Appeals court reverses dismissal of NYPD Muslim surveillance case

 Ted Sherman | NJ Advance Media for
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on October 13, 2015

Farhaj Hassan, the lead plaintiff in the lawsuit brought against the NYPD on behalf of New Jersey Muslims, charging the long-running surveillance operation by the police in New Jersey was unconstitutional.


PHILADELPHIA — Citing the treatment of Japanese-Americans during World War II, a federal appeals court Tuesday reversed the dismissal of a high-profile discrimination case brought against the New York City Police Department over a secret surveillance program of Muslim businesses and houses of worship in New Jersey.

The Third Circuit Court of Appeals said the NYPD could not target a group solely on the basis of religion or ethnic background.

"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," said the appellate panel "We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that loyalty is a matter of the heart and mind, not race, creed, or color."

The case was first brought by several Muslims, mosques and a number of Muslim-owned businesses in New Jersey. They charged the NYPD's long-running surveillance program of the Muslim community that began in the wake of the Sept. 11, 2001 terrorist attacks—and came to light after a series of investigative reports by the Associated Press—was unconstitutional.

Dossiers compiled by the police had documented so-called "locations of concern" in Newark—listing the city's 44 mosques, many Muslim-owned restaurants and businesses and Islamic schools, as part of an undercover operation that sought to find and document where Muslims lived, worked and prayed.

NYPD officials defended the now disbanded program as legal and justified, and a later review ordered by then-Attorney General Jeffrey Chiesa concluded there was no evidence to show the undercover operation violated New Jersey's civil or criminal laws.

But in a 2012 lawsuit filed in federal court in Newark, two advocacy groups—Muslim Advocates and the Center for Constitutional Rights—challenged the spying program on behalf of a eight plaintiffs, charging that the program of "blanket, suspicion-less surveillance" was discriminatory because it focused on religion, national origin and race.

The lawsuit was dismissed in February 2014 by U.S. District Judge William Martini, who said the plaintiffs, including the former principal of a grade school for Muslim girls, "have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion."

The judge said the more likely explanation for the surveillance "was to locate budding terrorist conspiracies," adding that the police "could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. He said the motive for the program was not solely to discriminate against Muslims, but to "find Muslim terrorists hiding among the ordinary law-abiding Muslims."

The appellate panel—Judge Thomas Ambro, Julio Fuentes and Jane Roth disagreed.

"To be clear, we acknowledge that a principal reason for a government's existence is to provide security. But while we do not question the legitimacy of the city's interest, the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose," the panel said in its ruling.

A spokesman for the New York City Law Department said they were reviewing the decision, which sends the case back to the lower court.

"At this stage, the issue is whether the NYPD in fact surveilled individuals and businesses solely because they are Muslim, something the NYPD has never condoned," said Nicholas Paolucci. "Stigmatizing a group based on its religion is contrary to our values."

Baher Azmy, legal director of the Center for Constitutional Rights, said 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. There is no Muslim exception to the Constitution."

Muslim Advocates Legal Director Glenn Katon said the court agreed "American Muslims cannot be treated like second class citizens by police because of their faith."

In a statement, lead plaintiff Farhaj Hassan—a U.S. soldier who served in Iraq—said the ruling affirmed the fact the NYPD violated the basic rights of Americans. "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," Hassan said.

The case, Hassan v. City of New York, was remanded back to Martini for trial.

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