By Austin Nolen
On Tuesday, a panel of three judges of the 3rd Circuit Court of Appeals in Philadelphia unanimously reinstated a lawsuit by Muslim plaintiffs who allege the NYPD illegally spied on them. The plaintiffs, who reside in New Jersey, previously had their case dismissed by federal district judge, and appealed that decision to the 3rd Circuit, the appellate court covering Pennsylvania, Delaware and New Jersey.
In their opinion, Judges Ambro, Fuentes and Roth focused on two crucial issues: whether the plaintiffs had “standing” to sue, and whether they had stated a claim for violation of the First and Fourteenth Amendments – in other words, whether their allegations, if true, show that the NYPD broke the law. Both are procedural issues that are dealt with before trial, and the original judge in the case concluded that the plaintiffs failed on both counts.
The constitutional doctrine of standing requires that a plaintiff plausibly argue they were injured, that the defendant played a role in causing that injury and that a court decision can appropriately address the injury. Among their other arguments against standing, the NYPD’s lawyers claimed that since the alleged spying program was widespread, no single person could have been sufficiently harmed. In ruling that the plaintiffs did have standing, however, the judges quoted the Supreme Court in Massachusetts v. EPA: “[t]o deny standing to persons who are in fact injured[,] simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.”
Turning to the plaintiffs’ claims of violations of the First Amendment’s religion clauses and the Equal Protection clause of the Fourteenth Amendment, the court found that the defendants had barely addressed the First Amendment issues, and so reinstated these claims with little discussion. In a much longer section on the Equal Protection clause, the judges ruled that the plaintiffs had argued sufficiently that New York had a policy of surveilling Muslims based on religion. It also ruled that while the city could present a defense against these charges, it would have to wait for a later stage in the court proceedings.
At the close of the opinion, the judges compared the NYPD program to moments of American history now widely considered abhorrent: “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.'”
In a statement, Baher Azmy, one of the attorneys for the plaintiffs, said that ““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.” Larry Byrne, the NYPD’s Deputy Commissioner for Legal Matters, told WCBS 880 that “the suit will proceed. We will defend against it vigorously. There’s been no finding by the court that the NYPD did anything wrong or anything illegal.”
The full opinion is available below:
The Philly Declaration 
