CCR and Muslim Advocateshave entered into a settlement agreement with the New York City Police Department (NYPD), ending litigation over the NYPD’s suspicionless surveillance of Muslim Americans in New Jersey. The NYPD spied on at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim Student Associations in New Jersey. The surveillance was revealed in 2011 by the Associated Press, in a series of Pulitzer-Prize-winning stories. In 2012, CCR and Muslim Advocates filed Hassan v. City of New York, the first lawsuit brought challenging the program.

The City approached CCR and Muslim Advocates to discuss settlement after a dramatic victory for the plaintiffs in the Third Circuit Court of Appeals. Roundly rejecting a lower court’s dismissal and reinstating the case, the appellate court noted the parallels between the targeting of Muslims in the post-9/11 era and the illegitimate targeting of other racial, religious, and political groups throughout history, including the targeting of the Japanese during World War II. In drawing these comparisons, the court recognized that, in addition to any material impact of the surveillance (such as lost business), the very fact of being targeted based on one’s religious affiliation is an injury. At this early stage of the case, the Third Circuit found the NYPD’s spying presumptively unconstitutional. The City saw the writing on the wall—it raised the possibility of settlement soon after the appellate ruling.

The settlement is the product of the courage and faith of the plaintiffs in this case, who took a stand against the most powerful police department in the country on behalf of Muslims in New Jersey, and also of the broader Muslim community in this region and across the country.  Along with efforts by activists, community leaders, and lawyers across the New York-New Jersey area, the settlement reflects a landmark challenge to religious profiling.  It holds the NYPD accountable for what it has done in the past, and promotes accountability to basic constitutional principles in law enforcement activity going forward.  

Specifically, under the settlement:

• The NYPD confirms the dismantling of the Zone Assessment Unit (a/k/a Demographics Unit), the designated units that undertook the Muslim spying. The NYPD agrees that it will not engage in the kind of religious-based surveillance at issue in this case. Specifically, the NYPD agrees that the provisions of the court-approved Handschu Guidelines, which limit law enforcement investigations of religious and speech activity, shall apply to any activity in New Jersey, and that it cannot conduct investigations where religion or ethnicity is even a motivating factor. 
• The NYPD has agreed to permit the plaintiffs’ counsel to review and make recommendations to upcoming Policy Guidelines that will implement protocols, including internal oversight protocols around intelligence division activities.
• Plaintiffs may review and make recommendations to the NYHPD training manual, especially regarding constitutional protection of religion.
• The NYPD will develop specific protocols limiting its ability to conduct enforcement activities in New Jersey.
• Certain records pertaining to the plaintiffs will be expunged.  
• The NYPD will pay $47,500 in damages to businesses and mosques that suffered economic harm as a result of being unlawfully targeted by the NYPD, and a total of $25,000 to individual plaintiffs because, as the Court of Appeals recognized, being targeted on the basis of one’s faith is stigmatizing, dehumanizing, and injurious.

The settlement itself is significant, but sits within a broader context of Muslim-American activism and organizing in the region and across the country to hold the NYPD accountable and promote transparency.  Along with the results achieved in the Handschu case and the Razacase, the Hassan settlement is part of a multifaceted strategy, across borders, to challenge the NYPD’s religious based profiling in which broad range of community leaders, activists, and legal teams have successfully limited the NYPD’s ability to presume criminality based on religion and act on a gross stereotype.  Specifically, in addition to the concrete reforms mentioned above, three distinctive features of the New Jersey contribution to this broader effort are especially notable. Namely:

1. The extension of protections of the Handschu Guidelinesoutside New York City—to New Jersey—in addition to New Jersey-based guarantees.
2. The decision of the Third Circuit Court of Appeals, which clearly said that the constitution prohibits policing based on religious or ethnic identity and likened the injury of stigmatic profiling to injury from segregation recognizedBrown v. Board of Educationand invoked the thoroughly discredited Korematsu v. United States.
3. Finally, this settlement was concluded in the age of Trump, where full-throated racism and xenophobia is part of White House personnel and policy. We hope the decision sends a strong signal that profiling of the sort that consumes this White House is unconstitutional and that there are communities who will mobilize and exert their power to challenge those activities—and win.

As my colleague, Senior Staff Attorney Omar Farah, said, this settlement “exemplifies the power of coordinated legal action and community mobilization and it cautions law enforcement everywhere to abandon identity-based policing in all its forms. Attempting to predict criminality on the basis of race or religion is repugnant and it never works – except to humiliate and criminalize targeted communities. We are deeply indebted to the Hassan plaintiffs and the Muslim communities behind the Raza and Handschu cases for picking up the mantle in the fight for equality under the law; the reforms and accountability the settlements produced will outlast this moment of virulent, White House-sponsored racism, xenophobia, and anti-Muslim bigotry.”