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Case Name Hassan v. City of New York PN-NJ-0006
Docket / Court 2:12-cv-03401-WJM-MF ( D.N.J. )
Additional Docket(s) 14-1688  [ 14-1688 ]
State/Territory New Jersey
Case Type(s) Policing
Attorney Organization Center for Constitutional Rights
Muslim Advocates
Case Summary
In June 2012, several individuals and organizations affiliated with New Jersey's Muslim community filed this lawsuit in the U.S. District Court for the District of New Jersey under 42 U.S.C. § 1983 against the City of New York. The plaintiffs, represented by private counsel and the public ... read more >
In June 2012, several individuals and organizations affiliated with New Jersey's Muslim community filed this lawsuit in the U.S. District Court for the District of New Jersey under 42 U.S.C. § 1983 against the City of New York. The plaintiffs, represented by private counsel and the public interest organization Muslim Advocates, alleged they had been subjected to illegal surveillance (in New Jersey) by the New York City Police Department solely because of their religion. The case was assigned to Judge William J. Martini.

According to the complaint (amended once to include additional plaintiffs), the NYPD initiated a spying program in early 2002 to monitor Muslim life in and around New York City. The monitoring entailed taking photographs and videos, recording license plate numbers, and utilizing undercover officers and informants. The plaintiffs were among the targets of the program; numerous New Jersey mosques, as well as restaurants, retail stores, student associations, and grade schools associated with the Muslim community were also identified as targets of the NYPD. Non-Muslim communities had apparently not been subject to such monitoring.

The result, the plaintiffs claimed, was that the NYPD had discriminated against them on the basis of their religion, in violation of the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs further alleged the NYPD's surveillance--in singling out Muslims--was not neutral with respect to religion or general applicability and thus contravened the Free Exercise and Establishment Clauses of the First Amendment. Accordingly, the plaintiffs requested: (1) declaratory judgment that the NYPD's surveillance violates both the First and Fourteenth Amendments, (2) injunctive relief forbidding the NYPD from targeting the plaintiffs for surveillance solely because of their religion, and (3) an order to expunge all records relating to the plaintiffs obtained through the NYPD's surveillance.

The defendant moved to dismiss in December 2012. The court granted the motion on February 20, 2014, finding the plaintiffs had neither established standing nor pled facts sufficient to state a claim for discrimination. As to the issue of standing, the court held there had been no injury, explaining plaintiffs' claims mirrored those of the plaintiffs in Laird v. Tatum, 408 U.S. 1 (1972), where no injury was found--the asserted "chilling effect" was insufficiently strong to count. Moreover, the court held there was no causation, accepting defendant's argument that the Associated Press, not defendant, was principally responsible for plaintiffs' alleged injuries, because it was the AP that made the surveillance public and therefore known to the plaintiffs. Finally, as to the claims of discrimination, the Court explained that the plaintiffs, under Iqbal, needed to plead sufficient facts to show the NYPD's surveillance was conducted with a discriminatory--rather than investigative--purpose. But the court found the plaintiffs had not done so: "The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies." Hassan v. City of New York, 2014 WL 654604, at *7 (D.N.J. Feb. 20, 2014)

On October 13, 2015, the Third Circuit (Judge Thomas L. Ambro, Judge Julio M. Fuentes, and Judge Jane R. Roth) reversed the District Court's judgment and the case remanded to the District Court for further proceeding. Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015). In an opinion by Judge Ambro, the Third Circuit found sufficient particularized injury to support jurisdiction in the case. In addition, the Court found that the constitutional claims had been adequately pled:
While the City compares Plaintiffs' claims to the conclusory allegations in Iqbal, those were far from what we have here. In our case, Plaintiffs allege specifics about the Program, including when it was conceived (January 2002), where the City implemented it (in the New York Metropolitan area with a focus on New Jersey), and why it has been employed (because of the belief "that Muslim religious identity... is a permissible proxy for criminality," Compl. ¶ 36). The Complaint also articulates the "variety of methods" by which the surveillance is carried out. See, e.g., id.¶ 39 ("tak[ing] videos and photographs at mosques, Muslim owned businesses and schools"); id. ("monitor[ing Muslim] websites, listservs, and chat rooms"); id. ¶ 46 ("snap[ping] pictures, tak[ing] video, and collect[ing] license plate numbers of congregants as they arrive at mosques to pray"); id. ¶ 47 ("us[ing] undercover officers... to monitor daily life in [Muslim] neighborhoods ... and sermons and conversations in mosques"); id. ¶ 49 ("plac[ing] informants or undercover officers in all or virtually all MSAs"). These allegations are hardly "bare assertions ... amount[ing] to nothing more than a `formulaic recitation of the elements' of a constitutional discrimination claim."Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
In addition, the Court emphasized that the District Court had erred in its understanding of the Equal Protection Clause: "While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, "intentional discrimination" need not be motivated by 'ill will, enmity, or hostility' to contravene the Equal Protection Clause." Religious discrimination is unconstitutional, said the court, unless it satisfies the "strict scrutiny" test. Plaintiffs had said enough to survive dismissal under this test. The Court concluded:
What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight — that "[l]oyalty is a matter of the heart and mind[,] not race, creed, or color." Ex parte Mitsuye Endo, 323 U.S. 283, 302, 65 S.Ct. 208, 89 L.Ed. 243 (1944)."
(Judge Roth concurred, arguing that intermediate rather than strict scrutiny was applicable, but agreeing that the District Court erred and the case should be remanded to proceed towards trial.)

The case was reopened in the District Court on November 6, 2015. The defendants answered the complaint on January 15, 2016. On February 4, 2016, the parties met and conferred and agreed to resolve the matter through settlement. Settlement discussions continued for two years. One of the named plaintiffs voluntarily dismissed her claims on October 27, 2017.

The parties reported settlement of the matter at a February 20, 2018 settlement conference, and Judge Martini ordered administrative termination of the action. Pursuant to the order, the case was to be automatically dismissed 60 days from February 20, 2018, unless the parties filed for dismissal, or requested that the case be reopened for failure to consummate the settlement, prior to that time.

In the settlement agreement the defendants agreed to the following policy changes:
- the defendants shall act in accordance with the Revised Handschu Guidelines
- the defendants will provide the plaintiffs with the full draft of the Proposed Policy Guide; the defendants will meaningfully consider Plaintiffs’ recommendations and proposed revisions and will respond to them in writing or meet and confer with Plaintiffs’ Counsel on a timely basis after receiving recommendations and proposed revisions
- the defendants will make public, with necessary redactions, the final version of the Proposed Policy Guide within 60 days of finalizing revisions
- the defendants will include in the Proposed Policy Guide a written protocol setting forth the manner in which the NYPD Intelligence Bureau will fully comply, absent exigent circumstances, with N.J.S.A. 2A:156A-35 through -37 regarding proposed entry into New Jersey for law enforcement purposes
- the defendants agree that the Revised Handschu Training PowerPoint shall positively emphasize the City’s stated interest and obligation in protecting the Equal Protection and First Amendment rights of all individuals regardless of race, ethnicity or religion, and avoiding racial, ethnic and religious stereotyping
- the defendants will provide Plaintiffs’ Counsel the opportunity to provide suggested changes and comments which Defendant will meaningfully consider incorporating into the Revised Handschu Training PowerPoint
- the defendants agree to disclose all of the Zone Assessment Unit’s (f/k/a the
Demographics Unit) DD5s, “Weekly MSA Reports,” and all other documents created or
maintained by the NYPD Intelligence Bureau, except Handschu investigative statements, if any, regarding Plaintiffs to Plaintiffs’ counsel for their review and thereafter to use reasonable and diligent efforts to expunge them permanently from the NYPD Intelligence Bureau information systems. Defendant further agrees to seal and archive the Demographic reports of Muslim communities in New Jersey and make them available to members of the NYPD only with approval of the Deputy Commissioner for Legal Matters, Deputy Commissioner for Intelligence and Counterterrorism, Chief of Intelligence or the Executive Officer of the Intelligence Bureau.
- the defendants agree that a high-ranking official from the Intelligence Bureau, shall attend a public meeting in New York City where the plaintiffs and members of the Plaintiffs’ community in New Jersey will have the opportunity to speak directly with the designated representatives of the city
- the defendants will issue a statement affirming that it exercises care in the
conduct of investigations involving political activity 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
In addition, the defendants agreed to pay a combined $52,500 to the plaintiffs and $950,000 in attorneys' fees.

On April 11, 2018 Judge William J. Martini signed an order approving the settlement and dismissing the case with prejudice.

David Postel - 03/31/2014
Daniel Fryer - 03/27/2016
Sarah McDonald - 03/16/2018
Jake Parker - 07/11/2018
Anna Belkin - 10/29/2018


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Equal Protection
Establishment Clause
Free Exercise Clause
Content of Injunction
Discrimination Prohibition
Recordkeeping
Reporting
Required disclosure
Defendant-type
Law-enforcement
Discrimination-basis
National origin discrimination
Religion discrimination
General
Confidentiality
Disparate Treatment
Pattern or Practice
Racial profiling
Record-keeping
Terrorism/Post 9-11 issues
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) City of New York
Plaintiff Description Individuals and organizations affiliated with New Jersey's Muslim community who were surveilled by the New York City Police Department in a program implemented following the September 11 attacks.
Indexed Lawyer Organizations Center for Constitutional Rights
Muslim Advocates
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Damages
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Private Settlement Agreement
Order Duration 2018 - n/a
Filing Year 2012
Case Closing Year 2018
Case Ongoing No
Docket(s)
12-cv-3401 (D.N.J.)
PN-NJ-0006-9000.pdf | Detail
Date: 04/11/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PN-NJ-0006-0002.pdf | Detail
Date: 06/06/2012
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint [ECF# 10]
PN-NJ-0006-0003.pdf | Detail
Date: 10/03/2012
Source: PACER [Public Access to Court Electronic Records]
Notice of Motion to Dismiss the First Amended Complaint with Prejudice [ECF# 15]
PN-NJ-0006-0004.pdf | Detail
Date: 12/06/2012
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Brief in Opposition to Motion to Dismiss [ECF# 22]
PN-NJ-0006-0005.pdf | Detail
Date: 01/25/2013
Source: PACER [Public Access to Court Electronic Records]
Opinion [ECF# 40] (2014 WL 654604) (D.N.J.)
PN-NJ-0006-0001.pdf | WESTLAW | Detail
Date: 02/20/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion of the Court (804 F.3d 277)
PN-NJ-0006-0008.pdf | WESTLAW| LEXIS | Detail
Date: 10/13/2015
Source: Google Scholar
Order on Mandate; case reopened [ECF# 45] (D.N.J.)
PN-NJ-0006-0007.pdf | Detail
Date: 11/06/2015
Source: PACER [Public Access to Court Electronic Records]
Stipulation of Settlement [ECF# 88]
PN-NJ-0006-0009.pdf | Detail
Date: 04/05/2018
Source: PACER [Public Access to Court Electronic Records]
Stipulation and Order of Dismissal [ECF# 89] (D.N.J.)
PN-NJ-0006-0010.pdf | Detail
Date: 04/11/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Ambro, Thomas L. (Third Circuit)
PN-NJ-0006-0008
Falk, Mark (D.N.J.) [Magistrate]
PN-NJ-0006-9000
Martini, William J. (D.N.J.)
PN-NJ-0006-0001 | PN-NJ-0006-0007 | PN-NJ-0006-0010 | PN-NJ-0006-9000
Plaintiff's Lawyers Azmy, Baher (New York)
PN-NJ-0006-0005 | PN-NJ-0006-0009 | PN-NJ-0006-0010 | PN-NJ-0006-9000
Bhalla, Ravinder S. (New Jersey)
PN-NJ-0006-0002 | PN-NJ-0006-0003 | PN-NJ-0006-0005 | PN-NJ-0006-9000
Farah, Omar (New York)
PN-NJ-0006-0005
Katon, Glenn M. (California)
PN-NJ-0006-0002 | PN-NJ-0006-0003 | PN-NJ-0006-0005
Khera, Farhana (California)
PN-NJ-0006-0002 | PN-NJ-0006-0003 | PN-NJ-0006-0005 | PN-NJ-0006-0009 | PN-NJ-0006-0010
Lustberg, Lawrence S. (New Jersey)
PN-NJ-0006-0009 | PN-NJ-0006-0010 | PN-NJ-0006-9000
Schwarz, Ghita (New York)
PN-NJ-0006-0005
Defendant's Lawyers Cardozo, Michael A. (New York)
PN-NJ-0006-0004
Carter, Zachary W. (New York)
PN-NJ-0006-0009 | PN-NJ-0006-0010
Farrell, Peter Girard (New York)
PN-NJ-0006-0004 | PN-NJ-0006-0009 | PN-NJ-0006-0010 | PN-NJ-0006-9000

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