Appeals Court Opposes Religious Profiling, Reinstates Lawsuit Against NYPD Spying
A federal appeals court reversed a decision and reinstated a lawsuit brought by American Muslims in New Jersey, who claim the New York Police Department violated their constitutional rights when police engaged in religious profiling and targeted them with surveillance.
The Third Circuit Court of Appeals found the American Muslims had standing to bring a lawsuit against the City of New York. The appeals court believed the lawsuit presented “constitutional concerns that must be addressed and, if true, redressed.” [PDF]
Quoting a dissenting opinion by Justice Robert Jackson in the Korematsu decision, which granted the Executive Branch the authority to round up Japanese Americans and put them in camps, the court argued it was the court’s job to “apply only law” and to “abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.”
“What occurs here in one guise is not new,” the appeals court asserted. “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.'”
Syed Farhaj Hassan, a plaintiff in the case, reacted, “I am so pleased the court recognized our claim that the NYPD is violating our basic rights as Americans and were wrong to do so. No one should ever be spied on and treated like a suspect simply because of his or her faith, and today’s ruling paves the path to holding the NYPD accountable for ripping up the Constitution.”
The Center for Constitutional Rights and Muslim Advocates brought the lawsuit on behalf of Hassan, a New Jersey resident and U.S. soldier, who served in Iraq. He worships at the Masjid-e-Ali mosque, Mehfile Shahe Khorasan mosque, and the Imam-e-Zamana Foundation of North America mosque.
Each of the mosques are in New Jersey and became targets of the NYPD’s surveillance program, which the Associated Press revealed in its Pulitzer Prize-winning reporting.
Hassan “decreased his mosque attendance significantly since learning that the mosques he attends have been under surveillance by the NYPD” because of the “reasonable and well-founded fear that his security clearance would be jeopardized by being closely affiliated with mosques under surveillance by enforcement.”
Muslim student associations were also revealed by the AP to be targets of NYPD surveillance. Officers spied on students at schools beyond the city limits at the Ivy League colleges of Yale and the University of Pennsylvania. They conducted operations at the Newark and New Brunswick campuses of Rutgers. In fact, officers had a “safe house in an apartment not far from campus” until a “building superintendent stumbled upon the safe house” and thought it was “some sort of a terrorist cell” and called a “police emergency dispatcher.”
“These MSAs were singled out for surveillance by the NYPD simply because their membership is made up of Muslim students. Student organizations affiliated with other religious denominations were not subject to similar surveillance,” the Muslim Students Association of the U.S. & Canada allege.
The U.S. District Court of Newark refused to accept the American Muslims suing the City of New York had suffered any alleged harm. The federal district court dismissed the case in February 2014 and even went so far as to embrace the city’s argument that the AP stories based on confidential documents, which revealed surveillance, had been the real cause of harm to the American Muslims.
“Nowhere in the complaint do plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press,” Judge William J. Martini wrote. “This confirms that plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not ‘fairly traceable’ to any act of surveillance.”
The appeals court found the city’s argument about the AP was “legally untenable.” The alleged discrimination is the injury. The City of New York has to be the cause of the injury. So, the press cannot possibly be responsible for injuries caused to American Muslims because the AP never engaged in discrimination.
More significantly, the appeals court rejected the City of New York’s argument that a “comprehensive understanding of the makeup of the community would help the NYPD figure out where to look—and where not to look—in the event it received information that an Islamist radicalized to violence may be secreting himself in New Jersey.” And the appeals court rebuffed the assertion “it would be responsible for NYPD not to have an understanding of the varied mosaic that is the Muslim community to respond to such threats.”
Religious affiliation is subject to “heightened scrutiny” under the Equal Protection Clause of the Fourteeenth Amendment, the court argued. The surveillance against American Muslims could not be “justified by national security and public safety concerns. Rather, the burden of producing evidence to overcome heightened scrutiny’s presumption of unconstitutionality is that of the City.”
“Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps,” the appeals court recounted. “Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the government’s representations that the use of such classifications was necessary to the national interest.”
The appeals court added, “In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears.”
The past should not be allowed to bend our constitutional principles simply because national security is involved, the appeals court additionally argued.
Saying it was a “good day” for the civil rights of all Americans, Muslim Advocates legal director Glenn Katon suggested, “The court agreed that American Muslims cannot be treated like second class citizens by police because of their faith. We look forward to continuing our case to ensure that no American should be spied on simply because of the way he or she prays.”
“The court reaffirmed the elementary principle that law enforcement cannot spy on and harass individuals for no other reason than their religion and the equally important principle that courts cannot simply accept untested claims about national security to justify a gross stereotype about Muslims,” Center for Constitutional Rights legal director Baher Azmy concluded. “There is no Muslim exception to the Constitution.”
Azmy continued, “This case of religious profiling is the other side of the stop-and-frisk coin, yet [Mayor Bill] de Blasio administration, which won the election on a platform of police reform, still defends this form of outright discrimination against Muslims.”