during this election season. Hundreds of thousands more are being denied that same opportunity," said Perales.

"Thousands of immigrants will be wrongly denied the most wonderful opportunity our government offers us, the ability to participate in the democratic process," said Foster Maer, one of PRLDEF's attorneys. "When people follow the rules, so should the government."

Breaking the Logjam

Two weeks after the lawsuit, immigration services director Emilio Gonzalez announced that his agency had lowered its projections for how long it would take to process naturalization applications. Citing the sharp increase in applications last summer, Gonzalez said the individuals who filed for citizenship during the summer of 2007 can anticipate an average processing time of 13 to 15 months, a three-month improvement from the 16 to 18 months projected in January, though far from the Bush administration's six-month target.

The immigration agency blames the Federal Bureau of Investigation for some of the delay, noting the FBI has to check all names. To address the backlog there, Citizenship and Immigration Services and the FBI announced a joint plan. The bureau said it has already dealt with all name check cases pending more than four years and by May hopes to complete all name checks pending more than three years. By June 2009, the FBI hopes to process 98 percent of all name checks within 30 days and to spend no more than 90 days to clear cases that are deemed difficult.

To speed its own processing, the immigration agency has hired retired employees and encouraged workers to work overtime voluntarily. The agency scheduled naturalization interviews on Saturdays and Sundays as well as after traditional business hours. It also plans to add nearly 3,000 new employees, place workers in offices with the greatest backlogs, quadruple the funding for overtime and use Asylum Office facilities and staff to conduct naturalization interviews.

"By the end of the year, I expect USCIS will have finished 36 percent more naturalization cases than last year without compromising national security or the integrity of the naturalization process," said Gonzalez.

But PRLDEF's Perales is not satisfied. "The review of these applications is not going to be done in time for these legal immigrants," he said. "They can't keep answering the question with the vague notion of national security."

Eng said that the government needs to send a more welcoming message. "There needs to be a commitment to immigrants and to encouraging immigrants to get involved and to be part of our civic life," he said. "The message that this backlog debacle sends is that we don't care about you. That's not the right message. That's not what this country is founded on."

Meanwhile, Gonzalez plans to step down on April 18 after serving as the director of Citizenship and Immigration Services since January 2006.

In an editorial, the New York Times said Gonzalez will leave behind a gummed-up bureaucracy and perhaps a million empty promises. "Those who know the citizenship system say it is 'dumbfounding' that Gonzalez and his agency did not foresee the surge, not only because the fees went way up, but also because 2008 is a presidential election year - always a time when would-be citizens hurry to get their papers in," reads the editorial.

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University. He is also a documentary filmmaker whose work focuses on immigrant and Asian American issues. 

Taking a New Look at Discrimination in New York


illustration
Gotham Gazette image by Ya-Hsuan Huang

Last month, New York City paid $21 million to settle a class action lawsuit for race-based employment practices in the city Department of Parks and Recreation. At the time of the lawsuit, more than nine in ten of the parks employees making less than $20,000 a year were black or Latino, while only 14 perent making $50,000 to $60,000 were black or Latino. When the Bloomberg administration agreed to the settlement, it nevertheless claimed it did not and does not discriminate.

Earlier this month, Senator Barack Obama called for open and honest action to address inequality, and in that spirit it is time for New York City's government to examine its own approach to practices. Instead of officials clamming up and insisting categorically that the city does not discriminate, what if policymakers, advocates and residents addressed the problem head on and agreed that policies that further racial and gender disparities -- intentionally or not -- are unacceptable?

This is the approach proposed by the Human Rights in Government Operations Audit Law (Human Rights GOAL) introduced earlier this month by Councilmembers Helen Foster and Darlene Mealy. This measure would put us one step closer to real equality for all New Yorkers.

To fend off inadvertent discrimination, Human Rights GOAL would do three things:

--Track how its policies affect different populations
--Remedy disparities as they emerge, rather than wait for a lawsuit to challenge them; and
--Include the affected, marginalized populations in implementing the law.

While New York City does have a stated policy of non-discrimination, it lacks the requisite tools to determine if that policy is being adhered to. No standard mechanism exists for knowing when or how government policies have disparate, negative impact on historically marginalized groups. And aside from the occasional audit by the Equal Employment Practices Commission, the only way discriminatory policies get fixed is when people undertake lengthy and costly lawsuits -- after the damage has been done.

The lawsuit settled by the parks department a few weeks ago, for example, might have been prevented if Human Right GOAL had been in effect. The lawsuit, dating back to 1999, was brought by over 3,000 black and Hispanic employees who charged that the department had passed them over for promotion in favor of white employees and paid them less.

After 14 months of negotiation, the Bloomberg administration agreed to pay more than $21 million and make "major changes in certain of its personnel practices." But the city staff and resources spent to defend the parks department in this lawsuit - and the anguish suffered by the victims of discrimination - is a much higher price than the stated settlement amount. And the open-ended promise to make changes and prevent something like this from happening again can only be fulfilled if it is accompanied by a concrete plan.

Explicit discrimination may be less common now than it once was, but, as Obama indicated in his speech, discrimination persists in seemingly neutral policies that create obstacles to equality.

The Precedent for Need

The discrimination documented in the park employees' suit was not an isolated incident. The City of New York has found itself in this position before.

--In 2005, the parks department settled a separate, federal discrimination lawsuit claiming that it routinely bypassed black and Hispanic employees for promotion.

--A year ago, a lawsuit by the U.S. attorney's office named the Department of Transportation for discriminating against women in its hiring practices. In the last 10 years, the lawsuit alleged, the department never hired a single female bridge painter despite the applications of a number of qualified women. The transportation department claimed to have a "gender neutral" hiring policy.

--Last year the federal Department of Justice sued the Fire Department of the City of New York charging that its written examinations discriminate against blacks and Hispanics applying to be entry-level firefighters.

Less documented but even more pervasive are the disparities reflected by the unequal application of municipal services. For example, while black and Latino youth are arrested more for use of illegal substances like marijuana, the city's own health department reports that white youth are more likely to use marijuana. In the child welfare system, black and Latino youth comprise an overwhelming 87 percent of the children in foster care. In 2006, 43 percent of black students and 41 percent of Latino students in New York City graduated on time, compared to 67 percent of white students and 68 percent of Asian students.

In one of the saddest facts, the infant mortality rate of children citywide is 5.9 per 1000 births, compared to 10.5 per 1000 for African American children.

It's not the official New York City policy to under-employ or under-serve certain groups, but as a result of seemingly benign policies and their implementation, men, women and youth wind up the repeated victims of de facto discrimination.

Setting a GOAL

Human Rights GOAL addresses disparities by drawing on two human rights treaties signed by the U.S.: the International Conventionon the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. Notably, both treaties prohibit any policies and practices that are discriminatory in effect even if that is not in purpose. This definition of discrimination is broader than the definition in the existing civil rights law, which requires evidence of intent - and often a lawsuit - to determine the presence of discrimination.

Upon passage, Human Rights GOAL would mandate that all city agencies undergo an audit to determine what kind of data they already collect, what existing mechanisms are in place to address discriminatory practices, and to what extent agencies engage those most affected by their policies in evaluating and improving them. Based on the idea that the first step to remedy discriminatory practices is to identify and determine the extent of the problem, the bill requires all city agencies to collect and publish data on employment and service delivery, then use this data to analyze their programs to identify if they have a discriminatory effect.

While some agencies do track certain numbers -- hiring practices have gradually become better documented thanks to Equal Employment Opportunity policies -- it is notoriously difficult to know what kind of information the city tracks in other areas, and, if so, how one gets that information. Indeed, many advocates supporting Human Rights GOAL list getting access to data -- numbers on race, gender, immigration status, religion and more -- as the biggest obstacle they face in conducting research about the very communities they seek to help. These groups have filed Freedom of Information Act requests, only to be repeatedly ignored by the city.

Last year, the New York Civil Liberties Union, New York Times and several others filed a lawsuit against the police department for not sharing electronic data on police stops. The department has since released the data -- but sent it to a third party in another state. Meanwhile, in its annual firearms report, the police break down information on dogs that have been harmed by police gunfire by breed but neglects to do the same by race for people it has harmed.

Judging from departmental reports and the Mayor's Management Report, other agencies fare better. The Department of Health and Mental Hygiene, for one, collects disaggregated data and makes it available. This should be a practice for all departments -- parks, buildings, transportation, education, environmental protection, children's services and more.

With data in hand, these agencies would then publish a human rights analysis, and develop an action plan targeted at fixing trouble spots. The action plan might entail hiring more broadly, offering better housing or legal services to certain communities, or expanding access to good schools.

Finally, to oversee implementation, Human Rights GOAL would create a human rights taskforce of civilians and city representatives. The taskforce would do some of the heavy lifting to carry out the audits, the assessment of areas for improvement, and what an action plan should look like.

Freedom from discrimination is a basic human right, one New York City has a history of recognizing. But it should not rest on its laurels - a progressive city remains progressive only by constantly searching for ways to expand equality and hold itself accountable.

Across the country, San Francisco passed a version of Human Rights GOAL in light of unfair hiring and service practices. The city has now increased the number of women hired in non-traditional positions and even appointed the first woman to its airport commission.

For the sake of New York and its residents, it is time we employ policies that protect our basic human rights before agencies get slapped with hefty law suits. It is time to turn this human rights bill into law.

Ejim Dike is director of the Human Rights Project at the Urban Justice Center.  



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