In Hassan v. City of New York, the Third Circuit yesterday emphatically overturned a New Jersey district court, which had dismissed a challenge to the New York City Police Department’s Muslim surveillance program. The decision is important not only for the New Jersey plaintiffs who brought the case, but also for its analysis of several legal issues that have dogged efforts to obtain judicial review of surveillance programs. It is not clear whether the decision will have any impact on two other similar challenges currently pending in New York, which, according to court filings have been settled “in principle.” Some key points from the decision are summarized below, with the disclosure that the Brennan Center filed an amicus brief in support of the plaintiffs.
Standing
The threshold issue in Hassan was whether the plaintiffs had alleged injury sufficient to establish standing to bring claims that the NYPD’s surveillance of Muslim communities in New Jersey violated the equal protection clause of the Fourteenth Amendment as well as the free exercise and establishment clauses of the First Amendment. The Third Circuit ruled that the fundamental injury alleged by the plaintiffs — unequal treatment on the basis of religion — was sufficient to keep them in court. The court rejected as “too cramped,” the City’s contention that discrimination is only actionable when it results in deprivation of “a tangible benefit like college admission or Social Security.” Rather, the harm from discrimination was the stigmatization of the disfavored group. The Third Circuit’s decision included an important discussion of the Supreme Court’s 1972 decision Laird v. Tatum, which dismissed a First Amendment challenge to a surveillance program because plaintiffs in that case had alleged only that the existence of the program had a “chilling effect” on speech. The court yesterday noted that Laird was a “narrow” holding that precluded standing where no other injury at all was alleged. In Hassan, the court found that allegations regarding the program’s discriminatory focus on Muslims were sufficient to meet Article III standing requirements. Laird has been viewed by many law enforcement (and intelligence) agencies as establishing a very high bar for challenges to surveillance programs — an assumption that may require reconsideration in light of this decision.
One of the most remarkable aspects of the lower court’s dismissal of Hassan was its acceptance of the City’s argument that any injury to the plaintiffs was not fairly traceable to the police. Rather, defendants argued, it was the fault of the Associated Press, which published a Pulitzer Prize-winning investigation of the NYPD’s surveillance of Muslim communities in New York and New Jersey. The court described this position — variants of which have been articulated in the wake of Snowden’s disclosures as well — as “What you don’t know can’t hurt you. And, if you do know, don’t shoot us. Shoot the messenger.” The Third Circuit wasn’t buying it. The primary injury alleged was discrimination, which was caused by the City, not than the press.
Equal Protection Claims
Next up was the lower court’s dismissal of the case on the grounds that the plaintiffs had failed to state a claim. The plaintiffs had alleged that the NYPD’s surveillance program was facially discriminatory because it targeted Muslims. In response, the City had demanded information about “when, by whom, and how the policy was enacted and where it was written down.” But the court found the plaintiffs had met their burden, alleging specifics about the program “including when it was conceived (January 2002), where the City implemented it (in the New York Metropolitan area with a focus on New Jersey), and why it has been employed because of the belief ‘that Muslim religious identity … is a permissible proxy for criminality.’” In other words, the plaintiffs had sufficiently alleged a facially discriminatory policy even when they couldn’t identify a piece of paper on which it was memorialized. For civil rights lawyers concerned that cases like Iqbal and Twombly are closing off avenues for civil rights litigation, the Third Circuit holding provides some comfort.
A key issue in the case was the NYPD’s intent in monitoring Muslims. The City had successfully argued below that it “could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.” Its motive, the City argued, was counterterrorism, not treating Muslims differently. The problem with this argument, the Third Circuit explained, was that the City was mixing up “intent” and “motive.” The intent inquiry focuses on whether a person acts intentionally rather than accidentally, while the motive inquiry focuses on why a person acts. “[E]ven if NYPD officers were subjectively motivated by a legitimate law enforcement purpose … they’ve intentionally discriminated if they wouldn’t have surveilled Plaintiffs had they not been Muslim,” the court concluded.
The court then turned to whether, assuming differential treatment, the NYPD program was nevertheless justified on security or public safety grounds. It began its inquiry by examining the appropriate standard of review, concluding that it was appropriate to apply heightened scrutiny to religion-based classifications under the equal protection clause rather than simply to examine whether the City had a rational basis for its actions. Even though religious affiliation, unlike race, is capable of being changed, the Third Circuit agreed with many of its sister courts that it was of such fundamental importance that people should not be required to change their faith. The majority declined to decide whether intermediate or strict scrutiny was the correct test. However, in her concurrence, Judge Roth took the position that intermediate scrutiny was appropriate, stating that she could not “endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply discrimination against me as a woman.”
New York City had argued that the surveillance program met the heightened scrutiny standard because it was necessary to meet the threat of terrorism. In support, the City put forward its oft-repeated argument that a “comprehensive understanding of the makeup of the community would help the NYPD figure out where to look — and where not to look — in the event it received information that an Islamist radicalized to violence may be secreting himself in New Jersey.” The court was not convinced that this was a sufficiently close fit with the goal, finding that the City failed to meet its burden of rebutting the presumption of unconstitutionality created by plausible allegation of discrimination. Harking back to the World War II internment of Japanese Americans (raised by the amicus brief filed by Just Security alum Stephen Schulhofer on behalf of Karen Korematsu and others), the Third Circuit cautioned:
No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights … Given that “unconditional deference to [the] government[’s] … invocation of ‘emergency’ … has a lamentable place in our history,” the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.
First Amendment Claims
Lastly, the Third Circuit rejected as “threadbare” the City’s argument that plaintiffs First Amendment free exercise and establishment clause claims failed because they did not allege “overt hostility and prejudice.” As with the equal protection claims, it was not necessary for plaintiffs to demonstrate animus.
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In conclusion, the court reminded us that the targeting of Muslims, which has been a leitmotif of US security policy, was 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.”
That’s a question I, too, often ask.