Charles Toutant, New Jersey Law Journal

January 14, 2015    | 0 Comments

NYPD surveillance camera at Wall Street and Broadway in ManhattanNYPD surveillance camera at Wall Street and Broadway in ManhattanRick Kopstein

A panel of the U.S. Court of Appeals for the Third Circuit focused on standing to file suit when it heard arguments Jan. 13 regarding whether to reinstate a suit over surveillance of New Jersey Muslims by the New York Police Department.

The judges’ questioning of lawyers focused on whether Muslim citizens were injured by the NYPD’s large-scale surveillance program and whether the department’s actions caused the injury. The court is considering whether to reverse a February 2014 ruling by U.S. District Judge William Martini of the District of New Jersey that dismissed the suit for lack of standing.

The plaintiffs claim in court papers that as New Jersey Muslims learned that the NYPD was monitoring mosques, stores and restaurants, attendance at religious observances declined and Muslim businesses suffered a loss in revenue. Muslim citizens of New Jersey who were spied on were injured and gained standing merely because they were singled out based on their religion, said Baher Azmy of the Center for Constitutional Rights in New York, who represented the plaintiffs.

But the lawyer for New York, Peter Farrell of the New York City Law Department, said the plaintiffs lack standing because individuals’ decisions not to go to a mosque or spend money in a business were not the result of the department’s actions, but of the “subjective fears” of Muslim citizens about the police department.

The police surveillance program, which was started after the Sept. 11, 2001, terrorist attacks, came to light when The  Associated Press reported that the NYPD collected license plate numbers, set up video cameras and planted informants to gather information about Muslim residents of New Jersey. In New Jersey, police monitored at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools and two student groups. The program took particular interest in the Muslim community in Newark, creating detailed maps noting the location of mosques and the ethnic composition of the Muslim community, according to court documents.

The suit was filed in 2012 by a cross-section of the state’s Muslim community, who claim they suffered a variety of harms as a result of the surveillance.

Martini’s ruling dismissing the suit said the plaintiffs lacked standing because they had not shown an injury beyond a subjective chill, and that they had not shown causation.

At the Third Circuit argument, Judge Jane Richards Roth challenged Azmy as to whether an NYPD policy calling for surveillance of Muslims even exists.

“Where is the policy? I’ve looked for a policy. You seem to assume there is a policy for surveillance of Muslims that’s been said or written,” Roth said.

Azmy replied that, under Monell v. Department of Social Services, “we don’t need to demonstrate at the pleading stage that we have a formal, written decree. We can show a policy or a custom and we’ve pleaded ample facts that the city has singled out Muslims alone for different treatment.”

Roth also argued that the 9/11 attacks and the recent massacre at the office of the magazine Charlie Hebdo in Paris demonstrate “there are legitimate investigative reasons for this surveillance.”

“We respectfully disagree, your honor,” Azmy replied. “We take no issue that there are significant security threats in this world. The question is, what means do law enforcement use to, quote, investigate?”

Judge Julio Fuentes asked Azmy if constitutional rights can be violated “if all the alleged surveillance occurred in public places or places to which the public was invited?”

“You can if all the surveillance is based on a discriminatory classification,” Azmy said.

 Roth said that young men are often recruited in mosques by imams who are giving “terrorist-supported sermons.”

 “How do you find out where that is going on? Well, you focus on mosques. You focus on Muslims. If you go to the Baptist church, you aren’t really going to find anything out that’s relevant to you,” Roth said.

Azmy replied that the surveillance program’s reliance on religion triggers strict scrutiny.

“If the NYPD can demonstrate that it is narrowly tailored and necessary to surveil a Muslim school for 8-year-old girls in order to rout out terrorism, they will have every opportunity to do so after summary judgment,” Azmy said.

Judge Thomas L. Ambro asked how the police could “narrowly tailor what they need to do to ferret that out?”

Azmy said there are “traditional law enforcement methods that the NYPD, in all its sophistication, and other police departments, can use.”

Fuentes asked what those methods were.

“Following leads, which I’m sure they do,” Azmy said.

Farrell, the lawyer for New York City and the NYPD, said the plaintiffs lack standing to sue because the department’s surveillance activity was not the subject of a policy, custom or practice.

“Then why do they do it?” Ambro asked. “Somebody tells them to go in and do the type of surveillance we’re talking about? Just this past weekend you had the former mayor upset that the, quote, policy, close quote, was discontinued. He’s calling it a policy.”

Ambro was apparently referencing comments made by Rudolph Giuliani, calling for the resumption of surveillance of Muslims.

“There is no written policy,” Farrell replied. “This case, at its heart, involves surveillance of public spaces and activity, attendance at public meetings.”

Fuentes asked whether New York City had policies targeting any group other than Muslims.

“The point is, the New York City police department is targeting a religious group, Muslims,” Fuentes said.

“There is no policy targeting Muslims,” Farrell said.

The judges asked the city’s attorney about whether the decline in mosque attendance or drop in business at Muslim establishments was an injury in fact.

“The basic tenets of standing requires a government policy that prohibits or compels. Surveillance of public activity doesn’t prohibit or compel anyone to do anything,” Farrell replied. “This is not a case that involves a stop. It’s not a case that involves a search. It’s not a case that involves an arrest.”

The lead plaintiff in the case, Syed Farhaj Hassan, served in Iraq with the Army reserve, according to court documents. He claims he attends mosques less frequently because of a reasonable and well-founded fear that his security clearance will be jeopardized by being affiliated with mosques that are under surveillance by law enforcement. Other plaintiffs include the owners of an auto repair shop and a halal meat market, both in Newark, who claim customers have been scared away by the surveillance.

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