Hassan v. City of N.Y.

• Decision Date: 13 October 2015
• Docket Number: No. 14–1688.,14–1688.
• Citation: 804 F.3d 277
• Parties: Syed Farhaj HASSAN; The Council of Imams in New Jersey; Muslim Students Association of the U.S. and Canada, Inc.; All Body Shop Inside & Outside; Unity Beef Sausage Company; Muslim Foundation Inc.; Moiz Mohammed; Jane Doe; Soofia Tahir; Zaimah Abdur–Rahim; Abdul–Hakim Abdullah, Appellants v. The CITY OF NEW YORK.
• Court: U.S. Court of Appeals — Third Circuit

804 F.3d 277

Syed Farhaj HASSAN; The Council of Imams in New Jersey; Muslim Students Association of the U.S. and Canada, Inc.; All Body Shop Inside & Outside; Unity Beef Sausage Company; Muslim Foundation Inc.; Moiz Mohammed; Jane Doe; Soofia Tahir; Zaimah Abdur–Rahim; Abdul–Hakim Abdullah, Appellants

v.The CITY OF NEW YORK.

No. 14–1688.

United States Court of Appeals, Third Circuit.

Argued Jan. 13, 2015.

Opinion Filed Oct. 13, 2015.

As Amended Feb. 2, 2016.

Baher A. Azmy, Esquire, (Argued), Ghita Schwarz, Esquire, Omar Farah, Esquire, Center for Constitutional Rights, New York, N.Y., Glenn Katon, Esquire, Farhana Khera, Esquire, Adil Haq, Esquire, Muslim Advocates, Oakland, CA, Lawrence S. Lustberg, Esquire, Joseph A. Pace, Esquire, Portia Dolores Pedro, Esquire, Gibbons, Newark, NJ, Counsel for Appellants.

Zachary W. Carter, Corporation Counsel of the City of New York, Richard P. Dearing, Esquire, Peter G. Farrell, Esquire, (Argued), Celeste Koeleveld, Esquire, Alexis Leist, Esquire, Anthony DiSenso, Esquire, William Oates, Esquire, Cheryl Shammas, Esquire, Odile Farrell, Esquire, New York City Law Department, New York, N.Y., Counsel for Appellee.

Ayesha N. Khan, Esquire, Gregory M. Lipper, Esquire, Alexander J. Luchenitser, Esquire, Americans United for Separation of Church and State, Washington, DC, Counsel for Amicus Appellant, Americans United for Separation of Church and State.

Benjamin C. Block, Esquire, William Murray, Esquire, Covington & Burling LLP, Washington, DC, Stephen J. Schulhofer, Esquire, New York, N.Y., Robert L. Rusky, Esquire, San Francisco, CA, Counsel for Amicus Appellants, Karen Korematsu, Jay Hirabayashi, Holly Yasui.

Brian D. Boyle, Esquire, Walter E. Dellinger, III, Esquire, Deanna M. Rice, Esquire, Nausheen Hassan, Esquire, O'Melveny & Myers LLP, Washington, DC, Counsel for Amicus Appellants, 100 Blacks in Law Enforcement Who Care, Chris Burbank, Eric Adams.

Gregory J. Wallance, Esquire, W. Stewart Wallace, Esquire, Kaye Scholer LLP, New York, N.Y., Michael Robertson, Esquire, Kaye Scholer LLP, Washington, DC, 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, South Asian Organization, Project SALAM.

Ronald K. Chen, Esquire, Rutgers University Constitutional Rights Clinic, Newark, NJ, Edward Barocas, Esquire, Jeanne LoCicero, Esquire, Alexander Shalom, Esquire, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, 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, Association of Black Women Lawyers of New Jersey.

Bruce D. Brown, Esquire, Gregg P. Leslie, Esquire, Jamie T. Schuman, Esquire, Reporters Committee for Freedom of the Press, Arlington, VA, Jennifer A. Borg, Esquire, North Jersey Media Group Inc., Woodland Park, NJ, Counsel for Amicus Appellants, Reporters Committee for Freedom of the Press, North Jersey Media Group Inc.

Michael W. Price, Esquire, Faiza Patel, Esquire, Brennan Center for Justice at NYU School of Law, New York, N.Y., Counsel for Amicus Appellant, Brennan Center for Justice at New York University School of Law

Allen P. Pegg, Esquire, Hogan Lovells U.S. LLP, Miami, FL, 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, Islamic Shura Council of Southern California.

Before: AMBRO, FUENTES, and ROTH, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

TABLE OF CONTENTS I.INTRODUCTION 284II.BACKGROUND 285A.Plaintiffs' Allegations 2851.The Program 2852.Reports and Informational Databases 2863.Fall–Out from the Program's Disclosure to the Public 287B.District Court 288III.STANDING 289A.Injury–in–Fact 289B.Fair Traceability 292C.Redressability 293IV.CONSTITUTIONAL CLAIMS 294A.Equal–Protection Claim 2941.Do Plaintiffs Plausibly Allege Intentional Discrimination? 294i.Plaintiffs Plausibly Allege a Surveillance Program with a Facially Religious Classification 294   ii.Intentional Discrimination Does Not Require an Invidious Motive. 297  2.Is the Alleged Discrimination Nonetheless Legally Justified? 298i.Level of Scrutiny 298   ii.Evaluation of Means and Ends 305 B.First–Amendment Claims 307V.CONCLUSION 309

I. INTRODUCTION

Plaintiffs appeal the dismissal of their civil-rights suit against the City of New York (the “City”). They claim to be targets of a wide-ranging surveillance program that the New York City Police Department (the “NYPD”) began in the wake of the September 11, 2001 terrorist attacks (the “Program”). Plaintiffs allege that the Program is based on the false and stigmatizing premise that Muslim religious identity “is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.” First Am. Compl. ¶ 6 (the “Complaint” or “Compl.”). They bring this lawsuit “to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith.” Id. ¶ 8.

In its narrowest form, this appeal raises two questions: Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in federal court to vindicate their religious-liberty and equal-protection rights? If so, taking Plaintiffs' non-conclusory allegations as true, have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface, however, are questions about equality, religious liberty, the role of courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.

II. BACKGROUND

A. Plaintiffs' Allegations

Lead Plaintiff Syed Faraj Hassan and others of or associated with the Islamic faith (collectively “Plaintiffs”) assert that, since January 2002, the City has through the NYPD conducted the Program in secret “to monitor the lives of Muslims, their businesses, houses of worship, organizations, and schools in New York City and surrounding states, particularly New Jersey.” See Pls.' Br. 2 (citing Compl. ¶¶ 36, 38). As this case comes before us on the City's Motion to Dismiss, we must take all facts alleged in Plaintiffs' Complaint as true and draw all reasonable inferences that arise therefrom in their favor. See Fed.R.Civ.P. 12(b)(6).

1. The Program

Plaintiffs contend that the NYPD launched the Program following the September 11, 2001 terrorist attacks with the goal of “infiltra[ting] and monitor[ing] Muslim life in and around New York City.” Compl. ¶ 2. They claim that it “target[s] Muslim entities and individuals in New Jersey for investigation solely because they are Muslim or believed to be Muslim” rather than “based upon evidence of wrongdoing.” Id. ¶¶ 7, 47. Plaintiffs claim that the Program, going on its tenth year when the Complaint was filed, “has never generated a single lead.” Id. ¶ 2.

Per the Complaint, the NYPD “uses a variety of methods to spy on Muslims.” Id. ¶ 39. Among the techniques that it employs are to “snap pictures, take video, and collect license plate numbers of [mosque] congregants” and to “mount surveillance cameras on light poles, aimed at mosques,” which “[o]fficers can [then] control [remotely] ... with their computers” and which generate footage used “to help identify worshippers.” Id. ¶ 46. Plaintiffs also allege the NYPD sends “undercover officers”—some of which are called “mosque crawlers” and “rakers”—into mosques, student organizations, businesses, and neighborhoods that “it believes to be heavily Muslim.” Id. ¶¶ 47, 49–50. By “monitor[ing] sermons and conversations in mosques” and “surveil[ling] locations such as bookstores, bars, cafes, and nightclubs,” officers “document[ ] ... American Muslim life” in “painstaking detail[ ]” and “report back to the NYPD.” Id. ¶ 47.

While Plaintiffs believe that some of this surveillance activity is passive (such as “tak[ing] video and photographs at mosques, Muslim-owned businesses, and schools,” id. ¶ 39, and recording “the subject of conversations overheard at mosques,” id. ¶ 47), in other cases NYPD officers more actively engage with the persons monitored. One alleged spying method...