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Media Alerts - Syed Farhaj Hassan v. City of New York - Third Circuit
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October 15, 2015
  Syed Farhaj Hassan v. City of New York - Third Circuit
Headline: Third Circuit Says Muslim Groups Can Bring Lawsuit Against City of New York for Targeting Them With Special Police Surveillance Because of Their Religious Affiliation

Area of Law: Civil Rights

Issue Presented: Do allegations that a police department has targeted Muslim individuals and institutions for special surveillance based solely on their religious affiliation state valid claims of discrimination under the United States Constitution?

Brief Summary: This case involves the constitutionality of police surveillance on members of a particular religious group based solely on their membership in the religion and not on any specific conduct of particular members that raised concerns of criminality. Plaintiffs were individuals and entities associated with the Islamic faith. They alleged that that the City of New York targeted them in a wide-ranging surveillance program conducted by the New York City Police Department because Plaintiffs were Muslim or believed to be Muslim. The Third Circuit Court of Appeals found that Plaintiffs claims of unconstitutional behavior should not have been dismissed without a trial on the merits by the District Court. Plaintiffs plausibly alleged that the surveillance was discrimination based on religious affiliation. The Court found religious affiliation to be a suspect classification and was therefore subject to a heightened degree of scrutiny under the Equal Protection Clause of the US Constitution. The City of New York had the burden of justifying its surveillance program as necessary to further an important, perhaps even compelling, government interest. Because the City had failed to do so in its motion to dismiss, it was appropriate to remand the case to the District Court for further determination of the merits.

Extended Summary:
Plaintiffs were individuals and other entities associated with the Islamic faith. They alleged that the City of New York (the "City") targeted them in a wide-ranging surveillance program (the "Program") conducted by the New York City Police Department ("NYPD") beginning after the September 11 terrorist attacks. Plaintiffs alleged that they were targeted because they were Muslim or believed to be Muslim. In their complaint, Plaintiffs alleged that the Program was based on the false and stigmatizing premise that the Muslim religious identity was a permissible proxy for criminality. Thus, the Program endorsed pervasive surveillance of Muslim individuals, businesses, and institutions not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.

The NYPD executed the Program by monitoring the lives of Muslims, their businesses, houses of worship, organizations, and schools in the City and surrounding states, particularly New Jersey, through such means as snapping pictures, taking videos, recording conversations, and infiltrating Muslim-affiliated locations. The Plaintiffs also alleged that the Program intentionally targeted Muslims by using ethnicity as a proxy for faith because the NYPD expressly chose to exclude people and establishments that had ancestries of interest under the Program if they were not Muslim. The reports that resulted from this surveillance provided names and other identifying information about individuals, businesses, and organizations. According to Plaintiffs, however, none of the information collected showed any indication of criminal activity. The Program was initially conducted in secret, but the Program was disclosed to the public by various news media and has become public knowledge in New Jersey and elsewhere.
The District Court granted the City's motion to dismiss, and Plaintiffs appealed the District Court's decision to the Third Circuit Court of Appeals.

In its opinion, the Third Circuit found that plaintiffs had plausibly alleged intentional discrimination under the Equal Protection Clause of the Fourteenth Amendment. To plausibly allege intentional discrimination, Plaintiffs' religious affiliation must have been a substantial factor in their being surveilled more than members of any other religion. Plaintiffs plausibly alleged that the Program was facially discriminatory against Muslims because they alleged that the Program relied on an express classification of Muslims for disfavored treatment. To support their allegations, Plaintiffs alleged ample factual content about the Program above and beyond what the Federal pleading rules required, allowing the Court to draw the reasonable inference that the City is liable for the misconduct alleged. Plaintiffs also alleged that all these persons and entities were surveilled without any reasonable suspicion of wrongdoing to explain the NYPD's investigation. Therefore, Plaintiffs plausibly alleged that the Program was facially discriminatory.
Furthermore, the City intentionally discriminated against Plaintiffs. The City meant to single out Plaintiffs because they were Muslim or believed to be Muslim. Even if the NYPD was subjectively motivated by a legitimate law-enforcement purpose, such as public safety, they intentionally discriminated against Plaintiffs if they wouldn't have surveilled them had they not been Muslim.
The Third Circuit went on to find that the City's alleged intentional discrimination against Plaintiffs was not legally justified. According to the Court, classifications based on religious affiliation should trigger heightened scrutiny under the Equal Protection Clause, because religion is a suspect classification. Although this was an issue of first impression in the Third Circuit, the Court noted that a number of its sister courts - the Second, the Eighth, the Ninth and the Tenth Circuits - has reached the same conclusion. The Court found that discrimination based on religion is suspect because it is based on a characteristic that people should not be compelled to change because it is fundamental to their identities. Additionally, religious discrimination was suspect because it had a long a history of being used as a tool for the oppression and subordination of minority groups and has been intertwined with discrimination based on other protected characteristics like national origin and race in the past. Finally, Congress and the Executive Branch forbade religious discrimination in statutes, such as Title VII and the Patriot Act, and executive pronouncements. However, the Court did not determine which level of heightened scrutiny the Program should be subject to - either intermediate scrutiny or strict scrutiny - because the City bore the burden of proof with respect to both standards, and because it believed it was more appropriate for the District Court to make that determination in the first instance on remand.

Because heightened scrutiny applied to the City's conduct, the City needed to demonstrate a much stronger justification for its conduct and a much tighter relationship between the means employed and the ends served by the conduct. The City bore the burden of proof of justifying the means and ends of its conduct. The City could not have simply asserted that the Program was justified by national security and public safety. The City did not meet its burden on its motion to dismiss. The relationship between the City's justification and discriminatory means employed must have been sustained by objective evidence and not merely by the potential threat to national security and public safety. Moreover, even if the City were justified in employing a discriminatory classification to further a compelling state interest, it was constrained in how it could have pursued that end.

Accordingly, the Third Circuit reversed the District Court's decision to grant the defendant's motion to dismiss and remanded the case to the District Court for further proceedings consistent with the opinion.

For the full opinion, please visit

Panel (if known): Ambro, Fuentes, and Roth, Circuit Judges

Date of Argument: January 13, 2015

Date of Issued Opinion: October 13, 2015

Docket Number: No. 14-1688

Decided: Reversed

Case Alert Author: Sarah Adams

Counsel: Baher A. Azmy, Esq., Ghita Schwarz, Esq., Omar Farah, Esq., Glenn Katon, Esq., Farhana Khera, Esq., Adil Haq, Esq., Lawrence S. Lustberg, Esq., Joseph A. Pace, Esq., Partia Dolores Pedro, Esq., counsel for Appellants; Zachary W. Carter, Corporation Counsel of the City of New York, Richard P. Dearing, Esq., Peter G. Farrell, Esq., Celeste Koeleveld, Esq., Alexis Leist, Esq., Anthony DiSenso, Esq., William Oates, Esq., Cheryl Shammas, Esq., Odile Farrell, Esq., counsel for Appellee; Ayesha N. Khan, Esq., Gregory M. Lipper, Esq., Alexander J. Luchenitser, Esq., counsel for Amicus Appellant Americans United for Separation of Church and State; Benjamin C. Block, Esq., William Murray, Esq., Stephen J. Schulhofer, Esq., Robert L. Rusky, Esq., counsel for Amicus Appellants Karen Korematsu, Jay Hirabayashi, and Holly Yasui; Brian D. Boyle, Esq., Walter E. Dellinger, III, Esq., Deanna M. Rice, Esq., Nausheen Hassan, Esq., counsel for Amicus Appellants 100 Blacks in Law Enforcement Who Care, Chris Burbank, and Eric Adams; Gregory J. Wallance, Esq., W. Stewart Wallace, Esq. Michael Robertson, Esq., counsel for Amicus Appellants Asian American Legal Defense and Education Fund, American Arab Anti-Discrimination Committee, Universal Muslim Association of America Advocacy, South Asian Americans Leading Together, Shia Rights Watch, New Jersey Muslim Lawyers Association, National Network for Arab American Communities, National Lawyers Guild New York City Chapter, Muslim Public Affairs Council, Muslim Legal Fund of America, Muslim Consultative Network, Muslim Bar Association of New York, Muslim American Civil Liberties Coalition, Creating Law Enforcement Accountability and Responsibility, Arab American Association of New York, Asian Americans Advancing Justice - Asian Law Caucus, and South Asian Organization, Project SALAM; Ronald K. Chen, Esq., Edward Barocas, Esq., Jeanne LoCicero, Esq., Alexander Shalom, Esq., counsel for Amicus Appellants American Civil Liberties Union of New Jersey, LatinoJustice PRLDEF, Mexican American Legal Defense and Educational Fund, Bill of Rights Defense Committee, Garden State Bar, Association, Hispanic Bar Association of New Jersey, and Association of Black Women Lawyers of New Jersey; Bruce D. Brown, Esq., Gregg P. Leslie, Esq., Jamie T. Schuman, Esq., Jennifer A. Borg, Esq., counsel for Amicus Appellants Reporters Committee for Freedom of the Press and North Jersey Media Group Inc.; Michael W. Price, Esq., Faiza Patel, Esq., counsel for Amicus Appellant Brennan Center for Justice at New York University School of Law; Allen P. Pegg, Esq., counsel for Amicus Appellants Sikh Coalition, Interfaith Alliance Foundation, National Council of the Churches of Christ in the USA, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Islamic Society of North America, Bend the Arc: A Jewish Partnership for Justice, Hindu Temple Society of North America, Auburn Theological Seminary, National Council of Jewish Women, Universal Muslim Association of America, American Humanist Association, Sikh American Legal Defense and Education Fund, Muslim Alliance in North America National Religious Campaign Against Torture, Reconstructionist Rabbinical Association, Imam Mahdi Association of Marjaeya, Muslims for Peace, T'ruah: The Rabbinic Call for Human Rights, Ta'leef Collective, Muslim Congress, Unitarian Universalist Legislative Ministry of New Jersey, Queens Federation of Churches, Inc., Northern California Islamic Council, Council of Islamic Organization of Greater Chicago, and Islamic Shura Council of Southern California.

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 10/15/2015 01:31 PM     3rd Circuit  

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