Editor’s note: While this relates to a lawsuit in New York, this figures to be a national issue. On February 9 at the UC Davis Law School, at noon, the Vanguard and Law School are co-sponsoring a forum on Racial Profiling of Muslims.
Landmark Settlement in Challenge to NYPD Surveillance of New York Muslims: What You Need to Know
By Hina Shamsi
A settlement in our challenge to NYPD surveillance of New York Muslims was announced today, heralding new safeguards to protect against bias-based and unjustified investigations of Muslim and other minority communities.
The settlement was announced in Raza v. City of New York, a lawsuit on behalf of three New York Muslims, two mosques, and a Muslim non-profit organization, who alleged they were swept up in the NYPD’s dragnet surveillance of Muslims. The ACLU, the New York Civil Liberties Union, and the CLEAR project at CUNY School of Law filed the suit in 2013. The law firm of Morrison & Foerster LLP joined the litigation team soon after. The lawsuit charged that the NYPD mapped Muslim communities and their institutions, sent officers and informants into mosques to monitor innocent religious leaders and congregants, and used other invasive means to spy on Muslims.
The settlement, which is subject to court approval, imposes a number of important safeguards to ensure the NYPD’s investigative practices are in line with the protections of the Constitution. These include a robust anti-religious-discrimination policy, safeguards to constrain intrusive investigatory practices, a limitation on the use of undercover officers and informants, and — critically — the appointment of an outside civilian representative to ensure all safeguards are followed and enforced.
This settlement is a win for New York Muslims and for all New Yorkers, who have a right to be free from discriminatory police surveillance and to practice their religion without stigma or fear. It’s also a win for the rest of the country as it marks the first time that any meaningful safeguards have been imposed to prevent discriminatory surveillance of American Muslim communities. At a time of rampant anti-Muslim hysteria and discrimination nationwide, this settlement sends a forceful message throughout the country, demonstrating that law enforcement can and must do its job without resorting to discriminatory practices.
What did the lawsuit challenge?
New York’s Muslim communities have long known that they were subject to invasive NYPD surveillance and investigation because of their religion. A Pulitzer Prize-winning series by The Associated Press reported that the NYPD placed countless innocent New Yorkers under police scrutiny, based on their religious faith and practice. NYPD officers monitored and mapped Muslim communities and their institutions, ranging from mosques to bookstores to restaurants, simply because they are Muslim. The department also sent paid infiltrators into mosques, student associations, and community events — including a wedding — to take photos and keep tabs on religious leaders, congregants, and community members.
The discriminatory surveillance sowed fear and mistrust, damaging the ability of New York’s Muslims to freely practice their religion. Religious leaders censored conversations with their congregants out of concern that they might be misinterpreted. Organizations and social networks were ripped apart by fears of police informants monitoring innocent conversations. Attendance at mosques diminished.
Our clients brought this lawsuit to enforce two of the Constitution’s most fundamental guarantees: freedom from government discrimination and freedom of religion. The lawsuit was motivated by the concerns of our clients, and those of New York Muslim communities and their allies, about the devastating effects of the surveillance, which stigmatized Muslims and chilled their speech and religious practice because of fear of attracting unwarranted police scrutiny.
How did the settlement come about?
In February 2014, after a new mayoral administration came into office, we and counsel in the Handschu case (described below) wrote to the new head lawyer for New York City, suggesting a meeting to discuss the possibility of a settlement. That meeting took place in April 2014, and all sides agreed to continue discussions.
In the meantime, we continued to litigate extensively. In July 2014, over the NYPD’s objection, the court in our Raza suit ordered the police department to turn over to us certain electronically stored communications of field-level NYPD personnel — including communications among undercover officers and the “handlers” of undercover officers and confidential informants who were involved in investigating our clients. Shortly after that, the parties agreed to stay the litigation to focus on settlement negotiations.
The parties finalized the settlement terms in January 2016.
What would today’s settlement change?
For the first time, the NYPD has committed to a robust anti-religious-discrimination policy, while also agreeing to a series of binding reforms to ensure that its investigations protect civil rights, comply with the Constitution, and are effective.
As a result of the proposed settlement, the NYPD will explicitly recognize the right to be free from investigations in which race, religion, or ethnicity is a substantial or motivating factor. There will now be presumptive time limits on investigations, precluding open-ended and unjustified investigations, as well as mandatory six-month reviews of ongoing investigations. The NYPD will also be required to consider the potential impact of its investigative techniques on religious activity. It will limit its use of undercovers or informants to situations in which the NYPD determines that the information sought cannot be obtained in a reasonably timely and effective way by less intrusive means.
Additionally, to initiate a preliminary inquiry, the NYPD will need articulable and factual allegations indicating possible criminal activity. In other words, the NYPD will not be able to open these investigations on the basis of a mere hunch — or bias. Critically, the settlement would also install a civilian representative within the NYPD, who will have the power and obligation to serve as a check on investigations directed at political and religious activity.
Finally, the NYPD will remove from its website its “Radicalization in the West” report, which sets out a discredited, junk-science-based theory purporting to identify how individuals transform into terrorists. That report provided the analytic underpinnings of discriminatory surveillance against Muslims. The NYPD affirms that it does not and will not rely on the report to open or extend investigations.
Didn’t the NYPD announce in 2014 that these practices ended?
Some people thought these practices ended in April 2014, when the NYPD announced it was disbanding the Zone Assessment Unit — formerly the Demographics Unit — but that unit didn’t cover all of the abuses we challenged, including the widespread use of informants who infiltrated community mainstays to spy on innocent people.
What is Handschu and what does it have to do with this case?
The Handschu guidelines came out of a decades-old class-action suit challenging the NYPD’s unconstitutional surveillance of political groups and activists. The guidelines, spelled out in a 1986 consent decree, regulate NYPD surveillance of political activity. Separately from our lawsuit challenging the NYPD program, the attorneys in the Handschu case brought a claim asserting that the NYPD’s surveillance of Muslim New Yorkers violated the Handschu guidelines. We negotiated the settlement in tandem with the lawyers in the Handschu case.
In 2003, the Handschu guidelines were weakened upon the insistence of the NYPD to give the police department wider latitude. If the Handschu court approves the modifications to the guidelines, they will be revised to reflect the safeguards achieved in the settlement. (See the proposed modifications here.)
Will this end the discriminatory surveillance of New York’s Muslims?
It certainly should. We believe that these safeguards will serve as a check against blanket surveillance of Muslim communities, thanks to the NYPD’s commitment to a robust equal protection standard, the additional safeguards that apply when the NYPD opens and seeks to renew investigations, and the limitations on the use of undercovers and informants.
Critically, if the new civilian representative observes violations of the Handschu guidelines, she must record and raise them directly with the police commissioner, who will be required to look into the investigation and report back to the civilian representative. If any violations are systematic, the civilian representative must report them directly to the judge assigned to the Handschu case.
What role can New York Muslims and other members of the public play in the implementation of the settlement?
Because the settlement involves modifications to the court-ordered Handschu guidelines, the federal judge presiding over the Handschu case must approve them so they become effective. Before it does so, that court will hold a hearing at which members of the public can and should weigh in. New Yorkers will also be able to provide input to the mayor about a strong candidate for an outside civilian representative to ensure oversight within the NYPD. The civilian representative will be appointed by the mayor, not the NYPD. The settlement in our case is subject to court approval if and when the Handschu court approves the proposed modifications in that case.