Muslim Groups' Anti-Spying Lawsuit Reinstated

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By Lance J. Rogers

Oct. 13 — A coalition of Muslim-Americans may go forward with a lawsuit claiming that the New York Police Department's post-9/11 surveillance program violated their constitutional rights by singling them out solely on the basis of their religion and not on any indicia of wrongdoing or criminal suspicion, the U.S. Court of Appeals for the Third Circuit ruled Oct. 13.

In an opinion by Judge Thomas L. Ambro, the court said the city's program was reminiscent of the treatment of Japanese-Americans during World War II, Jewish-Americans during the Red Scare and African-Americans during the civil rights movement.

Singled Out Based on Religion

The ruling revives a 42 U.S.C. § 1983 action that was dismissed last year when a federal district court ruled that the plaintiffs lacked standing to proceed and added that, even if they had standing, they failed to plead sufficient facts to state a claim for discrimination.

The district court said the plaintiffs, a coalition of individual Muslims, Muslim-owned businesses, mosques and other Islamic organizations failed to identify any cognizable “injury-in-fact” and couldn't show they were targeted solely because of their religion.

The Third Circuit disagreed with the finding that there was no injury, saying the threshold for showing injury is not very high and that the indignity of being singled out by the government for special burdens on the basis of one’s religious calling is almost enough to get in the courthouse door.

‘Budding Terrorist Conspiracies.'

The circuit court also rejected the district judge's finding that there was no discriminatory intent. According to the district judge, “The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.”

That argument is flawed in that it confuses motive and intent, the Third Circuit said. In a school-segregation case, for instance, the intent that makes the discriminatory action unconstitutional is not an intent to harm black students but simply an intent to bring about or maintain segregated schools, it said.

“So too here,” the court said. Intentional discrimination may be unconstitutional regardless of whether it is motivated by “ill will, enmity, or hostility,” it added.

The city also got nowhere with its argument that the harm in this case was caused by the Associated Press when it broke the story.

The court said that argument is tantamount to saying, “What you don’t know can’t hurt you. And, if you do know, don’t shoot us. Shoot the messenger.”

Using Religion as Proxy for Criminality

The plaintiffs have stated a 14th Amendment equal protection clause violation by making plausible allegations that the city engaged in intentional discrimination against a protected class on the basis of religious affiliation, the court said.

The lawsuit alleges that the city placed informants in mosques, schools and student groups and conducted massive surveillance of individuals, businesses and institutions solely on the basis of the premise that Muslim religious identity “is a permissible proxy for criminality.”

The court also said the plaintiffs may go forward with their First Amendment establishment clause and free exercise clause arguments, saying that the city's good motives in the wake of 9/11 can't save its impermissible actions.

“At bottom, the City needs something other than this threadbare argument based on the absence of subjective hostility to avoid a non-swinging strikeout,” it said.

Deja Vu

Examples of individual disloyalty don't prove group disloyalty and don't justify discriminatory action against the entire group, the court said.

Indeed, it said:

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 are examples that readily spring to mind.


Judges Julio M. Fuentes and Jane R. Roth joined the opinion.

Baher A. Azmy, of the Center for Constitutional Rights argued on behalf of the plaintiffs. Peter G. Farrell, of the New York City Law Department, argued for the city.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at