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.
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. Judge William J. Martini 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 defendants' 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 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 teh 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.)
Back in the District Court, the defendants answered the complaint, and the case is moving forward. David Postel - 03/31/2014
Daniel Fryer - 03/27/2016