Muslim-Americans Challenge NYPD Surveillance in Third Circuit

By Dustin Slaughter, Kenneth Lipp, and Austin Nolen

Eleven Muslim-American plaintiffs continued their nearly three-year legal challenge of the New York Police Department’s now defunct warrantless dragnet surveillance program in a Third Circuit courtroom today.

Appearing for the plaintiffs was Baher Azmy of the Center for Constitutional Rights (CCR). Plaintiffs are also represented by Muslim Advocates. The City of New York was represented by Peter G. Farrell from the city’s law department.

According to the CCR, “Hassan is the first direct legal challenge brought by a broad group of American Muslims from a variety of ethnic and racial backgrounds who have been victims of discriminatory police surveillance by the NYPD.” The plaintiffs include an Iraq war veteran, several owners of a grade-school for Muslim girls, New Jersey Muslim student associations, and two Muslim-owned private businesses. You can read the appellate brief here.

The plaintiffs launched their lawsuit, seeking damages and other remedies under alleged violations of the Fourteenth Amendment’s equal protection clause and the protections provided by the First Amendment regarding freedom of religion in October 2012, after an Associated Press investigation revealed a massive surveillance program operated by the NYPD in consultation with two Central Intelligence Agency officers.

The appeal concerns District of New Jersey Judge William J. Martini’s controversial decision to dismiss the lawsuit on the procedural grounds that the plaintiffs did not have standing and had not stated a claim.

“The lower court failed to evaluate let alone credit” the plaintiffs’ claims, began Azmy this morning before the three-judge panel.

Judge Jane Roth preempted Azmy’s full presentation regarding the NYPD’s program, saying “You seem to have assumed there was a policy” prescribing Muslim-targeted surveillance,  stating she could locate no discrete policy alleged in the complaint.

Roth, a George H.W. Bush appointee, asked Azmy “Didn’t what happened 9/11 and in Paris the other day support monitoring Muslims?” Azmy respectfully disagreed with Roth.

In order to bring a lawsuit in federal court, the Constitution requires that the plaintiffs must have standing, or that they must have suffered a concrete injury and that the injury be traceable to the conduct of the defendants.

Many cases about government surveillance have been hamstrung by a Supreme Court case, Laird v. Tatum, that states that surveillance in public areas alone does not create an injury, and thus standing. As the New York Times reported in 2012, a 9th Circuit decision that year was likely “‘the first time an appeals panel had ruled that citizens could sue military employees over spying.'” However, plaintiffs in this case argue that because the otherwise-legal surveillance was discriminatory, they have a case in spite of Laird.

Plaintiffs argue that their case is distinct from Laird because the NYPD’s custom of monitoring was patently and demonstrably discriminatory, and because concrete damages are alleged. “Institutional plaintiffs allege that they experienced a drop in congregants,” said Azmy, of mosques represented in the suit who claim police surveillance led to fear of attendance. The suit also claims loss of income to businesses, many owned by third or fourth-generation American Muslims, which the Demographic Unit spied on.

In his dismissal, Martini also stated, in part, that the Associated Press‘ reporting, and not the NYPD, caused the plaintiffs’ harm, thus depriving them of standing. Plaintiffs contend, to the contrary, that without the program, the AP would have had nothing to report on, and that this proves that the NYPD caused their injuries.

Today in court, Judge Roth stated that the AP reporting in fact strengthens the plaintiffs supposition that surveillance was targeted solely at Muslims.

Finally, New Jersey District Court Judge Martini had also dismissed the case because, he said, the plaintiffs had failed to state a claim, as required by Rule 12(b)(6) of the Federal Rules of Civil Procedure. According to Martini, because the facts alleged didn’t directly prove purposeful discrimination, discrimination had to be inferred, and he believed that it was more likely that the facts inferred a lawful program that only incidentally targeted Muslims.

Plaintiffs asked the appeals court to decide, however, that they did provide direct, factual proof of discrimination, and Judge Roth told Farell that in her opinion “the pleadings do demonstrate a focus on Muslims and no one else.”

Counsel for the plaintiffs argue that Judge Martini applied the wrong standard. They argued that since the case is only against a municipal corporation, it is governed by entirely different precedent than lawsuits against individual government employees.

According to journalists Matt Apuzzo and Adam Goldman, who produced the exclusive report, the NYPD’s so-called “Demographic Unit” infiltrated every mosque within a 250-mile radius of New York City with informants, and produced detailed reports on every mosque within a 100-mile radius. Surveillance also included photos, video taken by officers as well as street cameras aimed at Muslim houses of worship.

The NYPD’s surveillance reach even included monitoring the UPenn Muslim Student Association’s website, among other schools’. The massive dragnet program was reportedly discontinued by then-newly appointed police commissioner William J. Bratton in April 2014. Despite the NYPD’s widespread dragnet of New Jersey American Muslims, the reams of so-called intelligence led to no thwarted terrorist plots.

New York City police have a long documented history of conducting law enforcement through racial profiling. According to “Mapping Muslims: NYPD and its Impact on American Muslims,” (CUNY School of Law):

Sadly, race and dissent-based surveillance has a long lineage in the NYPD. Police surveillance of dissident and minority groups can be traced as far back as 1904, when the NYPD created an “Italian Squad” to monitor the practices and activities of Italian immigrants. In 1906 the NYPD had an “anarchist squad” which focused on harassing anarchists and labor activists. The NYPD’s surveillance of political activists of various kinds – communists, anarchists, labor activists, and civil rights activists – continued through the 1930s and the 1960s, under various names: the Bomb Squad, the New York Radical Bureau, and the Bureau of Special Services (BOSS).

Farrell, the attorney for the defendants, argued that inferences made by the plaintiffs regarding the NYPD’s intentions in surveilling Muslim communities should not be considered plausible by the court.

Judge Roth quickly shot back: “It’s amazing how broad what is considered ‘plausible’ has become during our tenure.”

The Third Circuit will issue its opinion on whether or not the case has standing to move to trial.

The Declaration has provided for download and review all filings related to this case here.