Court revives lawsuit over NYPD surveillance of Muslims
A federal appeals court on Tuesday revived a lawsuit challenging the New York Police Department's post-9/11 surveillance of Muslim religious and civic groups, comparing the program to other dark moments of race-based government monitoring in America's past.
A federal appeals court on Tuesday revived a lawsuit challenging the New York Police Department's post-9/11 surveillance of Muslim religious and civic groups, comparing the program to other dark moments of race-based government monitoring in America's past.
"We have been down similar roads before," Circuit Judge Thomas Ambro wrote for a three-judge panel of the Philadelphia-based U.S. Court of Appeals for the Third Circuit. "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."
He added: "We are left to wonder why we cannot see with foresight what we see so clearly with hindsight."
The appeals court, reversing a lower court decision, found that New Jersey Muslims had raised sufficient questions to suggest the counterterrorism program may have violated the rights of their organizations' members and that they should have the opportunity to have their case heard.
In a first for the court, the panel also ruled that government programs that single out individuals based on religious affiliation should receive the same level of scrutiny from the courts as those involving gender or race.
Lawyers for the 11 plaintiffs - a group that includes an Army sergeant, a former schoolteacher, an imam, and members of a student organization at Rutgers University - hailed the decision, and likened their case to recent suits challenging controversial race-based policing programs such as "stop and frisk."
"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," said Baher Azmy, legal director of the New York-based Center for Constitutional Rights.
The plaintiffs were joined in the case by lawyers from Muslim Advocates, a legal group based in San Francisco, whose legal director, Glenn Katon, added: "No American should be spied on simply because of the way he or she prays."
New York officials defended the program as a lawful antiterrorism tactic and stressed that Tuesday's ruling made no findings of police wrongdoing. Rather, they said, the court cleared the way for the plaintiffs to attempt to prove in court that what they did was right.
"The issue is whether the NYPD in fact surveilled individuals and businesses solely because they are Muslim, something the NYPD has never condoned," a spokesman for the New York City Law Department said in a statement. "Stigmatizing a group based on its religion is contrary to our values."
The NYPD program started in 2002 but was not publicly disclosed until 2011, when the Associated Press revealed its existence in a series of Pulitzer Prize-winning stories.
The plaintiffs in Tuesday's case argued that news of that surveillance drove customers away from their businesses and led to plunging attendance at mosques and Muslim civic groups.
The lawsuit alleges undercover officers infiltrated Muslim communities, student groups, and mosques. In one instance cited in legal filings, a police officer posing as a college student accompanied members of a Muslim student association on a rafting trip to note how many times the students prayed and their discussions of religious topics.
The information gathered by the undercover unit appears to have ranged from innocuous to mundane. Intelligence reports cited in the suit include mentions of a local business' intention to close for Friday prayers and a regular meeting by members of a New Jersey mosque at a Dunkin' Donuts store.
New York Police Commissioner William Bratton disbanded the unit last year, a move that Mayor Bill de Blasio praised at the time as critical in "easing tensions between police and the communities they serve."
Still, a federal court in Newark, N.J., dismissed the plaintiffs' suit in February 2014, finding that the city had a compelling interest to monitor terrorist threats and that "the police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself."
The appeals court balked Tuesday at his reasoning.
"Our nation's history teaches the uncomfortable lesson that those not on discrimination's receiving end can all too easily gloss over the 'badge of inferiority' inflicted by unequal treatment," Ambro wrote.
Lawyers for the city had also argued it was the news reports about the surveillance program - and not the program itself - that drove away business. That argument was quickly dismissed by Ambro.
"In short, it argues, 'What you don't know can't hurt you. And, if you do know, don't shoot us. Shoot the messenger,' " his opinion read.
The case now heads back to federal court in Trenton, where lawyers for both sides will work out the details of sharing pretrial discovery material. Should it go to trial, the court would make any final determination on whether the program violated the civil rights of the plaintiffs.
Syed Farhaj Hassan - a 39-year-old Army sergeant from Helmetta, N.J., and the case's lead plaintiff - is glad he and the others won another chance to be heard.
"No one should ever be spied on and treated like a suspect simply because of his or her faith," he said in a statement. "Today's ruling paves the path to holding the NYPD accountable for ripping up the Constitution. Enough is enough."
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