HASSAN et al v. THE CITY OF NEW YORK

Filing 40

OPINION. Signed by Judge William J. Martini on 2/20/14. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SYED FARHAJ HASSAN; THE
COUNCIL OF IMAMS IN NEW JERSEY;
MUSLIM STUDENTS ASSOCIATION OF
THE U.S. AND CANADA, INC.; ALL
BODY SHOP INSIDE & OUTSIDE;
UNITY BEEF SAUSAGE COMPANY;
MUSLIM FOUNDATION, INC.; MOIZ
MOHAMMED; JANE DOE; SOOFIA
TAHIR; ZAIMAH ABDUR-RAHIM; and
ABDUL-HAKIM ABDULLAH,

Civ. No. 2:12-3401 (WJM)
OPINION

Plaintiffs,
v.
THE CITY OF NEW YORK,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
This case involves the New York City Police Department’s surveillance of the
Muslim community in New Jersey following the attacks of September 11, 2001.
Plaintiffs are six Muslim individuals, two organizations that operate mosques, two
Muslim-owned businesses, and the Muslim Students Association at Rutgers
University. Plaintiffs allege that the New York City Police Department’s
surveillance program targeted Muslims solely on the basis of religion, thereby
violating their First and Fourteenth Amendment rights. Defendant City of New York
(“the City”) filed a motion to dismiss for lack of standing under Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Plaintiffs opposed. There was no oral argument. L.Civ.R.
78(b). For the reasons set forth below, Defendant’s motion to dismiss is
GRANTED.

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I.

BACKGROUND

In early 2002, the New York City Police Department (“NYPD” or “the
Department”) began a secret spying program (“the Program”) to infiltrate and
monitor Muslim life in and around New York City. (Amended Complaint
(hereinafter “Complaint”) at ¶ 2) According to Plaintiffs, the Program involved the
“painstaking” documentation of the details of Muslim life in New Jersey.
(Complaint at ¶ 47d)
The Complaint alleges that the NYPD used a variety of surveillance
techniques to infiltrate Muslim businesses and organizations. For example,
Plaintiffs allege the NYPD conducted continuous video surveillance of mosques via
cameras posted on light polls. (Complaint at ¶ 46) The NYPD photographed and
videotaped mosque congregants and collected their license plate numbers.
(Complaint at ¶ 4)
Undercover officers infiltrated Muslim organizations and monitored sermons,
meetings, conversations, and religious practices. (Complaint at ¶ 46-47, 50-51) The
undercover officers created many reports on their observations. These reports
named specific individuals without any evidence of wrongdoing. (Complaint at
¶ 51)
In their reports, the NYPD allegedly labeled many organizations as
“Locations of Concern.” (Complaint at ¶ 58) The Complaint alleges that this label
designated the subject organizations as demonstrating “a significant pattern of illegal
activity.” (Id.) The Complaint alleges that this label was false and stigmatizing
because the reports contain no evidence of illegal activity. (see id.)
The NYPD did not publicize the existence of the Program. The Program
became public knowledge in August 2011 when the Associated Press broke a story
about it. (See Complaint at ¶ 61; Declaration of Peter G. Farrell (“Farrell Decl.”) at
¶ 3) The Associated Press covertly obtained confidential NYPD documents and
published unredacted versions of these documents, as well as articles interpreting
the documents. (Farrell Decl. at ¶ 3; Moving Brief at 2-3, 4, 17-18) 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.” 1 (Complaint at ¶ 61)
Following the Associated Press publication about the secret Program, the Attorney General of New Jersey conducted
an investigation and concluded that that NYPD had not violated any New Jersey civil or criminal laws. (Farrell Decl.
at ¶ 4)
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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.
The organizational Plaintiffs allege that the Program impaired them from
engaging members in open political and religious discussion and from fulfilling the
spiritual needs of their members. (See Complaint at ¶ 15, 17, 23) The Plaintiffs that
operate mosques report a drop in attendance. (Complaint at ¶ 14) They also report
altering religious services and events to avoid being perceived as controversial.
(Complaint at ¶ 23) Four of the individually-named Plaintiffs complain that they
have avoided discussing religious and political topics, praying in public, or attending
mosque service in order to avoid law enforcement scrutiny. (Complaint at ¶ 13, 2630)
Plaintiffs Syed Hassan, Soofia Tahir, and Zaimah Abdur-Rahim fear that being
the subjects of surveillance will interfere with their careers. Hassan is a U.S. Soldier
and Tahir is expecting to begin a career in international social work. Both plaintiffs
allege that career advancement will require background checks and security
clearances. Both allege that their affiliations with organizations falsely labeled as
“threats” will hinder their career advancement. (Complaint at ¶ 13, 29) Hassan also
alleges that his career prospects will be harmed because his fellow soldiers and
superiors will have diminished trust in him and treat him differently upon learning
he was a regular congregant at a mosque that was the subject of surveillance.
(Complaint at ¶ 13)
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. (Complaint at ¶
31-32) The NYPD conducted surveillance on both these schools. Abdur-Rahim
alleges that as a result of working at two monitored schools, her future career
prospects will be diminished. (Complaint at ¶ 32)
Abdur-Rahim and her husband, Plaintiff Abdul-Hakim Abdullah, are coowners of the home in which one of the monitored schools was located. (Complaint
at ¶ 32, 34) A police surveillance photograph of this school appears on the internet
in connection with the NYPD’s surveillance Program. (Complaint at ¶ 32) AbdurRahim and Abdullah both allege that the value of their home has been diminished
because of its connection to the Program. (Complaint at ¶ 32, 34)

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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. (Complaint at ¶ 18-21) Both these Plaintiffs allege that business declined
when it became publically known that the NYPD was monitoring them. (Complaint
at ¶ 18, 20) Customers told the owner of Unity Beef Sausage Company that they
felt uncomfortable going to the store knowing that the NYPD was monitoring them.
(Complaint at ¶ 21) The Plaintiffs that operate mosques also complain of pecuniary
losses in the form of decreasing financial support. (Complaint at ¶ 15)
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. (Complaint at ¶ 73)
II.

RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF STANDING

The City argues that Plaintiffs’ Complaint should be dismissed for lack of
standing. A case should be dismissed under Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction if the Plaintiff has no standing. Ballentine v.
United States, 486 F.3d 806, 810 (3d Cir. 2007). Plaintiff bears the burden of
demonstrating standing “with the manner and degree of evidence required at the
successive stages of the litigation.” New Jersey Physicians, Inc. v. President of U.S.,
653 F.3d 234, 239 (3d Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). “Even at the motion to dismiss stage . . . ‘[i]t is a long-settled
principle that standing cannot be inferred argumentatively from averments in the
pleadings but rather must affirmatively appear in the record.’” Id. at 239 (quoting
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)).
Article III standing is “fundamental to the judiciary’s proper role in our system
of government.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). “If a
dispute is not a proper case or controversy, the courts have no business deciding it,
or expounding the law in the course of doing so.” Id. at 341.
The starting point for the analysis of Plaintiffs’ standing is Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992). In order to establish the “constitutional minimum
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of standing,” a party must establish three elements. First, the plaintiff must have
suffered an “injury in fact” – an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Second, there must be a causal connection between the injury and
the conduct complained of – the injury has to be “fairly . . . trace[able] to the
challenged action of the defendant, and not . . . the result [of] the independent action
of some third party not before the court.” Third, it must be “likely,” as opposed to
merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan, 504 U.S. at 560-61 (internal citations omitted). Plaintiffs have not satisfied
the first two prongs of the test.

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. Id. at 6-7.
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 broadscale investigation, conducted by themselves as private parties armed with the
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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.
B. Causation
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. (Moving Brief at 17.) 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.” (Plaintiffs’ Brief at 36.) Defendant’s argument
is more persuasive.
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:

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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.
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.

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Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief
can be granted. The moving party bears the burden of showing that no claim has
been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding
a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d
Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
Although a complaint need not contain detailed factual allegations, “a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
factual allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). While “[t]he plausibility standard is not akin to a ‘probability requirement’ . .
. it asks for more than a sheer possibility.” Id. at 678. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to relief.’” Id. at 662 (quoting
Twombly, 550 U.S. at 557).
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.

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“[D]etermining whether a complaint states a plausible claim is contextspecific, 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 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
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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.
IV.

CONCLUSION

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.
Date: February 20, 2014

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