Being Muslim Is Not Reasonable Suspicion for Surveillance, Says Third Circuit

Police profiling beaten back, civil rights lawsuit proceeds in federal court

A three-judge panel issued an opinion last week that being 'Muslim' does not constitute reasonable suspicion of criminal wrongdoing, a blow to police forces across the nation who divine criminal activity through bigoted determinations.

The Court of Appeals for the Third Circuit ruled last week in Hassan v. The City of New York (No. 14-1688) (2015 U.S. App. LEXIS 17776) the civil case be remanded to U.S. District Judge William J. Martini (appointed by George W. Bush in 2002 and in his tenure making a compelling case for the end of lifetime appointments for federal judges).

"Being Muslim can’t be the basis for law enforcement surveillance. That was the message from the Third Circuit last Tuesday when it told the plaintiffs in Hassan v. The City of New York that their lawsuit could go forward. The plaintiffs are suing over the New York Police Department’s suspicionless mass surveillance operation revealed by the Associated Press in 2011," reports Nadia Kayyali at the Electronic Frontier Foundation. See also Berlin, In These Times.

Notes Kayyali at Informed Comment:

The NYPD targeted the plaintiffs, who include student groups, imams, business owners, and individuals, based solely on religion. The court’s decision affirms what should be an obvious principle: being Muslim (or from a country with a lot of Muslims) is not reasonable suspicion. But it did more than that. It gave the City a history lesson that bears repeating:

'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.' (Hassan v. The City of New York, p.59)

The three judge-panel is composed of Thomas L. Ambro, Julio M. Fuentes, and Jane Richards Roth.

Concludes the opinion of the Court:

The allegations in Plaintiffs’ Complaint tell a story in which there is standing to complain and which present constitutional concerns that must be addressed and, if true, redressed. Our job is judicial.  We 'can apply only law, and must abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.'  Korematsu, (323 U.S. at 247) (Jackson, J., dissenting).  

We believe that statement of Justice Jackson to be on the right side of history, and for a majority of us in quiet times it remains so . . . until the next time there is the fear of a few who cannot be sorted out easily from the many. Even when we narrow the many to a class or group, that narrowing—here to those affiliated with a major worldwide religion—is not near enough under our Constitution.  '[T]o infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights.'  Id. at 240 (Murphy, J., dissenting).

How easy it is for basic Constitutional protections of our fellows to be systemically violated—the First and Fourteenth Amendments in this case— as the vast majority of us remain silent, even smug that the deplorable program of the New York City Police Department could never be directed at us, if we became aware at all.