In the shock of the aftermath of the catastrophic attacks of Sept. 11, 2001, the New York Police Department, like others, realized that they were ignorant of the threat until the attacks. They resolved to say, "never again." A program of surveillance of Muslim communities, mosques, businesses and organizations, extending to New Jersey, began. As alleged by the plaintiffs in Hassan v. City of New York, their objective was to prevent another surprise attack by developing informants in every Muslim mosque, store or organization.
The Muslim clerics, students, employers, and others who filed suit charge that NYPD surveillance was prompted by mere "affiliation" with a Muslim mosque, school or business. The plaintiffs claim the program is stigmatizing, and deters people from associating with Muslim organizations and enterprises. The plaintiffs allege that using faith rather than evidence as a trigger for suspicion and surveillance is an impermissible stereotype, violating the equal protection clause of the Fourteenth Amendment.
U.S. District Judge William Martini struck the complaint, finding that the plaintiffs lacked standing to sue. They had alleged no injury sufficient to give them the stake in the controversy mandated by the case and controversy clause of the U.S. Constitution. But the U.S. Court of Appeals for the Third Circuit, crediting as true the allegations of the Muslim plaintiffs, disagreed. Subjecting people on the basis of their faith, not their conduct, to police surveillance is akin to a "dignitary tort." It is the discrimination on the basis of faith affiliation alone that is the "affront"; the "claimed discrimination itself [is] the primary injury."
The City responds that the police mean no harm, that they are motivated by the desire to protect against threats like that inflicted that terrible September day in 2001. But, as the unanimous panel finds, discrimination on the basis of religion is "inherently invidious," regardless of the sincerity or purpose of the actors. The courts, the panel notes, are guardians of the Constitution, which forbids the inference that "examples of individual disloyalty prove group disloyalty." We have been down that sad road before, the court observes: "Jewish Americans during the Red Scare, African Americans during the Civil Rights Movement, and Japanese Americans during World War II."
Like the court, we do not doubt the NYPD's protective intentions. But if the allegations are proven, they will be an illustration that once again we have faced a not-uncommon mistake: that group identity is a "permissible proxy for criminality," and that pervasive surveillance of such groups can be carried out. In our view the Third Circuit properly vacated the dismissal and allowed the action to proceed.
Editorial Board members Lawrence Lustberg and Edwin Stern recused from this editorial.