Federal Appeals Court Says Suit Challenging NYPD Surveillance Can Continue

October 13, 2015

The U.S. Court of Appeals for the Third Circuit today held that individuals and organizations challenging the New York City Police Department’s (NYPD) Muslim surveillance program had presented a valid claim of discrimination on the basis of their religion.

The decision in Hassan v. City of New York reverses an earlier district court ruling dismissing the case. In July 2014, the Brennan Center for Justice filed an amicus brief supporting Mr. Hassan and his co-plaintiffs, pointing out the NYPD’s long-standing surveillance of First Amendment-protected activity by various disfavored groups, including African-American communities and anti-Vietnam War protestors. The Brennan Center urged the Third Circuit to reverse the district court’s decision.

“The Third Circuit’s decision is an important victory for the principle that our government — and our police — must treat all Americans equally, regardless of their race or religion,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “It is a much-needed reminder that national security cannot be invoked as a talisman to pre-empt judicial review. Our system of checks and balances must operate in the face of a variety of threats.”

“The court’s decision is on the right side of history,” said Michael Price, counsel for the Liberty and National Security Program. “It not only takes stock of the long history of discriminatory surveillance in this country, but also recognizes — for the first time — that surveillance based on religious affiliation is unconstitutional.”

In Hassan, several New Jersey mosques, businesses, and Muslim residents challenged the NYPD’s surveillance program, arguing the Department’s operations targeted them on the basis of their faith and burdened their ability to freely practice their religion. The court held that the plaintiffs had standing to bring the case and rejected the NYPD’s arguments to the contrary.

Echoing the Brennan Center’s argument, the court drew parallels between the targeting of Muslims in the post-9/11 era and discrimination against other racial and religious groups in American history, citing Supreme Court Justice Robert Jackson’s famous objection to the high court’s discredited 1944 decision upholding the internment of Japanese Americans during World War II. It went on to explain:

“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.’”

Under the program, as reported by a Pulitzer Prize-winning Associated Press investigation, the NYPD conducted blanket surveillance of at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two university-affiliated Muslim Student Associations in New Jersey alone. This surveillance included photographing license plates, community mapping, the use of informants to infiltrate mosques and businesses, and video surveillance of mosques. The NYPD later admitted that its surveillance program did not produce a single lead on terrorist activity. 

Hassan is the first case to challenge the NYPD’s Muslim surveillance program. Two others are pending in New York federal courts.

Read the Third Court’s decision here.

Read the Brennan Center's amicus brief here

Hassan v. NY Decision- Third Circuit