NYPD surveillance camera at Wall Street and Broadway in Manhattan
NYPD surveillance camera at Wall Street and Broadway in Manhattan (Rick Kopstein)

Wide-scale surveillance of New Jersey Muslims by the New York Police Department caused “concrete and particularized” injuries, according to papers filed with the U.S. Court of Appeals for the Third Circuit seeking to overturn summary judgment dismissal of their civil rights suit.

The NYPD’s targeting of Muslims based solely on their religion, and not on any indicia of wrongdoing or criminal suspicion, constitutes an injury-in-fact that confers standing to assert constitutional claims, the plaintiffs argue in Hassan v. City of New York.

They are seeking to overturn a Feb. 20 decision by U.S. District Judge William Martini of the District of New Jersey that granted summary judgment to the NYPD and the city of New York. Martini said the plaintiffs lacked standing to bring the suit because they did not claim an injury-in-fact.

Martini also said the plaintiffs’ alleged injuries were caused by a series of Associated Press articles about the surveillance program, and not the program itself. In addition, Martini said the motive for the program was not to discriminate against Muslims, but to find Muslim terrorists hiding among law-abiding Muslims.

In a brief filed July 3, the appellants criticized Martini’s ready acceptance of the city’s explanation that the Sept. 11 attacks warranted surveillance of Muslims, without considering whether the program was narrowly tailored to serve a compelling government interest.

“This finding stands in direct contravention of repeated admonitions by the Supreme Court that courts must not accept justifications for discriminatory classifications at the pleading stage because, ‘absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are benign or remedial and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race,’” the appellants argued, citing the U.S. Supreme Court ruling in City of Richmond v. J.A. Croson, 488 U.S. 469 (1989).

The appellants also disputed Martini’s finding that any harm from the program was the result of the AP articles, saying the mere adoption of a discriminatory policy constitutes an injury-in-fact, independent of its disclosure.

The appellants also argue that the surveillance program violates the free exercise and establishment clauses of the First Amendment as a government policy that purposely discriminates on the basis of religion or signals disapproval of a particular religion. The appellants also say in the brief that they have stated a plausible claim for discriminatory treatment and therefore Martini erred in accepting any explanation for the city’s discriminatory actions at the pleading stage.

Under the surveillance program, which began in 2002, police set up video cameras pointed at mosques, took photographs, collected license plate numbers and planted informants in places frequented by Muslims to engage them in pretextual conversations and elicit details about their lives. The information gathered was used to generate a series of reports, including one that focused on the Muslim community in Newark.

The program was not publicly known until the AP reported on it in 2011, using confidential NYPD documents. After the program became public knowledge, the NYPD made public statements that the program was focused on pinpointing the likely location of terrorists. In New Jersey, the NYPD conducted surveillance of at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools and two student groups, as well as an unknown number of individuals.

The suit was filed by six Muslim individuals, two organizations that operate mosques, two Muslim business owners and a Muslim student group.

“Plaintiffs were spied on, not because of any criminal suspicion whatsoever, but because of their faith—an indisputably unconstitutional basis for police surveillance,” said a lawyer for the appellants, Baher Azmy of the Center for Constitutional Rights in New York. “The district court’s decision effectively allows the city of New York to treat Muslims as second-class citizens, and ratifies ugly stereotypes that could upend decades of antidiscrimination law. We hope the Court of Appeals will not let this broad sanction of racial profiling and religious discrimination stand, and we are pleased that so many prominent organizations and individuals are standing with us in the case.”

The appeal has also been the subject of amicus curiae briefs from the American Civil Liberties Union of New Jersey, the Mexican American Legal Defense and Education Fund, the Garden State Bar Association, the Association of Black Women Lawyers of New Jersey, Americans United for Separation of Church and State, the Hispanic Bar Association of New Jersey, the Brennan Center for Justice at New York University School of Law, the Asian American Legal Defense and Education Fund, New Jersey Muslim Lawyers Association, the National Council of the Churches of Christ in the USA, the National Council for Jewish Women and the Reporters Committee for Freedom of the Press.

Besides Azmy, who is a professor at Seton Hall University School of Law, the appellants are represented by Lawrence Lustberg and Joseph Pace of Gibbons in Newark and Glenn Katon of Muslim Advocates in Oakland, Calif.

Richard Dearing and Peter Farrell of the New York City Law Department represent the city and police department. A department spokesman, Nick Paolucci, declined to comment.

Contact the reporter at ctoutant@alm.com.