A federal appeals court has reversed a controversial decision concerning an infamous spy program by the New York Police Department, enabling a group of Muslim plaintiffs from New Jersey to go ahead with their challenge to the program.
In 2012, the Muslim Advocates, a national advocacy group, and the New York-based Center for Constitutional Rights filed the lawsuit against what they called the NYPD’s unlawful and blanket surveillance of Muslim Americans in New Jersey. The plaintiffs, all Muslims, include an Iraq War veteran, university students, a coalition of mosques and the principal of a religious school for girls. The Federal District Court in Newark dismissed the case in February 2014, prompting the plaintiffs’ attorneys to appeal that decision.
The appellate ruling, issued Tuesday by the U.S. Court of Appeals for the Third Circuit in Philadelphia, held that the New Jersey Muslims have legal standing to sue the NYPD’s spy program, which was devised after the Sept. 11 attacks in the name of fighting terrorism. The ruling put the case, Hassan v City of New York, in a historical context back to the 1940s. “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,” the ruling said. “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 appeals court also reversed another argument by the district court that sided with the de Blasio administration in blaming The Associated Press, which blew the lid on the program in 2011, for causing any injuries to the plaintiffs. The AP revealed the program to the public without the consent of the city government, the district court said last year. The appeals court ruling dismissed this as a “distortions of the factual record,” adding the city’s argument is “legally untenable.”
Even though the appeals court made no conclusion on whether the surveillance subjected the Muslims to discrimination and sent back the case to the district court for further proceedings, activists still welcome the latest ruling.
“It sends the message that policing in this country just cannot rely on crude stereotype of groups like the Muslim communities,” said Omar Shakir, one of the attorneys on the case.
According to documents filed with the court of appeals by the plaintiffs, the NYPD’s surveillance program, which has never led to a single conviction, “uses a variety of methods to spy on Muslims” such as pictures, video, and collecting license plate numbers of mosque congregants. The plaintiffs also accused the NYPD of dispatching “undercover officers” — some of whom are called “mosque crawlers” and “rakers” — into mosques, student organizations, businesses and neighborhoods that “it believes to be heavily Muslim.”
The NYPD “has strived to have an informant inside every mosque within a 250-mile radius of New York City,” according to the plaintiffs. They alleged further that the NYPD spied on “at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two Muslim Students Associations, in addition to an untold number of individuals who own, operate, and visit those establishments.”
Farhaj Hassan, the lead plaintiff and a U.S. Army reservist, said in a statement Tuesday that the ruling “paves the path to holding the NYPD accountable for ripping up the Constitution. Enough is enough.”
The AP exposé compelled the NYPD to disband the Demographics United, which was tasked with mapping out Muslim demographics in the city, in April 2014. But just a month later, The New York Times revealed that the NYPD was recruiting Muslim arrestees as its informants.
Other than the Hassan case, two other lawsuits against the NYPD’s surveillance tactics are also pending in the federal courts in New York City. They are both in settlement-negotiating phases.
It is not clear when the next hearing of the Hassan case will begin. But Shakir, the attorney, said, “If the NYPD wants to really move forward beyond this dark chapter in history, it is important that it not only reiterate that the program is not continuing but that it really ensure its accountability in damages for those who have suffered this policy.”