Last June, a collection of advocacy and religious organizations, businesses, and individuals in New York City and New Jersey filed a federal lawsuit against the City of New York, alleging the New York City Police Department’s (NYPD) “illegal targeting of New Jersey Muslims for surveillance based solely upon their religion.” In their complaint, the plaintiffs asked the court to declare such conduct unconstitutional; to preclude unlawful surveillance in the future; and to expunge records created by the NYPD as a result of its discriminatory surveillance practices. The plaintiffs lastly sought money damages.
The surveillance at issue, first uncovered and then extensively reported by the Associated Press, began in 2002 and continued for six years thereafter. According to plaintiffs’ amended complaint (which they filed in October 2012), the surveillance program never generated any leads or triggered further investigation into the targets.
The City of New York moved to dismiss the case on threshold grounds, for four essential reasons:
- First, the NYPD’s collection of information by itself is not unconstitutional (Point I).
- Second, plaintiffs’ amended complaint fails to satisfy the plausibility test because the conduct about which they complain is more likely the result of a non-discriminatory intent by the NYPD to deter and detect terrorism in the post 9/11 world, not an intent to discriminate against New Jersey Muslims based solely upon religion (Point II).
- Third, this Court lacks subject matter jurisdiction because plaintiffs allegations of injury are based upon fears and speculation neither of which satisfy the injury required for standing (Point III). In addition, all of plaintiffs alleged injuries arose only after the Associated Press released confidential NYPD documents and it is that disclosure that has resulted in plaintiffs’ alleged stigmatization.
- Fourth, plaintiffs’ request for the expungement of records fails for the same reasons that the collection of information is not unconstitutional in the first instance (Point IV).
The plaintiffs, unsurprisingly, opposed the motion. Their response brief’s primary arguments are as follows:
[T]he New York City Police Department’s massive surveillance program targeting Muslims in New Jersey, including these Plaintiffs, is based solely on religion and without any individualized suspicion of wrongdoing . . .
[The surveillance program] . . .violates some of the most basic civil rights enjoyed by all Americans, including American Muslims. Those protections include: equal protection of the law under the Fourteenth Amendment, free exercise of religion under the First Amendment, and freedom from the effects of the government’s disfavoring religion under the Establishment Clause.
. . .
Surveillance is, of course, permissible in certain circumstances, but it cannot be motivated exclusively on the basis of constitutionally protected criteria such as religion. Second, the City claims that Plaintiffs have failed to adequately plead their case, which is a remarkable assertion considering the abundance of specific factual allegations in the complaint, which are based largely upon the NYPD’s own documents. The City also provocatively suggests that the events of 9/11 could justify the undifferentiated surveillance of an entire religious community – a startling claim that threatens to upend decades of bedrock constitutional and civil rights principles.
Finally, the City argues that Plaintiffs lack standing to challenge the NYPD’s unlawful practices because their injuries resulting from the NYPD’s spying are not cognizable. Plaintiffs have sustained a wide range of injuries caused by the NYPD surveillance, including: (i) the stigma of religious discrimination; (ii) the change and reduction of their religious practices; (iii) the decreased participation by mosque congregants; and (iv) compensatory and nominal monetary damages. Thus, Plaintiffs injuries are a whole different species from the narrow “subjective chill” to expressive activity that the City’s brief contends cannot support standing.
The complaint’s amply detailed description of the City’s explicitly discriminatory surveillance program combined with the range of concrete injuries that program has caused Plaintiffs render the City’s motion to dismiss without merit. It should, therefore, be denied.
Which brings us to last Monday, when the City of New York submitted its reply. It largely reiterates the City’s earlier arguments:
On defendant’s 12(b)(6) motion, the crux of the matter is whether the plaintiffs have satisfied their burden of showing this Court that, applying common sense and judicial experience, the Court should conclude that plaintiff’s assertion—that all of the NYPD’s actions alleged in the first amended complaint were motivated solely based upon religion – is plausible, Plaintiffs have not done this. First, plaintiffs concede that the surveillance complained of in the first amended complaint is by itself constitutional. Thus, no inference can be drawn from the underlying acts to support their assertion of purposeful discrimination, Next, plaintiffs argue that the City had a policy and practice of purposeful discrimination. As explained in our moving papers and below, neither proposition is supported by the allegations in the first amended complaint (or in truth). Plaintiffs also unsuccessfully attempt to distinguish Ashcroft v. Iqbal. Contrary to plaintiffs’ argument, Iqbal’s plausibility test is applicable to all civil actions including those against municipalities. At bottom, plaintiffs do not dispute (as they can’t) the existence of the terror threat facing New York City, and that therefore the more likely explanation for the City’s actions is its effort to prepare for and prevent terrorism, rather than purposeful discrimination against all Muslims based solely upon their religion.
Not surprisingly, plaintiffs also seek to prevent this Court from considering the report of the Attorney General’s Office for the State of New Jersey, finding no wrongdoing on the part of the NYPD for the activities about which plaintiffs complain here. Even assuming the Court concludes that the finding is not admissible on this motion, it does not alter the inescapable conclusion that plaintiffs’ claim of purposeful discrimination is simply not plausible.
In opposition to defendant’s 12(b)(1) motion, plaintiffs fail to establish standing as they have failed to allege sufficient facts to satisfy the required showing that their injuries are concrete and particularized, Plaintiffs’ allegations in the first amended complaint of generalized fears based on generalized stigma against Muslims are not enough to establish standing. Finally, plaintiffs’ request for expungement should be denied as they have neither stated a claim nor established standing.