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Court Revives Civil Rights Suit Over NYPD's Muslim Surveillance

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By Casey C. Sullivan, Esq. on October 15, 2015 6:59 AM

A civil rights lawsuit over the New York Police Department's post-September 11th spying on Muslims in New Jersey was reinstated on Tuesday in a Third Circuit opinion. A group of Muslim plaintiffs had alleged that the program unconstitutionally treated their religion as a "proxy for criminality," resulting in "pervasive surveillance not visited upon ... any other religious faith or the public at large."

Under the program, New York police officers infiltrated Muslim groups, from student associates to mosques, in New York City and beyond, videotaping them and tracking their activities. In allowing the suit to go forward, the Third Circuit opinion drew parallels between the spying, the Cold War's Red Scare, and the internment of Japanese Americans in World War II.

NYPD's Surveillance Program

Following the 2001 attacks on the World Trade Center, the NYPD began investigating Muslim communities in New York and surrounding areas. In what the ACLU has described as a case of religious profiling, almost all of those surveilled gave no reason for suspicion aside from their religion.

According to the plaintiff's lawsuit, the NYPD collected information on "every mosque within 100 miles" of NYC, schools such as Rutgers University, and Muslim-owned businesses. The spying recorded mundane details such as flyers advertising Koran tutoring, which Dunkin' Donuts Muslims frequented, and what stores closed for Friday prayers.

Avoiding the Mistakes of the Past

After the program was revealed, plaintiffs sued, alleging that the surveillance was stigmatizing on its own, but also that NYPD reports included specific defamatory statements targeting them specifically. Their case was tossed on summary judgment when the district court agreed with New York that it was the press reporting on the program, not the program itself, which caused harm to the plaintiffs.

That logic, the Third Circuit said in an opinion by Judge Thomas Ambro, was like saying "what you don't know can't hurt you. And, if you do know, don't shoot us. Shoot the messenger."

In allowing the suit to go forward, the court offered an impassioned defense of the role courts play in protecting the civil rights of minorities. "What occurs here in one guise is not new," Judge Ambro wrote. "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," he continued, "that loyalty is a matter of the heart and mind, not race, creed or color."

The lawsuit will now return to district court, to determine whether the NYPD indeed had no constitutionally permissible reason to surveil the Muslim community.

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