How Far Will The Government NOT Go
In Spying Upon Us
SYED FARHAJ HASSAN, et. Al., Plaintiffs,
v. THE CITY OF NEW YORK, Defendant.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
2014 U.S. Dist. LEXIS 20887
February 20, 2014, Decided
February 20, 2014, Filed
In early 2002, the New York City Police Department ("NYPD") began a secret spying program to infiltrate and monitor Muslim life in and around New York City. The Complaint alleges that the NYPD used a variety of surveillance techniques to infiltrate Muslim businesses and organizations. For example, [*3] Plaintiffs allege the NYPD conducted continuous video surveillance of mosques via cameras posted on light polls overlooking the mosques, watching one came and who went, capturing the license plate numbers of all automobiles in the area.
Like the LAPD officers in the White v.Davis case, undercover NYPD officers joined Muslim organizations and, pretending to be congregants, monitored sermons, meetings, conversations, and religious practices. The undercover officers created many reports on their observations. These reports named specific individuals without any evidence of wrongdoing.
The NYPD secret spying program became public knowledge in August 2011 when the Associated Press broke a story about it. The Associated Press, apparently good at spying too, covertly obtained confidential NYPD documents and published unredacted versions of these documents, as well as articles interpreting the documents. Upon the Associated Press's publication of the documents, City officials publicly commented that the surveillance Program was focused on "threats" and documenting the "likely whereabouts of terrorists."
The problem for the plaintiffs, now, is how to establish standing to complain that the Government's spying conduct has harmed them in some legally recognizable manner. Collectively, Plaintiffs allege that the surveillance Program caused a series of spiritual, stigmatic, and pecuniary losses. Plaintiffs report diminished religious expression, employment prospects, property values, and revenue following the Associated Press's publication of its story about the Program. And that the police spying has had a chilling effect upon the williness of congregants to engage in open political and religious discussion. No kidding.
Abdur-Rahim is a teacher who has worked at two different Muslim girls' schools in Newark, one of which was run out of her own residence. Abdur-Rahim and her husband, Plaintiff Abdul-Hakim Abdullah, are co-owners of the home in which one of the monitored schools was located. A police surveillance photograph of this school appears on the internet in connection with the NYPD's surveillance Program. Abdur-Rahim and Abdullah both allege that the value of their home has been diminished because of its connection to the Program.
Plaintiffs All Body Shop Inside & Outside and Unity Beef Sausage Company are Muslim-owned businesses in Newark that were both subjects of the surveillance Program. Both these Plaintiffs allege that business declined when it became publically known that the NYPD was monitoring them. Customers told the owner of Unity Beef Sausage Company that they felt uncomfortable going to the store knowing that the NYPD was monitoring them.The Plaintiffs that operate mosques also complain of pecuniary losses in the form of decreasing financial support.
The Complaint does not allege that the surveillance itself was illegal or unconstitutional. Rather, the Complaint alleges that the motivation for the surveillance was solely animus against Muslims, which, if true, could mean the City violated Plaintiffs' First and Fourteenth Amendment rights to be free from religious discrimination.
Plaintiffs seek expungement of the surveillance records, an injunction to end the targeting of Plaintiffs on the basis of religion, as well as compensatory, economic, and nominal damages.
Case Dismissed; Why? No "standing."
A. Injury in fact
Plaintiffs do not allege an injury in fact.
In Laird v. Tatum, 408 U.S. 1 (1972), the Supreme Court considered allegations similar to those in this case and rejected them as a basis for Article III standing. In Laird, plaintiffs sought injunctive relief against the Army's surveillance of civilian political activity. The Army's information gathering system in Laird involved the attendance by Army intelligence agents at meetings that were open to the public, the preparation of field reports describing the meetings (containing the name of the sponsoring organization, the identity of the speakers, the number or persons present, and an indication of whether any disorder occurred), and the collecting of information from the news media. Id. at 6. This information was reported to Army Intelligence headquarters, disseminated from headquarters to major Army posts around the country, and stored in a computer data bank.
Note: Here, of course, the "meetings" were not "open to the public" but were open to congregrants of a religious faith, and the NYPD officers attended the "meetings" pretending to be congregants.
The Supreme Court identified the issue before it as "whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose." Id. at 10. Accordingly, the Court found that the plaintiffs lacked standing because "[a]llegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm [.]" Id. at 13-14. The plaintiffs were not able to demonstrate that they were chilled by "any specific action of the Army against them." Id. at 3. Thus, the Court refused to grant the plaintiffs what they really sought through the litigation: "a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross examination, to probe into the Army's intelligence-gathering activities." Id. at l4.
The allegations in this Complaint mirror those in Laird. For this reason, the court finds that there was no injury-in-fact.
Even if Plaintiffs had an injury in fact, they have not demonstrated the required causation element of standing. A party does not have standing when the injury-in-fact alleged is "manifestly the product of the independent action of a third party." Duquesne Light Co. v. U.S. E.P.A., 166 F.3d 609, 613 (3d Cir. 1999). Defendant argues that the Associated Press and not the City is the manifest cause of Plaintiffs' alleged injuries. Plaintiffs argue that no existing case law holds the action of a newspaper reporting on a government program as an "independent action of a third party." Defendant's argument is more persuasive.
Note: Do you see the silliness here? The Associated Press caused the damage, not the NYPD. As long as the spying was secret no harm no foul. Forget about the dossier, the reports, the video tape etc, squirreled away in the NYPD files which follow you forever.
None of the Plaintiffs' injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents. Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that Plaintiffs' alleged injuries flow from the Associated Press's unauthorized disclosure of the documents. The harms are not "fairly traceable" to any act of surveillance. See Lujan, 504 U.S. at 560-61.
The court is also persuaded by a distinction between this case and Philadelphia Yearly Meeting of Religious Soc. of Friends v. Tate, 519 F.2d 1335, (3d Cir. 1975). Like this case, Philadelphia Yearly involved media coverage of a police surveillance program. The media coverage publicly disclosed the names of certain groups and individuals on whom the Philadelphia Police Department was keeping surveillance records. Id. at 1337. In Philadelphia Yearly, the court reiterated the Supreme Court's holding in Laird that the surveillance itself was legal and that the surveillance's mere existence did not cause a concrete injury to the Plaintiffs. Id. at 1337-38.
However, the government in Philadelphia Yearly openly cooperated with the press in the publicizing of the story. The Third Circuit found this cooperation with the media improper. Id. at 1338. The court stated:
It is not apparent how making information concerning the lawful activities of plaintiffs available to non-police groups or individuals could be considered within the proper ambit of law enforcement activity, particularly since it is alleged that plaintiffs are subject to surveillance only because their political views deviate from those of the "establishment." Id. at 1338 (3d Cir. 1975).
Thus, the Philadelphia Yearly court found the claim justiciable on the grounds that the police department had an "absence of a lawful purpose" in disclosing on nationwide television that "certain named persons or organizations are subjects of police intelligence files." By contrast, the City of New York did not make any information about the NYPD's Program available to non-police groups. The Associated Press covertly obtained the materials and published them without authorization. Thus the injury, if any existed, is not fairly traceable to the City.
Note: So you see the injury is not in the fact that the Government spied, but in the fact that, without its intent, a third party discovered that the Government spied and publicly reported it. This is the Orwellian World we live in, in America today.
Although the Philadelphia Yearly court did find that the plaintiffs had a justiciable claim, had Philadelphia Yearly been decided today, the court would have had to dismiss it for lack of standing. The court in Philadelphia Yearly recognized that the plaintiffs' alleged injuries were "not concrete." Id. at 1339. Philadelphia Yearly was decided well before Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). In Lujan, the Supreme Court held that standing required a "concrete and particularized injury." Lujan, 504 U.S. at 560. Therefore, had Philadelphia Yearly reached the Third Circuit after Lujan, it would have been highly improbable that the plaintiffs would have had standing.
For these reasons, Plaintiffs have demonstrated neither the injury in fact element nor the causation elements of standing required to survive a Rule 12(b)(1) motion.
III. RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CALIM
Even if Plaintiffs did have standing to sue, Plaintiffs still have not plead facts sufficient to state a claim for discrimination in violation of the First or Fourteenth Amendments.
Where the claim is invidious discrimination based on religion, Plaintiffs must plead (and ultimately prove) that the Defendant acted with discriminatory purpose. Ashcroft v. Iqbal, 556 U.S. at 676 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-41 (1993)); Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001). "Purposeful discrimination requires more than 'intent as volition or intent as awareness of consequences. It involves a decisionmaker's undertaking a course of action 'because of, not merely in spite of, [the action's] adverse effects upon an identifiable group.'" Iqbal, 556 U.S. at 676-77 (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). It follows that, to state a claim based on a violation of a constitutional right, Plaintiffs must plead sufficient factual matter to show that the City adopted and implemented the surveillance program not for a neutral, investigative reason but for the purpose of discriminating on account of religion. Iqbal, 556 U.S. at 677, 682.
"[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Iqbal, 556 U.S. at 663-64 (citing Twombly, 550 U.S. at 556). Ashcroft v. Iqbal is particularly instructive here because of the similar context. Both Iqbal and this case grow out of the same tensions between security and the treatment of Muslims that is particular to the post-September 11 time period.
In Iqbal, the plaintiff alleged that he was detained as a "high interest" suspect and subjected to particularly harsh conditions of detention based upon his race, religion, or national origin. Although his allegations were consistent with a discriminatory purpose, there was a "more likely explanation" for his treatment as a "high interest" suspect. Id. at 681. As the U.S. Supreme Court stated in Iqbal:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim--Osama bin Laden--and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts [alleged] the arrests . . . were likely lawful and justified by [a] nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that "obvious alternative explanation" for the arrests, Twombly, 550 U.S. at 567, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.
Iqbal, 556 U.S. at 682.
For similar [*19] reasons, the Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.
For the reasons stated above, Defendant's motion to dismiss is GRANTED. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Unlike the California Supreme Court, writing in 1975, in White v. Davis, U.S. District Judge Martini ignores the obvious reality that the Government has plainly invaded the right of the Muslim congregants to privacy in the confines of their religious meeting house. Why, then, should we not expect the Judge Martinis on the Bench, to happily authorize the Government to force every homeowner in America to accept the installation of video cameras in their homes, in order that their private conversation can be instantly fed through the computer maze of the Government's multiple spying agencies? In the interest of security.