Case 2:12-cv-03401-WJM-MF Document 40 Filed 02/20/14 Page 1 of 10 PageID: 528

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

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

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)
1 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.

Date: February 20, 2014

/s/ William J. Martini _____________________________
WILLIAM J. MARTINI, U.S.D.J.

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Glenn Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104
Ravinder S. Bhalla LAW OFFICES OF BHALLA & CHO, LLC 333 Washington Street, Suite 203 Jersey City, New Jersey 07302
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT 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; and JANE DOE,
Plaintiffs,

Document Electronically Filed

v.

Civil Action No.

THE CITY OF NEW YORK,

Jury Trial Demanded

Defendant.

COMPLAINT

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PRELIMINARY STATEMENT 1. This is a civil rights action based upon the United States Constitution and 42 U.S.C. § 1983, to remedy the illegal targeting of New Jersey Muslims for surveillance based solely upon their religion by the New York City Police Department (“NYPD” or “Department”). Plaintiffs seek an injunction prohibiting the NYPD from targeting them for unconstitutional surveillance, expungement of all records made pursuant to past unlawful spying, a declaratory judgment, and nominal damages. 2. In early 2002, the NYPD began a secret spying program (“Program”) to infiltrate and monitor Muslim life in and around New York City. The Department has focused, in particular, upon New Jersey Muslims, conducting surveillance of at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two Muslim Student Associations, in addition to untold numbers of individuals who own, operate, and visit those establishments. The Department has also created over twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community. 3. As part of the Program, the NYPD takes photographs and videos and collects license plate numbers at mosques. It also utilizes undercover officers and informants to infiltrate and surveil Muslim communities, including mosques, Muslim Student Associations, and
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Muslim-owned businesses. Upon information and belief, the NYPD Program has not undertaken similar surveillance with respect to non-Muslim communities.
4. The NYPD has created a series of reports documenting in detail the information obtained from its surveillance of New Jersey Muslim communities through its surveillance Program, including a report focusing on the Muslim community in Newark (“Newark report”). Plaintiffs include mosques, Muslim Student Associations, and Muslim-owned businesses that were identified in these reports, as well as associations whose members were identified in these reports. Plaintiffs also include individual members of New Jersey mosques and Muslim Student Associations that were identified in the NYPD reports as subjects of the surveillance Program.
5. The NYPD Program is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that the Muslim community can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large.
6. Through the Program, the NYPD impermissibly discriminates on the basis of religion and singles out Plaintiffs’ religion for disfavor and unequal treatment by police. By targeting Muslim organizations and individuals in New Jersey for investigation solely because they are Muslims or believed to be Muslim, the Program casts an unwarranted shadow of suspicion and stigma on Plaintiffs and, indeed, all New Jersey Muslims. Each Plaintiff has
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suffered from the stigmatization that results from being singled out for surveillance on the basis of their religious beliefs.
7. Plaintiffs bring this lawsuit in order to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance simply because they profess a certain faith.
JURISDICTION AND VENUE 8. The Court possesses jurisdiction to hear this matter pursuant to 28 U.S.C. § 1331 because it alleges violation of the United States Constitution and 42 U.S.C. § 1983, and therefore raises questions of federal law. Jurisdiction is also based upon 28 U.S.C. § 1343 because relief is sought for the deprivation of Plaintiffs’ constitutional rights under color of State law. 9. Venue is proper in the District of New Jersey under 28 U.S.C. §1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this District.
PARTIES Plaintiffs 10. Syed Farhaj Hassan is a New Jersey resident and a Soldier in a Civil Affairs Brigade who has served in the United States Army Reserves since September 2001. He is thirtyfive years old and a U.S. Citizen. Hassan has served in Iraq (fourteen months of active duty and deployment to Iraq), during which time he worked in military intelligence, and has received numerous honors for his service, including the Army Service Ribbon, Global War on Terrorism
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Expeditionary Ribbon, National Defense Ribbon, Iraq Campaign Medal, Good Conduct Medal, three Army Commendation Medals, Army Achievement Medal, and Combat Action Badge. His address is 2403 Candlelight Court, Helmetta, NJ 08828.
11. Hassan is an observant Shi’a Muslim who attends mosque regularly. He has attended the Astaana-e-Zehra mosque most Fridays for the last two years and has been a congregant for 16 years. He also worships and attends events at the Masjid-e-Ali mosque approximately ten times per year, the Mehfile Shahe Khorasan mosque approximately four times per year, and the Imam-e-Zamana Foundation of North America mosque approximately twice per year. Each of these mosques is located in New Jersey and was identified in the NYPD reports as a subject of the NYPD surveillance Program.
12. Hassan has been unfairly targeted and stigmatized by the NYPD’s surveillance of his mosques as part of a program targeting Muslim organizations. He has decreased his mosque attendance significantly since learning that the mosques he attends have been under surveillance by the NYPD because he has a reasonable and well-founded fear that that his security clearance would be jeopardized by being closely affiliated with mosques under surveillance by law enforcement. Any blemish in his background check jeopardizes his security clearance and thus his career. Hassan is also concerned that his fellow soldiers, including his superiors, will have diminished trust in him and treat him differently – thereby harming his career prospects – if they learn he is a regular congregant at mosques under NYPD surveillance. He believes, reasonably, that if he decreases his attendance, he is less likely to be seen and/or recorded at the mosques.
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13. The Council of Imams in New Jersey (“Council” or “CINJ”) is a non-profit corporation organized under the law of New Jersey and based in the Newark area. Its address is 62-70 Howard Street, Irvington, NJ 07111. Among other things, the Council is formed to conduct Shuraa Baynahum (Mutual Consultation) for the purpose of establishing a whole and balanced society and facilitating the current and future circumstances that shape the continuous improvement of the Muslim Community. The Council is a membership organization comprising a dozen New Jersey mosques, at least two of which, Masjid al-Haqq and Masjid Ali K. Muslim, were surveilled as part of the NYPD’s Program in New Jersey. Photographs and descriptions of both of these mosques are included in the Department’s Newark report.
14. Masjid al-Haqq and Masjid Ali K. Muslim have been a part of the Newark community for thirty and over forty years, respectively. Leaders and congregants in both mosques have been unfairly targeted and stigmatized by the NYPD’s surveillance of their mosques as part of a program targeting Muslim organizations. Both mosques have also seen a decline in attendance and contributions as a result of the Department’s surveillance, which has directly harmed their ability to fulfill their religious missions.
15. Muslim Students Association of the U.S. & Canada, Inc. (“MSA National”) is a non-profit corporation organized under the law of Indiana, based at 6555 South 750 East, Plainfield, IN 46168. MSA National serves Muslim students during their college and university careers by facilitating their efforts to establish, maintain and develop local MSA chapters. It strives to facilitate networking, educating and empowering the students of today to be citizens of
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tomorrow’s community. To achieve its objectives, MSA National develops tools and resources to facilitate information sharing and to unite students across North America.
16. Two of MSA National’s members, the Muslim Student Associations for the Rutgers University campuses at Newark and New Brunswick, were subject to surveillance in New Jersey through the NYPD Program. These MSAs were singled out for surveillance by the NYPD simply because their membership is made up of Muslim students. Student organizations affiliated with other religious denominations were not subject to similar surveillance. Surveillance of the MSAs casts an unwarranted cloud of suspicion upon these MSAs and their membership, unjustly stigmatizing them, and diminishing their ability to fulfill their spiritual and practical missions. As affinity student groups, MSAs subject to surveillance of their activities and discussions are diminished in their ability to establish viable student organizations that students will feel secure joining and participating in, and that will embark upon integral partnerships with campus administrators and other organizations and fulfill the spiritual needs of their members in a confidential manner.
17. All Body Shop Inside & Outside is a New Jersey corporation that owns and operates a retail store and cafe in downtown Newark (20 Branford Place, Newark, NJ 07102). The store was founded in 1998. Its owners, Gary Abdul Karim Abdullah and Hamidah Z. Abdullah, are Muslims who have lived and worked in the Newark community for their entire lives. All Body Shop Inside & Outside was identified in an NYPD report as “Hamidah’s Body Shop” and was subject to surveillance as part of the NYPD Program.
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18. The owners of All Body Shop Inside & Outside have been unfairly targeted and stigmatized by the NYPD’s surveillance of their business as part of a program targeting Muslim organizations. The NYPD’s Program has also harmed their business by scaring away customers. A photograph and description of their store is included in the NYPD’s Newark report, which has been widely publicized. Since people learned that All Body Shop Inside & Outside was under NYPD surveillance, the number of customers visiting the store has decreased and some customers have told the owners by telephone that they did not feel comfortable visiting the location because of the threat of NYPD surveillance.
19. Unity Beef Sausage Company (“Unity”) is a New Jersey corporation that owns and operates Unity Brand Halal Products, Inc., a halal meat store in downtown Newark (94 Orange Street, Newark, New Jersey 07102). It has a store for retail and wholesale and a building for manufacturing. Founded in 1968, Unity is owned by Akbar Salaam, who is Muslim. Unity was surveilled as part of the NYPD Program in New Jersey, and a photograph and description of the Unity store appears in the NYPD’s Newark report, which has been widely publicized.
20. Unity’s owner, his employees, and his customers have been unfairly targeted and stigmatized by the surveillance of Unity as part of a program targeting Muslim organizations. The NYPD surveillance has also hurt business at the Unity halal meat store. Many regular customers have not been coming to the store since the NYPD’s Newark report was made public. For example, the store typically experiences a rush of business after Friday prayer services, when many Muslims do food shopping and run errands. That rush slowed considerably immediately
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after the Newark report became public. Some customers have called to ask the owner about the NYPD’s surveillance and told him they are no longer comfortable visiting the store. The store’s owner now fears conducting his legitimate business; he is concerned that anyone who comes in or looks at him from across the street might be an NYPD spy.
21. Muslim Foundation Inc. (“MFI”) is a New Jersey non-profit corporation that owns and operates the Masjid-e-Ali mosque, located at 47 Cedar Grove Lane, Somerset, NJ, 08873. MFI’s congregation comprises approximately 250 families. The Masjid-e-Ali mosque was surveilled as part of the NYPD’s Program in New Jersey, and was identified in an NYPD report as a subject of surveillance.
22. Leaders and congregants in MFI have been unfairly targeted and stigmatized by the NYPD’s surveillance of their mosque as part of a program targeting Shi’a Muslim organizations. The NYPD’s surveillance of the mosque, and its inclusion in NYPD reports casts an unwarranted cloud of suspicion upon the mosque and its membership. MFI has also changed its religious services and programming as a direct result of the NYPD surveillance. Prior to learning that it had been surveilled by the NYPD, the mosque hosted a variety of visiting Islamic scholars and religious authorities to provide guidance to the congregation on how to conduct their daily lives in accordance with religious laws. These discussions are integral to MFI’s religious mission, which includes promoting the lives of its congregants in accordance with divine laws, fellowship, and religious discourse. After learning that it had been targeted for surveillance, MFI decided not to invite otherwise amenable religious authorities who might
9

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nevertheless be perceived to be controversial because of their previous spiritual or religious training in Iran, views on or history of vocalizing religious edicts aligned with certain prominent centers of learning in Shi’a Islam, or their opinions on the proper role of the Islamic faith and scholarship in the daily lives of adherent Muslims; MFI’s leaders feared that the views of such religious authorities and guides would be attributed to the mosque’s membership. As a result, MFI’s ability to fulfill its religious mission has been harmed.
23. Moiz Mohammed is a New Jersey resident (22 Woodbridge Street, New Brunswick, NJ 08901) currently enrolled as a full-time student at Rutgers New Brunswick, where he is pursuing a degree in Molecular Biology and Biochemistry. He is a sophomore and has been active in the Muslim Students Association (MSA) since his freshman year. The Rutgers New Brunswick MSA was surveilled as part of the NYPD’s Program in New Jersey, and was identified in an NYPD report as a subject of surveillance.
24. Mohammed has been unfairly targeted, and stigmatized by the NYPD’s surveillance of his MSA as part of a program targeting Muslim organizations. The NYPD’s surveillance of his MSA unfairly targets him and other Muslim students. Members of other religious groups are not subjected to such surveillance and monitoring. The stigma now attached to being a Muslim member of the MSA leads Mohammed to avoid discussing his faith or his MSA participation in public and to avoid praying in places where non-Muslims might see him doing so. The NYPD’s unwarranted surveillance has contributed to a stigma upon Mohammed
10

Case 2:12-cv-03401-SDW-MCA Document 1 Filed 06/06/12 Page 11 of 25 PageID: 11
that students of other faiths do not suffer because their religious student groups have not been targeted.
25. Jane Doe is a New Jersey resident currently enrolled as a full-time student at Rutgers New Brunswick in her junior year and is active in the Muslim Students Association. She will be moving the Court for leave to proceed under pseudonym after counsel for Plaintiffs confers with counsel for Defendant.
26. Doe suffers the same stigma as Mohammed as a result of the NYPD’s surveillance of the activities of Muslims on campus. She experiences this stigma in a variety of ways. For instance, she no longer discusses religious topics at MSA meetings, such as the differences between Sunni and Shi’a Islam, because of a reasonable fear that such discussions would be misunderstood and taken out of context by those suspicious of her religion. She also has a reasonable fear that her discussions with other students and other participation in MSA activities may be observed by NYPD and taken out of context, resulting in unwarranted scrutiny premised solely on her Muslim faith and participation in religious discourse.
Defendant 27. The City of New York is a municipal corporation duly incorporated and existing pursuant to the laws of the State of New York and having its principal offices at City Hall, New York, NY 10007. The City of New York has established and maintains the NYPD as a constituent department or agency. The NYPD acts as the City of New York’s agent in the area of law enforcement. The NYPD’s operations include the activities described herein.
11

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STATEMENT OF FACTS The NYPD Program Intentionally Targets Muslims for Surveillance on the Basis of Religion
28. In January 2002, the NYPD created a secret spying program to analyze and surveil the Muslim community in New York City and nearby regions, including Muslim religious institutions, schools, businesses, associations, and congregations. The Department created the Program following the September 11, 2001, attacks based on the mistaken and unconstitutional premise that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that Muslims can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large, simply because of their religion. This Program reflects a policy, custom, usage and/or practice of the NYPD to target the Muslim community for surveillance solely on the basis of religion.
29. As part of this Program, the NYPD specifically and purposefully targets mosques, Muslim-owned businesses, Muslim Student Associations, and Muslim schools for surveillance based only upon the religious beliefs of their owners or members. The NYPD Program intentionally targets only the Muslim faith and does not undertake similar surveillance with respect to any other religious group.
30. The Department has focused, in particular, upon New Jersey Muslims as part of its Program. The Department has conducted surveillance of at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two Muslim Student Associations in New
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Jersey, in addition to an untold number of individuals who own, operate, and visit those establishments. The Department has also created over twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community. As part of the Program, it has also created a series of reports documenting in detail the information obtained from its surveillance of New Jersey Muslim communities.
31. The Program uses a variety of methods to spy on Muslims, such as taking video and photographs at mosques, Muslim-owned businesses, and schools, sending undercover officers to those locations to engage in pretextual conversation to elicit information from proprietors and patrons, planting informants in mosques, and monitoring websites, listserves, and chat rooms. The Department does not conduct similar surveillance of houses of worship, businesses, and schools associated with other religions.
32. In addition to targeting Muslims by focusing on mosques, Muslim-owned businesses, and other Muslim-associated organizations as subjects of surveillance, the Program also intentionally targets Muslims by using ethnicity as a proxy for faith.
33. As part of the Program, the Department has designated twenty-eight countries and “American Black Muslim” as “ancestries of interest.” The twenty-eight countries are: Afghanistan, Albania, Algeria, Bahrain, Bangladesh, Chechnya, Egypt, Guyana, India, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya, Morocco, Pakistan, Palestine, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, U.A.E., Uzbekistan, Yemen, and Yugoslavia. Those
13

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twenty-eight countries constitute about 80% of the world’s Muslim population. All but five of the countries on the list are more than three-fourths Muslim. Of these five, all but two countries are majority Muslim and one of the remaining two countries is India, which alone is home to 11% of the world’s Muslims.
34. However, the Department does not surveil all people and establishments with “ancestries of interest,” but expressly chooses to exclude people and establishments with such “ancestries” if they are not Muslim. Thus, for example, the NYPD does not surveil Egyptians if they are Coptic Christians, Syrians if they are Jewish, or Albanians if they are Catholic or Orthodox Christian.
35. The NYPD’s report analyzing Newark observes: “There appears to be a sizable and growing non-immigrant, African-American Muslim population.” No analysis of nonMuslim African-Americans appears in the Newark report.
36. The NYPD’s surveillance is not limited to those Muslims with “ancestries of interest.” In its surveillance of Newark, the Department has observed that the largest immigrant communities in that city are from Portugal and Brazil, countries not found on its list of twentyeight “ancestries.” Nevertheless, the Department’s Newark report examines these communities for the presence of Muslims: “No Muslim component within these [Portuguese and Brazilian] communities was identified, with the exception of one identified location being owned and operated by a Brazilian Muslim of Palestinian descent.” No non-Muslim individuals or
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establishments from Newark’s Portuguese or Brazilian immigrant communities are identified in the NYPD’s Newark report. The surveillance and analysis are concerned only with Muslims.
NYPD’s Surveillance Activities Against Muslims 37. The NYPD Program utilizes numerous forms of surveillance in its monitoring of Muslim communities, including its surveillance of Muslim communities in New Jersey. The NYPD Program does not undertake similar surveillance of non-Muslim communities. 38. As part of the Program, NYPD officers snap pictures, take video, and collect license plate numbers of congregants as they arrive at mosques to pray, making records of those in attendance. They also mount surveillance cameras on light poles and aim them at mosques. Officers can control the cameras with their computers and use the footage to help identify worshippers. The NYPD has not conducted similar surveillance at non-Muslim houses of worship. 39. The Department also utilizes informants and undercover officers, who report, among other things, which businesses are owned or frequented by Muslims, which stores sell halal meat, the subject of conversations heard at mosques, and where religious schools are located. For example:
a. The NYPD uses undercover officers called “rakers” to monitor daily life in neighborhoods believed to be heavily Muslim. Rakers surveil places like bookstores, bars, cafes, and nightclubs. They do so not based upon evidence of wrongdoing, but
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because the Department believes it should monitor Muslim communities more than other communities. b. The NYPD also has informants called “mosque crawlers” who monitor sermons and conversations in mosques and report back to the NYPD. Mosque crawlers are used at particular mosques as part of a broader plan for blanket surveillance of Muslim communities. The Department has sought to have an informant inside every mosque within a 250-mile radius of New York City and has, in fact, prepared an analytical report on every mosque within 100 miles, including Plaintiff MFI and at least two of the members of CINJ. Upon information and belief, the NYPD's mosque crawlers have monitored thousands of prayer services in mosques, collecting detailed information about worshippers simply because they are Muslim, without evidence they engaged in any wrongdoing. c. Rakers and mosque crawlers have monitored discussions in mosques about the controversy surrounding the publication of a Danish artist’s cartoons of the Prophet Muhammad, the results of which were included in a February 2006 report. That report documents twenty-three conversations at twenty mosques. None of the information collected showed any indication of criminal activity. The NYPD prepared a similar report after an accidental plane crash in Manhattan in October 2006. Upon information and belief, the Department prepares many such reports targeting Muslims, none of which even allegedly involve any wrongdoing.
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d. Using mosque crawlers, rakers, and other officers and agents, the NYPD has documented painstaking details of Muslim life, including in New Jersey. For example, Department surveillance reports note the fact that flyers are posted in shops advertising for Quran tutoring; a picture of a mosque hangs in a grocery store; a restaurant serves “religious Muslims;” customers visit a Dunkin’ Donuts after Friday prayer; a restaurant is located near a particular mosque; employees or customers of establishments are observed wearing “traditional clothing;” Muslim prayer mats are hanging on the wall at an Indian restaurant; and a store posts a sign that it will be closed on Friday in observance of Friday prayer. 40. The NYPD Program has not utilized informants and undercover agents to undertake similar surveillance of non-Muslim communities. 41. The NYPD also closely monitors the activities of Muslim Student Associations at colleges and universities in New York, New Jersey, Connecticut, and Pennsylvania. It places informants or undercover officers in many MSAs, without any indication whatsoever of criminal activity or any connection whatsoever to wrongdoing. 42. NYPD officers monitor the web sites of Muslim student organizations, troll chat rooms, and talk to students online. Undercover NYPD officers sometimes pose as students to attend MSA events. One officer went on a rafting trip with an MSA and recorded how often students prayed and that they discussed religious topics.
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43. On a weekly basis, the Department also prepares an MSA Report on schools, including reports on Rutgers New Brunswick and Rutgers Newark. Its reports include the names of professors, scholars, and students without any indication that they engaged in wrongdoing.
44. The Department does not conduct similar blanket surveillance of the activities of Christian, Jewish, or other religious student groups.
45. To facilitate its surveillance of entire Muslim communities, the NYPD also creates maps indicating the location of mosques, restaurants, retail establishments, and schools owned by or serving Muslims, as well as ethnic populations from heavily Muslim countries. The Department has over twenty such maps of Newark, New Jersey.
46. The NYPD has not compiled similar maps of non-Muslim communities. 47. The NYPD also inspects records of name changes and compiles databases of new Muslim converts who take Arabic names, as well as Muslims who take names that are perceived to be “Western.” The Department does not compile similar information for other kinds of name changes. 48. The NYPD’s surveillance of the Muslim community in New Jersey, including its surveillance of Plaintiffs, is extensive and sustained. For example, undercover NYPD officers participating in the Program operated a base of operations in an off-campus apartment near Rutgers New Brunswick. On information and belief, the NYPD Program in New Jersey, including its surveillance of Plaintiffs, is ongoing.
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The NYPD Program Harms the Plaintiffs and the Muslim Community as a Whole 49. The NYPD’s blanket surveillance of Muslims casts guilt on all people of that faith by suggesting that Muslims pose a special threat to public safety. As targets of the NYPD’s discriminatory Program, the Plaintiffs and other New Jersey Muslims have, as a result, been gravely stigmatized and will continue to suffer, significant stigma. 50. The Department’s Newark report analyzes more than forty “Locations of Concern,” which include mosques, restaurants, retail establishments, and a school for grades one through four recognized by the New Jersey Department of Education. The report defines “Location of Concern” as, among other things, a “location that individuals may find coconspirators for illegal actions” and a “location that has demonstrated a significant pattern of illegal activities.” But these establishments, which include Plaintiffs Unity halal meat store, All Body Shop Inside & Outside, and two of the mosques represented by the Council of Imams in New Jersey, were surveilled and documented in the report only because they are Muslim-owned or -affiliated, not because there has been any demonstrated pattern of illegal activities or for any other legitimate reason. Nonetheless, the Department’s use of such a description for mosques, businesses, and schools casts a dark shadow of suspicion on congregations, customers, lenders, children and parents – indeed, the community as a whole – gravely stigmatizing and otherwise having a significant deleterious impact upon them. 51. The NYPD causes similar damage in its report on the threat to New York City of a potential U.S. - Iran conflict. Among the “key findings” and “recommended actions,” included
19

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in the report are to “[e]xpand and focus intelligence collections at Shi'a mosques.” While the report observes that “the majority of Iranian nationals residing in the US are either Zoroastrian, Jewish, or Christian,” the report only targets Muslim institutions, without any justification. Moreover, the report’s focus on Shi’a Muslim mosques sweeps up vast numbers of individuals with no connection to Iran or to any threat arising from a potential conflict between the United States and Iran. Indeed, the report observes that the Shi’a Muslim community includes many individuals of Iraqi, Lebanese and Pakistani descent. Yet the report targets the Shi’a Muslim community as an undifferentiated whole. The report therefore unmistakably targets Muslim institutions simply because they are Muslim and unconstitutionally deploys religious affiliation as a criterion for selection of law-enforcement surveillance targets, or as a proxy for criminality.
52. The U.S – Iran report describes organizations believed to pose serious threats to New York City, such as Hezbollah and Hamas, supporters of those organizations and their locations, followed by a list of “Other Shi'a Locations in the vicinity of NYC.” This list of twelve Shi’a Muslim locations includes six in New Jersey, including Plaintiff MFI and its Masjid-e-Ali mosque, as well as three additional mosques attended by Plaintiff Hassan (Astaanae-Zehra, Mehfile Shahe Khorasan, and Imam-e-Zamana Foundation of North America). The clear implication of the report is that Shi’a mosques pose a threat to public safety unlike other establishments and places of worship. But under the NYPD’s Program the only reason that these mosques, including Plaintiffs, were included in the report is that they are affiliated with Shi’a Islam, not because of any wrongdoing or any other legitimate reason.
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53. The harm the NYPD inflicts on Plaintiffs and Muslim communities results not just from the surveillance, and from the stigma of being targets of discrimination, but from the public statements New York City officials make in support of the surveillance. These statements have acknowledged the existence of the NYPD program, describing it as focused on “threats” and as an attempt to document the “likely whereabouts of terrorists.”
54. Because the NYPD Program did not limit itself to threats or terrorists but rather targeted the Muslim community as a whole, such statements suggest that all Muslim establishments are “threats” or likely to harbor terrorists, thereby engendering suspicion and distrust of Muslims and Muslim establishments, including Plaintiffs, affecting people’s livelihoods, and damaging the fabric of Muslim communities and the broader society within which Muslims live.
55. New York City officials have made clear that they believe the NYPD's targeting of Muslims for surveillance on the basis of their religion is appropriate and will continue. Discussing the surveillance, Mayor Bloomberg has stated publicly, “We’re doing the right thing. We will continue to do the right thing.” Commissioner Kelly has said, “We’re going to continue to do what we have to do to protect the city.” Under our Constitution, however, what the NYPD may not do is to continue to target Muslims for investigation and pervasive surveillance simply because they are Muslims.
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CLAIMS FOR RELIEF FIRST CAUSE OF ACTION VIOLATIONS OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION 56. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 57. The Defendant’s Program impermissibly and intentionally discriminates against Plaintiffs because of their religion. As a direct and proximate result of the acts of the Defendant and its agents, the Plaintiffs have therefore been deprived of their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. SECOND CAUSE OF ACTION VIOLATIONS OF THE FIRST AMENDMENT TO THE U.S. CONSTITUTION 58. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 59. The Defendant’s Program is neither neutral with respect to religion, nor of general applicability. The Program instead singles out Plaintiffs’ religion for disfavor and intentionally denigrates Islam. As a direct and proximate result of the acts of the Defendant and its agents, the Plaintiffs have therefore been deprived of their rights under the Free Exercise Clause and the Establishment Clause of the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
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THIRD CAUSE OF ACTION EXPUNGEMENT ACTION AT COMMON LAW 60. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 61. Government entities may not maintain records where the harm to the Plaintiffs caused by the existence of records outweighs the utility of their continued maintenance, especially where the information contained in the records was compiled by unlawful methods. 62. Defendants’ have compiled records identifying mosques represented by Plaintiffs CINJ and MFI, the Rutgers Newark and Rutgers New Brunswick MSA chapters, represented by Plaintiff MSA National, Plaintiff Unity Beef Sausage Company, and Plaintiff All Body Shop Inside & Outside as targets of surveillance and investigation. Upon information and belief, the NYPD also maintains records identifying Plaintiffs Hassan, Mohammed and Doe as targets of surveillance or investigation. These records are likely to command attention from law enforcement officials, other agencies of government, and the public at large, to the detriment of the Plaintiffs. 63. Maintenance of these records, which are the fruits of the Defendant’s unconstitutional actions and which falsely identify the Plaintiffs as linked to the threat of terrorism, creates harms that significantly outweigh their utility, if any.
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PRAYER FOR RELIEF WHEREFORE the Plaintiffs respectfully request that the Court:
(a) Declare that the Defendant’s actions violate the Plaintiffs’ rights under the First and Fourteenth Amendments of the United States Constitution;
(b) Enjoin further violations of the Plaintiffs’ constitutional rights, including but not limited to an injunction that requires the Defendant to refrain from targeting Plaintiffs for surveillance on the basis of religion;
(c) Order the expungement of all records of Plaintiffs made pursuant to past unlawful spying;
(d) Award Nominal Damages for the harms suffered by Plaintiffs; (e) Award attorney’s fees and costs associated with this action; and (f) Award any further relief as is just and proper and any other relief as allowed by law.
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Respectfully submitted, Glenn M. Katon (motion to appear pro hac vice forthcoming) Farhana Khera (motion to appear pro hac vice forthcoming) MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104 (415) 692-1484 (tel) (415) 765-1774 (fax) glenn@muslimadvocates.org /s/ Ravinder S. Bhalla Ravinder S. Bhalla LAW OFFICES OF BHALLA & CHO, LLC 333 Washington Street, Suite 203 Jersey City, New Jersey 07302 (201) 610-9010 (201) 610-9030 rbhalla@rsblawfirm.com Attorneys for Plaintiffs Dated: June 6, 2012
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Case 2:12-cv-03401-SDW-MCA Document 1-1 Filed 06/06/12 Page 1 of 1 PageID: 26
ATTACHMENT TO CIVIL COVER SHEET
I. (a) PLAINTIFFS
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; and JANE DOE
(b) County of residence of First Listed Plaintiff: Middlesex County, NJ.
(c) Attorneys (Firm Name, Address, Telephone Number, and Email Address)
Glenn M. Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104 (415) 692-1484 glenn@muslimadvocates.org
Ravinder S. Bhalla LAW OFFICES OF BHALLA & CHO, LLC 333 Washington Street, Suite 203 Jersey City, New Jersey 07302 (201) 610-9010 rbhalla@rsblawfirm.com

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 Case 2:12-cv-03401-WJM-MF Document 10 Filed 10/03/12 Page 1 of 30 PageID: 64

Glenn Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104
Ravinder S. Bhalla LAW OFFICES OF BHALLA & CHO, LLC 333 Washington Street, Suite 203 Jersey City, NJ 07302
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT 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 ABDULHAKIM ABDULLAH

Case No. 2:12-cv-03401-SDWMCA

Plaintiffs,

Jury Trial Demanded

v.

THE CITY OF NEW YORK,

Defendant.

FIRST AMENDED COMPLAINT

Case 2:12-cv-03401-WJM-MF Document 10 Filed 10/03/12 Page 2 of 30 PageID: 65
PRELIMINARY STATEMENT 1. This is a civil rights action based upon the United States Constitution and 42 U.S.C. § 1983, to remedy the illegal and unconstitutional targeting of New Jersey Muslims for surveillance based solely upon their religion by the New York City Police Department (“NYPD” or “Department”). Plaintiffs seek an injunction prohibiting the NYPD from targeting them for unconstitutional surveillance, expungement of all records made pursuant to past unlawful spying, a declaratory judgment, and compensatory and nominal damages. 2. In early 2002, the NYPD began a secret spying program (“Program”) to infiltrate and monitor Muslim life in and around New York City. In all its years of operation, the Program has never generated a single lead. 3. The Department has focused, in particular, upon New Jersey Muslims. It has conducted surveillance of at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two Muslim Student Associations, in addition to an untold number of individuals who own, operate, and visit those establishments. The thoroughness and precision of the Department’s surveillance is reflected in its creation of more than twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community. 4. As part of the Program, the NYPD takes photographs and videos and collects license plate numbers at mosques. The Department also utilizes undercover officers and
2

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informants to infiltrate and surveil Muslim communities, including mosques, Muslim Student Associations, and Muslim-owned businesses. Upon information and belief, the NYPD Program has not undertaken such surveillance with respect to non-Muslim communities in New Jersey.
5. The NYPD has created a series of reports documenting in detail the information obtained from its surveillance of New Jersey Muslim communities through its surveillance Program, including a report focusing on the Muslim community in Newark (“Newark report”). Plaintiffs include mosques, the national umbrella Muslim student association, Muslim-owned businesses, and the principal of an Islamic school for girls, that were identified in these reports, as well as associations whose members were identified in these reports. Plaintiffs also include individual members of New Jersey mosques and Muslim Student Associations that were identified in the NYPD reports as subjects of the surveillance Program.
6. The NYPD Program is founded and operated upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law enforcement surveillance targets, or that it is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.
7. Through the Program, the NYPD impermissibly discriminates on the basis of religion and singles out Plaintiffs for disfavorable and unequal treatment by police. By targeting Muslim entities and individuals in New Jersey for investigation solely because they are Muslim
3

Case 2:12-cv-03401-WJM-MF Document 10 Filed 10/03/12 Page 4 of 30 PageID: 67
or believed to be Muslim, the Program casts an unwarranted shadow of suspicion and stigma on Plaintiffs and, indeed, all New Jersey Muslims. Each Plaintiff has suffered from the stigmatization that results from being singled out for surveillance on the basis of their religious beliefs, which is a harm that invites additional prejudice and discrimination against them and all American Muslims.
8. Plaintiffs bring this lawsuit in order to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith.
JURISDICTION AND VENUE 9. The Court possesses jurisdiction to hear this matter pursuant to 28 U.S.C. § 1331 because it alleges violations of the United States Constitution and 42 U.S.C. § 1983, and therefore raises questions of federal law. Jurisdiction is also based upon 28 U.S.C. § 1343 because relief is sought for the deprivation of Plaintiffs’ constitutional rights under color of State law. 10. Venue is proper in the District of New Jersey under 28 U.S.C. §1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this District.
4

Case 2:12-cv-03401-WJM-MF Document 10 Filed 10/03/12 Page 5 of 30 PageID: 68
PARTIES Plaintiffs 11. Syed Farhaj Hassan is a New Jersey resident and a Soldier in a Civil Affairs Brigade who has served in the United States Army Reserves since September 2001. He is thirtyfive years old and a U.S. Citizen. Hassan has served in Iraq (fourteen months of active duty and deployment to Iraq), during which time he worked in military intelligence, and has received numerous honors for his service, including the Army Service Ribbon, Global War on Terrorism Expeditionary Ribbon, National Defense Ribbon, Iraq Campaign Medal, Good Conduct Medal, three Army Commendation Medals, Army Achievement Medal, and Combat Action Badge. His address is 2403 Candlelight Court, Helmetta, NJ 08828. 12. Hassan is an observant Shi’a Muslim who attends mosque regularly. He has attended the Astaana-e-Zehra mosque most Fridays for the last two years and has been a congregant for 16 years. He also worships and attends events at the Masjid-e-Ali mosque approximately ten times per year, the Mehfile Shahe Khorasan mosque approximately four times per year, and the Imam-e-Zamana Foundation of North America mosque approximately twice per year. Each of these mosques is located in New Jersey and was identified in the NYPD reports as a subject of the NYPD surveillance Program. 13. Hassan has been unfairly targeted and stigmatized by the NYPD’s surveillance of his mosques as part of a program targeting Muslim organizations. He has decreased his mosque
5

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attendance significantly since learning that the mosques he attends have been under surveillance by the NYPD because he has a reasonable and well-founded fear that that his security clearance would be jeopardized by being closely affiliated with mosques under surveillance by law enforcement. Any blemish in his background check jeopardizes his security clearance and thus his career. Hassan is also concerned that his fellow soldiers, including his superiors, will have diminished trust in him and treat him differently – thereby harming his career prospects – if they learn he is a regular congregant at mosques under NYPD surveillance. He believes, reasonably, that if he decreases his attendance, he is less likely to be seen and/or recorded at the mosques.
14. The Council of Imams in New Jersey (“Council” or “CINJ”) is a non-profit corporation organized under the law of New Jersey and based in the Newark area. Its address is 62-70 Howard Street, Irvington, NJ 07111. Among other things, the Council is formed to conduct what is called Mutual Consultation (“Shuraa Baynahum”) for the purpose of establishing a whole and balanced society and facilitating the current and future circumstances that shape the continuous improvement of the Muslim Community. The Council is a membership organization comprising a dozen New Jersey mosques, at least two of which, Masjid al-Haqq and Masjid Ali K. Muslim, have been surveilled as part of the NYPD’s Program in New Jersey. Photographs and descriptions of both of these mosques are included in the Department’s Newark report.
15. Masjid al-Haqq and Masjid Ali K. Muslim have been a part of the Newark community for thirty and over forty years, respectively. Leaders and congregants in both mosques have been unfairly targeted and stigmatized by the NYPD’s surveillance of their
6

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mosques as part of a program targeting Muslim organizations. Both mosques have also seen a decline in attendance and contributions as a result of the Department’s surveillance. Losses in attendance and financial support that followed the disclosure of the Program targeting Muslims have directly harmed both mosques’ ability to fulfill their religious missions.
16. Muslim Students Association of the U.S. & Canada, Inc. (“MSA National”) is a non-profit corporation organized under the law of Indiana, based at 6555 South 750 East, Plainfield, IN 46168. MSA National serves Muslim students during their college and university careers by facilitating their efforts to establish, maintain and develop local MSA chapters. It strives to facilitate networking, educating and empowering the students of today to be citizens of tomorrow’s community. To achieve its objectives, MSA National develops tools and resources to facilitate information sharing and to unite students across North America.
17. Two of MSA National’s members, the Muslim Student Associations for the Rutgers University campuses at Newark and New Brunswick, were subject to surveillance in New Jersey through the NYPD Program. These MSAs were singled out for surveillance by the NYPD simply because their membership is made up of Muslim students. Student organizations affiliated with other religious denominations were not subject to similar surveillance. Such biased police spying invites additional discrimination and prejudice against all current and former MSA students and diminishes the MSAs’ ability to fulfill their spiritual and practical missions. As affinity student groups, MSAs subject to surveillance of their activities and discussions are diminished in their ability to establish viable student organizations that students
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will feel secure joining and participating in. Their ability to embark upon integral partnerships with campus administrators and other organizations and fulfill the spiritual needs of their members in a confidential manner is also impaired.
18. All Body Shop Inside & Outside is a New Jersey corporation that owns and operates a retail store and cafe in downtown Newark (20 Branford Place, Newark, NJ 07102). The store was founded in 1998. Its owners, Gary Abdul Karim Abdullah and Hamidah Z. Abdullah, are Muslims who have lived and worked in the Newark community for their entire lives. All Body Shop Inside & Outside was identified in an NYPD report as “Hamidah’s Body Shop” and was subject to surveillance as part of the NYPD Program.
19. The owners of All Body Shop Inside & Outside have been unfairly targeted and stigmatized by the NYPD’s surveillance of their business as part of a program targeting Muslim organizations. The NYPD’s Program has also harmed their business by scaring away customers. A photograph and description of their store is included in the NYPD’s Newark report, which has been widely publicized. Since people learned that All Body Shop Inside & Outside was under NYPD surveillance, the number of customers visiting the store has decreased and some customers have told the owners by telephone that they did not feel comfortable visiting the location because of the threat of NYPD surveillance.
20. Unity Beef Sausage Company (“Unity”) is a New Jersey corporation that owns and operates Unity Brand Halal Products, Inc., a halal meat store in downtown Newark (94 Orange Street, Newark, New Jersey 07102). It has a store for retail and wholesale and a building
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for manufacturing. Founded in 1968, Unity is owned by Akbar Salaam, who is Muslim. Unity was surveilled as part of the NYPD Program in New Jersey, and a photograph and description of the Unity store appears in the NYPD’s Newark report, which has been widely publicized.
21. Unity’s owner, his employees, and his customers have been unfairly targeted and stigmatized by the surveillance of Unity as part of a program targeting Muslim organizations. The NYPD surveillance has also hurt business at the Unity halal meat store. Many regular customers have not been coming to the store since the NYPD’s Newark report was made public. For example, the store typically experiences a rush of business after Friday prayer services, when many Newark area Muslims do food shopping and run errands. That rush slowed considerably immediately after the Newark report became public. Some customers have called to ask the owner about the NYPD’s surveillance and told him they are no longer comfortable visiting the store. The store’s owner now fears conducting his legitimate business; he is concerned that anyone who comes in or looks at him from across the street might be an NYPD spy.
22. Muslim Foundation Inc. (“MFI”) is a New Jersey non-profit corporation that owns and operates the Masjid-e-Ali mosque, located at 47 Cedar Grove Lane, Somerset, NJ, 08873. MFI’s congregation comprises approximately 250 families. The Masjid-e-Ali mosque was surveilled as part of the NYPD’s Program in New Jersey, and was identified in an NYPD report as a subject of surveillance.
23. Leaders and congregants in MFI have been unfairly targeted and stigmatized by the NYPD’s surveillance of their mosque as part of a program targeting Shi’a Muslim
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organizations. The NYPD’s surveillance of the mosque, and its inclusion in an NYPD report casts an unwarranted cloud of suspicion upon the mosque and its membership. MFI has also changed its religious services and programming as a direct result of the NYPD surveillance. Prior to learning that it had been surveilled by the NYPD, the mosque hosted a variety of visiting Islamic scholars and religious authorities to provide guidance to the congregation on how to conduct their daily lives in accordance with religious laws. These discussions are integral to MFI’s religious mission, which includes promoting the lives of its congregants in accordance with divine laws, fellowship, and religious discourse. After learning that it had been targeted for surveillance, MFI decided not to invite otherwise amenable religious authorities who might nevertheless be perceived to be controversial because of their previous spiritual or religious training in Iran, views on or history of vocalizing religious edicts aligned with certain prominent centers of learning in Shi’a Islam, or their opinions on the proper role of the Islamic faith and scholarship in the daily lives of adherent Muslims; MFI’s leaders reasonably feared that the views of such religious authorities and guides would be attributed to the mosque’s membership. As a result, MFI’s ability to fulfill its religious mission has been harmed.
24. Moiz Mohammed is a New Jersey resident (22 Woodbridge Street, New Brunswick, NJ 08901) currently enrolled as a full-time student at Rutgers New Brunswick, where he is pursuing a degree in Molecular Biology and Biochemistry. He is currently a junior and has been active in the Muslim Students Association (MSA) since his freshman year. The
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Rutgers New Brunswick MSA was surveilled as part of the NYPD’s Program in New Jersey, and was identified in an NYPD report as a subject of surveillance.
25. Mohammed has been unfairly targeted, and stigmatized by the NYPD’s surveillance of his MSA as part of a program targeting Muslim organizations. The NYPD’s surveillance of his MSA unfairly targets him and other Muslim students. Members of other religious groups are not subjected to such surveillance and monitoring. The stigma now attached to being a Muslim member of the MSA has caused Mohammed to avoid discussing his faith or his MSA participation in public and to avoid praying in places where non-Muslims might see him doing so. Thus, Mohammed bears the burden of being discriminated against by the government, solely on account of his religion, which sends a signal that he is a less worthy member of the political community.
26. Jane Doe is a New Jersey resident currently enrolled as a full-time student at Rutgers New Brunswick in her junior year and is active in the Muslim Students Association. She will be moving the Court for leave to proceed under pseudonym after counsel for Plaintiffs confers with counsel for Defendant.
27. Doe suffers the same stigma as Mohammed as a result of the NYPD’s surveillance of the activities of Muslim students on campus. She experiences this stigma in a variety of ways. For instance, she no longer discusses religious topics at MSA meetings, such as the differences between Sunni and Shi’a Islam, because of a reasonable fear that such discussions would be misunderstood and taken out of context by those suspicious of her religion.
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She also has a reasonable fear that her discussions with other students and other participation in MSA activities may be observed by NYPD and taken out of context, resulting in unwarranted scrutiny premised solely on her Muslim faith and participation in religious discourse.
28. Soofia Tahir is a New Jersey resident (56 Southside Avenue, Somerville, NJ 08876) who was a member of the Rutgers Newark MSA during the 2003-2004 school year. She then attended Rutgers University’s New Brunswick campus as an undergraduate from 2004 through 2008, and graduated with a bachelor’s degree. She was a member of the Rutgers New Brunswick MSA during those years and served as its Vice President during the 2006-2007 school year. Tahir went on to attend graduate school at the Rutgers New Brunswick campus from 2010 through 2012, and graduated with a master’s degree.
29. Like Mohammed and Doe, Tahir has been unfairly targeted, and stigmatized by the NYPD’s surveillance of the Rutgers MSAs in a way that is likely to endanger her future educational and employment opportunities. In particular, she focused her graduate studies on international social work, a field in which many employment opportunities are with governmental or non-governmental agencies that require background checks and/or security clearance. She reasonably fears that her membership and leadership in organizations that have been surveilled by the NYPD as part of a program it describes as focused on “threats” and an attempt to document the “likely whereabouts of terrorists” will adversely affect her future job prospects and any further educational pursuits.
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30. The revelation of the NYPD’s spying on Muslims in New Brunswick and at Rutgers also caused Tahir to change the way she prayed and limit her conversations with others on certain topics. She curtailed discussions of religious and political topics while on the Rutgers campus out of a reasonable fear that NYPD informants or undercover officers might be eavesdropping and misconstrue what she said. She avoided religious and political topics rather than be subject to law enforcement scrutiny. Tahir also went to pray in very remote areas of the buildings in which she studied and worked on campus in order to try to avoid NYPD surveillance because of the uniquely visible way in which Muslims pray. On occasion, she would also go to work early in the morning so she could leave earlier in the day and do her mid-afternoon prayer at home, thereby reducing the Department’s ability to surveil and scrutinize her worship.
31. Zaimah Abdur-Rahim resides at 35 Finlay Place, Newark, NJ 07106. She is currently a math teacher at Al Hidaayah Academy (“AHA”), a position she has held since 2010. A record of the NYPD’s surveillance of AHA appears in the Newark report, which includes a photograph and description of the school. Abdur-Rahim was also the principal of Al Muslimaat Academy (“AMA”), a school for girls grades five through twelve, from 2002 through 2010. Like AHA, a record of the NYPD’s surveillance of AMA appears in the Newark report, including a photograph, the address, and notations stating, among other things, that the school was located in a private house and that the ethnic composition of the school was African American.
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32. Abdur-Rahim has been unfairly targeted and stigmatized by the NYPD’s surveillance of AHA, where she is currently employed, and AMA, where she was last employed, as part of the Department’s program targeting Muslim organizations. She reasonably fears that her future employment prospects are diminished by working at two schools under surveillance by law enforcement. Moreover, the Newark report’s photograph of AMA is also Abdur-Rahim’s home, where she has lived since 1993 with her husband and, at various times, her children and grandchildren. The fact that a photograph of her home appears on the internet in connection with the NYPD’s surveillance program that the City of New York has since publicly exclaimed is necessary for public safety, has decreased the value of the home and diminished the prospects for sale of the home.
33. Abdur-Rahim is especially concerned with the Department’s spying on AMA, because she and the all-female population of students there did not wear head coverings while attending classes. One of Abdur-Rahim’s and her students’ most sacred religious tenets is modesty, their practice of which requires them to always keep their heads covered in the presence of men or boys. If NYPD officers entered the property surrounding the school and looked inside – for example to determine that it was attended by African Americans as reported – they would be violating this religious tenet.
34. Abdul-Hakim Abdullah is married to Abdur-Rahim and co-owns the 35 Finlay Place home with her. He also served on the Board of Directors of Al Muslimaat from 2002 through 2010. Abdullah has suffered the same harm as Abdur-Rahim in connection with a
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decrease in the value of his home caused by the NYPD’s surveillance and subsequent statements by Department officials.
Defendant 35. The City of New York is a municipal corporation duly incorporated and existing pursuant to the laws of the State of New York and having its principal offices at City Hall, New York, NY 10007. The City of New York has established and maintains the NYPD as a constituent department or agency. The NYPD acts as the City of New York’s agent in the area of law enforcement. The NYPD’s operations include the activities described herein.
STATEMENT OF FACTS The NYPD Program Intentionally Targets Muslims for Surveillance on the Basis of Religion
36. In January 2002, the NYPD created a secret spying program to analyze and surveil the Muslim community in New York City and nearby regions, including Muslim religious institutions, schools, businesses, associations, and congregations. The Department created the Program following the September 11, 2001, attacks based on the mistaken and unconstitutional premise that Muslim religious identity is a legitimate criterion for selection of law enforcement surveillance targets, or that it is a permissible proxy for criminality, and that Muslims can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large, simply because of their religion. This Program reflects a policy, custom, usage and/or practice of the NYPD to target the Muslim community for surveillance solely on the basis of religion.
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37. As part of this Program, the NYPD specifically and purposefully targets mosques, Muslim-owned businesses, Muslim Student Associations, and Muslim schools for surveillance based only upon the religious beliefs of their owners or members. The NYPD Program intentionally targets only the Muslim faith and does not undertake similar surveillance with respect to any other religious group. Thus, the Program perpetuates odious and unfounded stereotypes about Muslims, including Plaintiffs, and stigmatizes them as members of a disfavored community that is inherently dangerous and inferior.
38. The Department has focused, in particular, upon New Jersey Muslims as part of its Program. The Department has conducted surveillance of at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two Muslim Student Associations in New Jersey, in addition to an untold number of individuals who own, operate, and visit those establishments. Furthermore, the Department has created over twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community. As part of the Program, it has also created a series of reports documenting in detail the information obtained from its surveillance of New Jersey Muslim communities.
39. The Program uses a variety of methods to spy on Muslims. It has, among other measures, taken video and photographs at mosques, Muslim-owned businesses, and schools. It has sent undercover officers to those locations to engage in pretextual conversations to elicit information from proprietors and patrons. And it has planted informants in mosques, and
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monitored websites, listserves, and chat rooms. The Department does not conduct similar surveillance of houses of worship, businesses, and schools associated with other religions. For example, on information and belief, no other religious group is uniformly and categorically viewed as a legitimate target for investigation merely because of the actions of an exceedingly small fraction of people of the same faith who have violated the law.
40. In addition to targeting Muslims by focusing on mosques, Muslim-owned businesses, and other Muslim-associated organizations as subjects of surveillance, the Program also intentionally targets Muslims by using ethnicity as a proxy for faith.
41. As part of the Program, the Department has designated twenty-eight countries and “American Black Muslim” as “ancestries of interest.” The twenty-eight countries are: Afghanistan, Albania, Algeria, Bahrain, Bangladesh, Chechnya, Egypt, Guyana, India, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya, Morocco, Pakistan, Palestine, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, U.A.E., Uzbekistan, Yemen, and Yugoslavia. Those twenty-eight countries constitute about 80% of the world’s Muslim population. All but five of the countries on the list are more than three-fourths Muslim. Of these five, all but two countries are majority Muslim and one of the remaining two countries is India, which alone is home to 11% of the world’s Muslims.
42. However, the Department does not surveil all people and establishments with “ancestries of interest,” but expressly chooses to exclude people and establishments with such “ancestries” if they are not Muslim. Thus, for example, the NYPD does not surveil Egyptians if
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they are Coptic Christians, Syrians if they are Jewish, or Albanians if they are Catholic or Orthodox Christian.
43. The NYPD’s report analyzing Newark observes: “There appears to be a sizable and growing non-immigrant, African-American Muslim population.” No analysis of nonMuslim African-Americans appears in the Newark report.
44. The NYPD’s surveillance is not limited to those Muslims with “ancestries of interest.” In its surveillance of Newark, the Department has observed that the largest immigrant communities in that city are from Portugal and Brazil, countries not found on its list of twentyeight “ancestries.” Nevertheless, the Department’s Newark report examines these communities for the presence of Muslims: “No Muslim component within these [Portuguese and Brazilian] communities was identified, with the exception of one identified location being owned and operated by a Brazilian Muslim of Palestinian descent.” No non-Muslim individuals or establishments from Newark’s Portuguese or Brazilian immigrant communities are identified in the NYPD’s Newark report. The Department’s investigation, surveillance, and analysis are concerned only with Muslims. Religious affiliation is employed as the sole predicate for investigation pursuant to the Program.
NYPD’s Surveillance Activities Against Muslims 45. The NYPD Program utilizes numerous forms of surveillance in its monitoring of Muslim communities, including its surveillance of Muslim communities in New Jersey. The NYPD Program does not undertake similar surveillance of non-Muslim communities. Despite
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its initial secrecy, public knowledge of the NYPD program to single out Muslims for surveillance has become widespread in New Jersey and elsewhere.
46. As part of the Program, NYPD officers snap pictures, take video, and collect license plate numbers of congregants as they arrive at mosques to pray, making records of those in attendance. They also mount surveillance cameras on light poles, aimed at mosques, for the purpose of round-the-clock surveillance. Officers can control the cameras with their computers and use the footage to help identify worshippers. The NYPD has not conducted similar surveillance at non-Muslim houses of worship.
47. The Department also utilizes informants and undercover officers, who identify and report upon, among other things, businesses owned or frequented by Muslims; which stores sell halal meat; the subject of conversations overheard at mosques; and where religious schools are located. For example:
a. The NYPD uses undercover officers called “rakers” to monitor daily life in neighborhoods it believes to be heavily Muslim. Rakers surveil locations such as bookstores, bars, cafes, and nightclubs. They do so not based upon evidence of wrongdoing, but because the Department believes it should surveil and investigate American Muslims comprehensively in a way that it does not other religious communities. b. The NYPD also has informants called “mosque crawlers” who monitor sermons and conversations in mosques and report back to the NYPD. Mosque crawlers are
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used at mosques as part of a broader plan for blanket surveillance of Muslim communities. The Department has strived to have an informant inside every mosque within a 250-mile radius of New York City and has, in fact, prepared an analytical report on every mosque within 100 miles, including Plaintiff MFI and at least two of the members of CINJ. Upon information and belief, the NYPD's mosque crawlers have monitored thousands of prayer services in mosques, collecting detailed information about worshippers simply because they are Muslim, without evidence they engaged in any wrongdoing. c. Rakers and mosque crawlers have monitored discussions in mosques about the controversy surrounding the publication of a Danish artist’s cartoons of the Prophet Muhammad, the results of which were included in a February 2006 report. That report, for example, documents twenty-three conversations at twenty mosques. None of the information collected showed any indication of criminal activity. The NYPD prepared a similar report after an accidental plane crash in Manhattan in October 2006. Upon information and belief, the Department prepares many such reports targeting Muslims, none of which even allegedly involve any wrongdoing. d. Using mosque crawlers, rakers, and other officers and agents, the NYPD has documented painstaking details of American Muslim life, including in New Jersey, and plaintiff institutions and businesses. For example, Department surveillance reports note the fact that flyers are posted in shops advertising for Quran tutoring; a
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picture of a mosque hangs in a grocery store; a restaurant serves “religious Muslims;” customers visit a Dunkin’ Donuts after Friday prayer; a restaurant is located near a particular mosque; employees or customers of establishments are observed wearing “traditional clothing;” Muslim prayer mats are hanging on the wall at an Indian restaurant; and a store posts a sign that it will be closed on Friday in observance of Friday prayer. 48. The NYPD Program has not utilized informants and undercover agents to undertake such focused or intensive surveillance of non-Muslim communities. 49. The NYPD also closely monitors the activities of Muslim Student Associations at colleges and universities in New York, New Jersey, Connecticut, and Pennsylvania. It places informants or undercover officers in all or virtually all MSAs, without any indication whatsoever of criminal activity or any connection whatsoever to wrongdoing. 50. NYPD officers monitor the web sites of Muslim student organizations, troll student chat rooms, and talk to students online. Undercover NYPD officers sometimes pose as students to attend MSA events. One officer, for example, went on a rafting trip with an MSA and monitored and recorded how often the student participants on the trip prayed, and that they discussed religious topics. Knowing that undercover NYPD officers are recording the topics of Muslims’ conversations and the frequency with which they pray reasonably causes Plaintiffs and other Muslims in the jurisdictions surveilled by the Department to chill their religious practices.
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51. On a weekly basis, the Department prepares an MSA Report on schools, including reports on Rutgers New Brunswick and Rutgers Newark. Its reports include the names of professors, scholars, and students without any evidence that they engaged in wrongdoing.
52. The Department does not conduct similar blanket surveillance of the activities of Christian, Jewish, or any other religious student group.
53. To facilitate future surveillance of entire American Muslim communities, the NYPD has created maps indicating the locations of mosques, restaurants, retail establishments, and schools owned by or serving Muslims, as well as ethnic populations from heavily Muslim countries. The Department has over twenty such maps of Newark, New Jersey.
54. The NYPD has not compiled similar maps of non-Muslim communities. 55. The NYPD also inspects records of name changes and compiles databases of new Muslim converts who take Arabic names, as well as Muslims who take names that are perceived to be “Western.” The Department does not compile similar information for other kinds of name changes. 56. The NYPD’s surveillance of the Muslim community in New Jersey, including its surveillance of Plaintiffs, is extensive and sustained. For example, undercover NYPD officers participating in the Program operated a base of operations in an off-campus apartment near Rutgers New Brunswick. On information and belief, the NYPD Program in New Jersey, including its surveillance of Plaintiffs, is ongoing.
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The NYPD Program Harms the Plaintiffs and the Muslim Community as a Whole 57. The NYPD’s blanket surveillance of Muslims casts guilt on all people of that faith by suggesting that Muslims pose a special threat to public safety. As targets of the NYPD’s discriminatory Program that endorses and perpetuates such false stereotypes, the Plaintiffs and other New Jersey Muslims have been gravely stigmatized and will continue to suffer significant harm as a group disfavored by the government. 58. The Department’s Newark report analyzes more than forty “Locations of Concern,” which include mosques, restaurants, retail establishments, and a school for grades one through four recognized by the New Jersey Department of Education. The report defines “Location of Concern” as, among other things, a “location that individuals may find coconspirators for illegal actions” and a “location that has demonstrated a significant pattern of illegal activities.” The report does not identify any “illegal activity” in respect to any of these locations. Rather, these establishments, which include Plaintiffs Unity halal meat store, All Body Shop Inside & Outside, and two of the mosques represented by the Council of Imams in New Jersey, were surveilled and are documented in the report only because they are Muslimowned or -affiliated. The sole basis for the Department’s stated belief that illegal activity occurred or is likely to occur is the religious identify of those surveilled. Nonetheless, the Department’s use of such a description for mosques, businesses, and schools casts a dark shadow of suspicion on congregations, customers, lenders, children and parents – indeed, the community
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as a whole – gravely stigmatizing and otherwise having a significant deleterious impact upon them.
59. The NYPD causes similar damage in its report on the threat to New York City of a potential U.S. - Iran conflict. Among the “key findings” and “recommended actions,” included in the report are to “[e]xpand and focus intelligence collections at Shi'a mosques.” While the report observes that “the majority of Iranian nationals residing in the US are either Zoroastrian, Jewish, or Christian,” the report only targets Muslim institutions, without any justification. Moreover, the report’s focus on Shi’a Muslim mosques sweeps up vast numbers of individuals with no connection to Iran or to any threat arising from a potential conflict between the United States and Iran. Indeed, the report observes that the Shi’a Muslim community includes many individuals of Iraqi, Lebanese and Pakistani descent. Yet the report targets the Shi’a Muslim community as an undifferentiated whole. The report therefore unmistakably targets Muslim institutions simply because they are Muslim and unconstitutionally deploys religious affiliation as a criterion for selection of law enforcement surveillance targets, or as a proxy for criminality.
60. The U.S – Iran report describes organizations believed to pose serious threats to New York City, such as Hezbollah and Hamas, supporters of those organizations and their locations, followed by a list of “Other Shi'a Locations in the vicinity of NYC.” This list of twelve Shi’a Muslim locations includes six in New Jersey, including Plaintiff MFI and its Masjid-e-Ali mosque, as well as three additional mosques attended by Plaintiff Hassan (Astaanae-Zehra, Mehfile Shahe Khorasan, and Imam-e-Zamana Foundation of North America). The
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clear implication of the report is that Shi’a mosques pose a threat to public safety unlike other establishments and places of worship. But under the NYPD’s Program the only reason that these mosques, including Plaintiff MFI and those attended by Hassan, were included in the report is that they are affiliated with Shi’a Islam, not because of any wrongdoing, any affiliation with designated organizations such as Hamas or Hezbollah, or any other legitimate reason.
61. The harm the NYPD inflicts on Plaintiffs and Muslim communities results not just from the surveillance, and from the stigma of being targets of discrimination, but also from the public statements that defendant New York City officials make in support of the surveillance. These statements have acknowledged the existence of the NYPD program, describing it as focused on “threats” and as an attempt to document the “likely whereabouts of terrorists.” By singling out American Muslims for unequal treatment and as “threats,” government officials have sent a signal that they are less worthy participants in the political community.
62. Because the NYPD Program did not limit itself to threats or terrorists but rather targeted the Muslim community as a whole, such statements suggest that all Muslim establishments are dangerous or likely to harbor terrorists, thereby engendering suspicion and distrust of Muslim individuals and Muslim establishments, including Plaintiffs, affecting people’s livelihoods, damaging the fabric of Muslim communities and the broader society within which Muslims live, and inviting prejudice and discrimination against Plaintiffs and other Muslim individuals.
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63. On information and belief, the NYPD Program in New Jersey, including broad surveillance of mosques, Muslim businesses and MSAs and, in particular surveillance of Plaintiffs, is ongoing.
64. As part of the Program, NYPD officers frequently go back to surveillance locations to make sure they have not changed, and updating their information is part of their duties and responsibilities. Indeed, New York City officials have made clear that they believe the NYPD's targeting of Muslims for surveillance on the basis of their religion is appropriate and will continue. Discussing the surveillance, Mayor Bloomberg has stated publicly, “We’re doing the right thing. We will continue to do the right thing.” Commissioner Kelly has said, “We’re going to continue to do what we have to do to protect the city.” Under our Constitution, however, what the NYPD may not do is continue to target American Muslims for investigation and pervasive surveillance simply because they are Muslim.
65. The Mayor and Police Commissioner have justified this sweeping, discriminatory policy by repeatedly claiming that it is necessary to protect the public’s safety. These public officials’ statements conflate religion with a security risk and falsely suggest that Muslims alone present a unique law enforcement threat. Such official proclamations, made exclusively in reference to the Muslim community, stigmatize Plaintiffs and the Muslim community in New Jersey, and invite additional prejudice and discrimination against them.
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CLAIMS FOR RELIEF FIRST CAUSE OF ACTION VIOLATIONS OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION 66. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 67. The Defendant’s Program impermissibly and intentionally discriminates against Plaintiffs because of their religion. As a direct and proximate result of the acts of the Defendant and its agents, the Plaintiffs have therefore been deprived of their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. SECOND CAUSE OF ACTION VIOLATIONS OF THE FIRST AMENDMENT TO THE U.S. CONSTITUTION 68. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 69. The Defendant’s Program is neither neutral with respect to religion, nor of general applicability. The Program instead singles out Plaintiffs’ religion for disfavor and intentionally denigrates Islam. As a direct and proximate result of the acts of the Defendant and its agents, the Plaintiffs have therefore been deprived of their rights under the Free Exercise Clause and the Establishment Clause of the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
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THIRD CAUSE OF ACTION EXPUNGEMENT ACTION AT COMMON LAW 70. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 71. Government entities may not maintain records where the harm to the Plaintiffs caused by the existence of records outweighs the utility of their continued maintenance, especially where the information contained in the records was compiled by unlawful methods. 72. Defendants’ have compiled records identifying mosques represented by Plaintiffs CINJ and MFI, the Rutgers Newark and Rutgers New Brunswick MSA chapters, represented by Plaintiff MSA National, Plaintiff Unity Beef Sausage Company, and Plaintiff All Body Shop Inside & Outside as targets of surveillance and investigation. Upon information and belief, the NYPD also maintains records identifying Plaintiffs Hassan, Mohammed, Doe, Tahir, AbdurRahim, and Abdullah as targets of surveillance or investigation. These records are likely to command attention from law enforcement officials, other agencies of government, and the public at large, to the detriment of the Plaintiffs. 73. Maintenance of these records, which are the fruits of the Defendant’s unconstitutional actions and which falsely identify the Plaintiffs as linked to the threat of terrorism, creates harms that significantly outweigh their utility, if any.
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PRAYER FOR RELIEF WHEREFORE the Plaintiffs respectfully request that the Court:
(a) Declare that the Defendant’s actions violate the Plaintiffs’ rights under the First and Fourteenth Amendments of the United States Constitution;
(b) Enjoin further violations of the Plaintiffs’ constitutional rights, including but not limited to an injunction that requires the Defendant to refrain from targeting Plaintiffs for surveillance on the basis of religion;
(c) Order the expungement of all records of Plaintiffs made pursuant to past unlawful spying;
(d) Award Compensatory Damages to those Plaintiffs who have suffered economic harm; (e) Award Nominal Damages for the harms suffered by Plaintiffs who are not awarded compensatory damages;
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(f) Award attorney’s fees and costs associated with this action; and (g) Award any further relief as is just and proper and any other relief as allowed by law.
Respectfully submitted, Glenn M. Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104 (415) 692-1484 (tel) (415) 765-1774 (fax) glenn@muslimadvocates.org /s/ Ravinder S. Bhalla Ravinder S. Bhalla LAW OFFICES OF BHALLA & CHO, LLC 333 Washington Street, Suite 203 Jersey City, NJ 07302 (201) 610-9010 (tel) (201) 610-9030 (fax) rbhalla@rsblawfirm.com Attorneys for Plaintiffs Dated: October 3, 2012
30

 
 Case 2:12-cv-03401-WJM-MF Document 15 Filed 12/06/12 Page 1 of 2 PageID: 101

UNITED STATES DISTRICT COURT
DISTRICT OF NE\ry JERSEY x
SYED FARIIAJ 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.' MOIZMOHAMMED; JANE DOE; SOOFIA TAHIR; ZLIN'4.A'H ABDUR-RAHIM; and ABDUL-HAKIM ABDULLAH

t2-cv-3401 -sDw-MCA
NOTICE OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
\ilITH PREJUDICE
MOTION DATE: JANUARY 7, 2013

against-
THE CITY OF NEW YORK,

Plaintiffs,
Defendant. x

ORAL ARGUMENT REQUESTED

To: Glenn M. Katon Farhana Khera MUSLIM ADVOCATES 3l5Montgomery Street, 8th Floor San Francisco, CA 94104

Ravinder S. Bhalla
LAW OFFICES OF BHALLA &, CHO,
LLC
333Washington Street, Suite 203
Jersey City, NJ 07302

PLEASE TAKE NOTICE that, on January 7th,2013, or as soon thereafter as counsel may be heard, Defendant City of New York will move this Court before the Honorable Susan D, Vy'igenton, United States District Judge, at the United States Courthouse for the District of New Jersey, located at 50 Walnut St. Newark, New Jersey 07101, for an Order, pursuant to Rules 12(bxl) and 12(b)(6) of the Federal Rules of Civil Procedure, dismissing the complaint in its
entirety with prejudice, together with such other relief as this Court deems just and proper'
In support of its Motion, Defendant City of New York will rely upon the accompanying Memorandum of Law, dated December 6, 2012; the Declaration of Peter G' Farrell, dated December 6,2012,with attached exhibits; and the Proposed Order annexed hereto.

Case 2:12-cv-03401-WJM-MF Document 15 Filed 12/06/12 Page 2 of 2 PageID: 102 Defendant requests oral argument'

Dated: New York, New York December 6,2012

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorneyþr Defendant City of New York 100 Church Street, Room 3-147 New York, New York 10007
212-442-4687

By:

s/ Peter G. Fanell

Peter G. Fanell

Senior Counsel

-2-

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 1 of 23 PageID: 103

?l::y_:l:ï'_Y*:I UNITED STATES DISTRICT COURT

............x

SYED FARHAJ HASSAN; THE COI-INCIL 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.; MOTZ MOHAMMED; JANE DOE; SOOFIA TAHIR; ZAIMAH ABDUR-RAHIM; ANd ABDUL-HAKIM ABDULLAH
Plaintiffs,

12 Civ 3401 (SDW)(MCA)
ORAL ARGUMENT REOUESTED

-against-

THE CITY OF NEW YORK,

Defendant

DEFENDANT CITY OF NEW YORK'S MEMORANDUM OF' LAW IN SUPPORT OF ITS' MOTION TO DISMISS THE COMPLAINT PURSUANT TO FEDERAL RULE OF
crv[ PROCEDURE l2(bx6) and 12(bXl)

Motion Date: January 7r2013

MICHAEL A. CARDOZO
Corporation Counsel of the City of New York
Attorneyþr Defendant City of New York I00 Church Street
New York, New York 10007
Of Counsel: Peter G. Faruell Tel: 2 I 2-442-4687

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 2 of 23 PageID: 104

TABLE OF CONTENTS
TABLE OF AUTHORITIES
PRELIMINARY STATEMENT
STATEMENT OF FACTS ........
ARGUMENT
POINT I
THE SURVEILLANCE COMPLAINED OF IS
CONSTITUTIONAL
POINT II
THE COMPLAINT FAILS TO STATE A CLAIM
AGAINST THE CITY OF NEW YORK
POINT III
PLAINTIFFS LACK ARTICLE III STANDING
BECAUSE THEIR ALLEGATIONS OF INJURY ARE NOT CONCRETE AND PARTICULARIZED AND INSTEAD REST ON SPECULATION AND
CONJECTURE......
A. StandingRequirements B. Plaintiffs' Alleged Future Injuries Are Not
Concrete, Particularized, or Imminent
C. Plaintiffs Alleged Injuries Are The Result Of A
Third Party,Not the City of New York
POINT IV
PLAINTIFFS CLAIM FOR EXPI.INGEMENT OF
RECORDS SHOULD BE DISMISSED....,...
CONCLUSION

Page ll
1
2
,4
5
,9 ,.9 10 17
l8
19

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 3 of 23 PageID: 105

TABLE OF AUTHORITIES
Cases
ACLU v, NSA, 493 F .3d 644 (6th Cir. 2007)
Argueta v. United States Immigration and Customs Enforcement,
643 F.3d60 (3d Cir. 20tl) ..,.,
Ashcroft v. Iqbal, s56 U.S. 662 (200e)
Bqker v. Caru, 369 U,S. t86 (1962)
Bell Atl. Corp. v. Twombly,
ss0 u.s. s44 (2007)......
Bistrian v. Levi, 696 F .3d 3sz (3d Cir. 2012)
Clarkv. Twp, of Falls, 890 F.2d 611 (3d Cir. 198e) ....
Constitution Party of P.A.,v. Cortes, 433 Fed. Appx. 89 (3'o Cir. Pa. 2011)
DaimlerChrysler Corp. v. Cuno, s47 U.S. 332 (2006)
Donohoe v. Duling, 465 F,2d 196 (4thCir. 1972)
Duquesne Light Co, v, United States EPA, 166 F.3d 609 (3d Cir, 1999)
Eaford v. MR. P. LAGANA,
2011 U.S. Dist, LEXIS 59822 (D.N.J. June 6, 20lI) '
Fifth Ave. Peøce Parade Comm. v. Gray, 480 F.2d 326 (2d Cir. 1973) .....,
Hill v, Borough of Kutztown,
455 F.3d 225 (3rd Cir. 2006)
Laird v. Tatum,
408 U.S. t (re72),.......
-ll-

Paqes
...5-6
1,5,6,7 l0
6 6 9
l6-17
l0
5
t7 l7
14 9
, 4, 5, 13, 14, 15, 76

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 4 of 23 PageID: 106

Cases
Lujanv. Defenders of Wildlife, s04 u.s. s5s (1992)..........
Nour v, New York City Police Dep't, 1995 U.S. Dist. Lexis 1096 (S.D.N.Y. 1995)..,
Philadelphia Yearly Meeting of Religious Soc'y of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975)
Phillips Petroleum Co. v. Shutts, 472U.5.797 (198s)
Raines v. Byrd, s21 U.S. 811 (1997)...
Sandy Hook l4/atermans Alliance, Inc. v. N.J. Sports & Exposition Auth., 2011 U.S. Dist. LEXIS 79488 (D.N.J, Iuly 20,2011)....,.'.
Simon v. Eastern Ky. Welfare Rights Organization, 426U.5.26 (1976)
Storino v. Borough of Point Pleqsant Beach, 322F.3d293 (3rd Cir. 2003)
Sturm v. Clark,
835 F.2d 1009 (3d Cit. 1987)
United Presbyterian Church v. Reagan, 738F,2d 1375 (D.C. Cir, 1984)
llarth v. Seldin, 422U.5,490 (t97s)
Ilerner v. County of Northampton, 350 Fed. Appx. 724 (3d Ctu. 2009),
Statutes Fed. R. Civ. P. 12(bX6) and 12(b)(1) ,..

Pages
9,12,77
.. 15 5, 14
.10 l0
18
I7 l3
9 15
l0
9

-ill -

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 5 of 23 PageID: 107
PRELIMINARY STATEMENT
Defendant respectfully submits this Memorandum of Law in support of its'
motion to dismiss the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure l2(b)(6)
and l2(b)(l) on the grounds that (i) the first amended complaint fails to pass the "plausibility"
rest set out by the Supreme Court in Ashcroft v. Iqbal,556 U.S. 662,677-680 (2009) and fails to
state a claim; and (ii) the first amended complaint fails to allege concrete and particulatized injuries to establish standing under Article III of the U.S. Constitution depriving the Court of
subj ect matter j urisdiction.
In their first amended complaint, plaintiffs allege that starting in early 2002, shortly after the terrorist attacks of September llth, the New York City Police Department
("NYPD") began a program of illegally targeting the Muslim community for surveillance based
solely upon their religion. Plaintiffs allege that this surveillance program reflects a policy,
custom or practice of the NYPD to target the Muslim community for surveillance solely on the
basis of religion. Plaintiffs allege that this policy resulted in impermissible discrimination
against them and they seek to hold the City of New York liable for alleged violations of their
rights under the l't and 14th amendments to the U.S, Constitution. Plaintiffs bring this action
despite a three month fact finding investigation by the New Jersey Attorney General which concluded that the NYPD's actions in New Jersey about which plaintiffs complain did not violate New Jersey civil or criminal law.
As demonstrated fully below, the Court should dismiss plaintiffs' complaint for several reasons. First, the NYPD's collection of information by itself is not unconstitutional
(Point I). Second, plaintiffs' amended complaint fails to satisfy the plausibility test because the
conduct about which they complain is more likely the result of a non-discriminatory intent by the
NYPD to deter and detect terrorism in the post 9/l I world, not an intent to discriminate against

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 6 of 23 PageID: 108
New Jersey Muslims based solely upon religion (Point II). Third, this Court lacks subject matter
jurisdiction because plaintiffs allegations of injury are based upon fears and speculation neither
of which satisfy the injury required for standing (Point III). In addition, all of plaintiffs alleged injuries arose only after the Associated Press released confidential NYPD documents and it is
that disclosure that has resulted in plaintiffs' alleged stigmatization. Fourth, plaintiffs' request for the expungement of records fails for the same reasons that the collection of information is not unconstitutional in the first instance (Point IV).
For all these reasons, plaintiffs' first amended complaint should be dismissed with
prejudice.
STATEMENT OF FACTS Plaintiffs filed a complaint on June 6,2072, with the United States District Court, District of New Jersey, naming the City of New York as the sole defendant. That complaint was never served on defendant City of New York. Four months later, on October 3, 2L7z,plaintiffs filed a First Amended Complaint, which was served on the City of New York on October 4, 2012. A copy of the First Amended Complaint ("4m, Compl") is attached as Exhibit A to the Declaration of Peter G. Farrell, dated December 6,2012 ("Farrell Dec.") and submitted herewith. In the First Amended Complaint, the relevant allegations for purposes of this motion to dismiss are as follows.l Plaintiffs allege that the NYPD illegally and unconstitutionally targets New Jersey
Muslims for surveillance based solely upon their religion. (Am. Compl T l). Specifically,
plaintiffs allege that in early 2002, just after the terrorist attacks of September 1lth, the NYPD
began a secret spying program ("Program") to infiltrate and monitor Muslim life in and around
' The City accepts the allegations in the First Amended Complaint as true for purposes of this
motion.
a

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 7 of 23 PageID: 109
New York City including New Jersey. (Id. IT 2,3,36). Plaintiffs allege the surveillance in New Jersey was directed at mosques, restaurants, retail stores, schools, associations and on the individuals who own, operate or visit those establishments. (Id t]'l| 3, 36). Plaintiffs allege that the NYPD collects information through various means including photographs and videos,
undercover officers and informants, and that the NYPD has created certain reports containing the
information collected. (Am. Compl flfl 4, 5.) As part of the Program, for example, the NYPD
created over twenty precinct-level maps of the City of Newark noting locations of mosques and
businesses. (Id. TlJ3S, 53.) Plaintiffs also allege that the NYPD prepared various reports based upon the information collected such as a repof in February 2006 on discussions in mosques about the controversy suffounding the publication of a Danish artist's cartoons of the Prophet Muhammad and another report in October 2006 after a plane crash in Manhattan. (ld.T a7G'Ð.
The Amended Complaint further alleges that the NYPD designated twenty-eight countries as "ancestries of interest," two of which are not majority Muslim. (ld, T41). Plaintiffs allege that the NYPD only chooses to surveil establishments with "ancestries of interest" if they
are Muslim and does not surveil, for example, Egyptians if they are Coptic Christians, Syrians if
they are Jewish, or Albanians if they are Catholic or Orthodox Christian. (Id. I42). Plaintiffs alleged injuries "followed the disclosure" of various documents such as
the "Newark" report which "has been widely publicized" . (See e.g.Id lTI 5, 15,20, 27,31, 45),
Notably, the plaintiffs do not allege that the NYPD disclosed or publicized the documents or the "Program", Plaintiffs fail to mention in their First Amended Complaint that the disclosure of the
documents about which they complain was the sole result of the Associated Press covertly obtaining those confidential NYPD documents and publishing them along with a series of
articles based upon their own interpretation of the documents . (See Fanell Dec. fl 3).
-3-

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 8 of 23 PageID: 110
The disclosure of the documents has allegedly stigmatized plaintifß, caused various "fears," and for three plaintifß, resulted in an alleged loss of customers, (Am. Compl' llfl l1-34). Riddled throughout the Amended Complaint is the conclusory assertion that the "Program reflects" an unconstitutional and discriminatory policy by the City of New York to target the Muslim community for surveillance solely on the basis of religion, Ad. e.g. ln 36, 57 ,
67).
After the release by the Associated Press of the confidential NYPD documents, the New Jersey Attorney General was requested to conduct an investigation into the NYPD's activities, reported on by the Associated Press, that form the basis of plaintiffs' complaint. On lrlay 24 2012, after athree month investigation, the New Jersey Attorney General concluded that "the fact finding review, which is ongoing, has revealed no evidence to date that the NYPD's activities in the state violated New Jersey civil or criminal la\ils." See Exhibit B to Fanell Decl., a copy of a press release from the Office of the Attorney General dated }i4ay 24, 2012 titled "Office of the Attorney General Takes Steps to Address Out-of-State Law Enforcement Activity in New Jersey Following Fact-Finding Review,"2
ARGUMENT
POINT I
THE SURVEILLANCE COMPLAINED OF IS CONSTITUTIONAL
Plaintiffs do not allege that the "surveillance" is per se unconstitutional. Indeed, the Constitution does not prohibit police observation at public events nor the collection of information at those events, in other words, intelligence-gathering, Laird v. Tatum,408 U.S, I
(1972). It is of no import whether the police observation is through personal observation or
'This document can also be found at http://www.nj.gov/oaglnewsreleasesl2lpr20l20524b.html
-4-

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 9 of 23 PageID: 111
photography. See Laird, 406 U.S. at 12-14 (denying injunction to stop, among other things, surveillance by Army intelligence officers at public meeting); Philadelphia Yearly Meeting of Religious Soc 'y of Friends v, Tate, 519 F ,2d 1 3 3 5, I 337 (3d Cir. 197 5) (allegations of "police photographing and data gathering at public meetings" failed to state a claim). Nor does the Constitution prohibit the retention of the information obtained at public events. Philadelphia
Yearly Meeting of Religious Soc'y of Friends v. Tate, 519 F .2d at 1337 -1338 (affirming dismissal of complaint where allegations included that files were kept indefinitely); Donohoe v. Duling, 465 F.2d 196, 202 14th Cir. lg72) (denying injunction where record showed police department maintained photographs in its files).
Moreover, the Attorney General of New Jersey has stated that after a three-month
fact-hnding review, no evidence had been found that the NYPD's activities in New Jersey violated any New Jersey civil or criminal laws, See Exhibit B to Fanell Decl,
Accordingly, the NYPD's activities about which plaintiffs' complain are not by themselves unconstitutional or illegal. We next turn to the allegations that the NYPD's actions were taken for a "discriminatory" pu{pose.
POINT II THE COMPLAINT FAILS TO STATE A
CLAIM AGAINST THE CITY OF NEW YORK
In order to survive a motion to dismiss, a complaint must contain more than mere labels and conclusions and must state sufficient facts, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroftv, Iqbal,556 U.S. 662,678 (2009) (citing Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007)). See also Bistrian v. Levi, 696 F ,3d 352 at 365,372 (3d
Cir, 2012) (affirming dismissal of allegations that offrcials failed to intervene for lack of
plausibility); Argueta v. United Stqtes Immigration and Customs Enforcement, 643 F.3d 60,72-
5

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 10 of 23 PageID: 112
73 (3d Cir.2011) (holding that plaintiffs failed to allege a plausible Bivens claim against four
officials).
Determining whether a complaint states a plausible claim for relief will "be a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Iqbal,556 U.S. at 679 (citations omitted). A plaintiff is not entitled to relief "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id.
Iqbal arose out of the federal government's response to the terrorist attacks on September I 1, 2001. The plaintiff alleged in his complaint that the FBI's arrest and detention of thousands of Muslim men was based solely on the detainees' race, religion, or national origin. Id. at 680-681. The Court found that while plaintiffls factual allegations were consistent with
his conclusory claim that the FBI's actions were based solely on detainees' race, religion or
national origin, because there was a more likely explanation, the Supreme Court held plaintiffs allegations did not plausibly establish discriminatory purpose. Id. In other words, Iqbal "ha[d]
not 'nudged [his] claims' of invidious discrimination' across the line from conceivable to plausible." Id. at680.
The Supreme Court relied upon the following facts in reaching its conclusion that there was a more likely pu{pose for the FBI's actions than discrimination, The Court stated that:
"[t]he September 1l attacks were perpetrated by 19 Arab Muslim hijackers who counted
themselves members in good standing of all 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
-6-

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 11 of 23 PageID: 113
produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims." Id. at 682.
The Court here should similarly dismiss the plaintiffs' amended complaint
because just as in Iqbal, while plaintiffs' factual allegations may be viewed by some as
consistent with their conclusory claim that the NYPD's purpose was driven solely based upon their religion, the more likely explanation is that the NYPD's purpose was part of its overall efforts to deter or detect another terrorist attack rather than target Muslims based upon their religion. A review of plaintiffs' own allegations supports that conclusion.
For example, the plaintiffs allege that the Program was initiated soon after the September llth terrorist attack. Thus, the initiation of the Program was more likely in response to the terrorist threat than, as plaintiffs allege, driven based on a desire to discriminate based upon religion. Plaintiffs also allege that the Program was directed at not just mosques but also Muslim restaurants, retail stores, schools, and associations and on the individuals who own, operate or visit those establishments and that the NYPD created over twenty precinct-level maps of the City of Newark. These allegations are more likely consistent with the NYPD's efforts to
understand post 9-ll where an Islamist rcdicalized to violence mighttry and conceal himself to f,rt in with his surroundings or attempt to recruit others to assist him. A comprehensive
understanding of the makeup of the community would help the NYPD figure out where to look
in the event it received information that an Islamist terrorist may be secreting himself in New Jersey. Likewise, the factual allegation that the NYPD has identified twenty-eight "ancestries of
concern" and that they have identified where those ancestries congregate, which businesses they visit, and the like is more likely a tool to use to help in the response to an Islamist terrorist threat
-7 -

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 12 of 23 PageID: 114
than driven by the purpose to discriminate against Muslims based upon their religion as plaintiffs
allege,
Plaintiffs' allegations about a February 2006 NYPD report on discussions about
the controversy surrounding the publication of a Danish artist's cartoons of the Prophet Muhammad and another report in October 2006 after a plane crash in Manhattan further
demonstrate that the more likely explanation for the NYPD's actions is public safety rather than
discrimination based upon religion. The Danish cartoon on the Prophet Muhammad was a
widely publicized incident that caused strong reactions in the Muslim community. See fl5 and Exhibit C to the Farrell Decl. The allegation that the NYPD gauged the reactions in the related
communities is more likely consistent with its pursuit of ensuring public safety than a
discriminatory intent. The same is true regarding the allegations about the report on the 2006 plane crash in Manhattan. Because it involved a plane flown into a Manhattan building just as in 9/11, prudent policing for public safety would have the NYPD collecting information about the
2006 incident.
While the NYPD's actions are alleged to have disparate impact on Muslims, as the Supreme Court stated, it should come as no surprise that legitimate law enforcement actions
in the post 9/1 I world may have such consequences, which do not mean that the purpose of the
policy is to target Muslims because of their religion. Accordingly, plaintiffs' first amended
complaint should be dismissed with prejudice as it fails to pass the plausibility test under
Supreme Court precedent.3
3 To the extent that plaintiffs are alleging a "stigma-plus" claim, they have also failed to state such a claim. As a preliminary matter, most of the cases in this Circuit in which this claim is alleged involve a plaintiff who is or was a public employee upon whom certain actions had been taken by state actors. None of the plaintiffs in this case have alleged that they are in such a position. In this Circuit, in order to satisfy the "stigma" portion of the test it must be alleged that
-8-

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 13 of 23 PageID: 115
POINT III
PLAINTIFFS LACK ARTICLE III STANDING
BECAUSE THEIR ALLEGATIONS OF INJURY ARE NOT CONCRETE AND
PARTICULARIZED AND INSTEAD REST ON SPECULA ON AND
A. Standing Requirements
Article III of the Constitution limits the jurisdiction of the federal courts to the
resolution of "cases" and "controversies." Lujan v. Defenders of Wildlife, 504 U'S' 555, 559
(lgg2). An "essential and unchanging part" of that limitation is the doctrine of standing. Id. at
560. The plaintiff bears the burden of meeting the "irreducible constitutional minimum" of
Article III standing by establishing three elements:
First, the plaintiff must have suffered an injury in fact - an
invasion of a legally protected interest which is (a) concrete and
pafücularized 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 traceable 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.
the purportedly stigmatizing statements were (1) made publicly, and (2) were false. Hill v'
Borough of Kutztown,455 F.3d225,236 (3rd Cir. 2006). The plaintiffs fail to satisfy the first prong of this test as nowhere in their complaint do they allege that the NYPD has made any aspect of the surveillance program public (and it is a matter of public record that the Associated Press disclosed the documents referenced in the Amended Complaint), Plaintiffs also fail to satisfy the second prong of this test, as nowhere in their complaint do they allege either a) what
the purportedly stigmatizing statements about the plaintiffs were, or b) that they were false. See
Werner v. County of Northampton, 350 Fed. Appx. 724, 726 (3d Cir. 2009) ("Having failed to allege the falsity of the statement at issue, Werner failed to state a claim under the "stigma-plus"
test and his Second Amended Complaint was properl y dismissed on this basis.") Finally,
plaintiffs fail to allege a sufflrcient "plus" to their alleged stigma-plus claim. Both allegations of possible loss of future employment opportunities and outright hnancial harm have been held to fail the "plus" prong of the claim. See Clarkv. Twp. of Falls,890 F.2d 611,620 (3d Cit. 1989); Sturmv. Clark,835 F.2d 1009, 1013 (3d Cir. 1987)'
-9 -

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 14 of 23 PageID: 116
Id. at 560-561. A particularized injury is one that affects a plaintiff "in a personal and individual
way." Id. at 561 n.l; see also Rqines v. Byrd,521 U.S. 811, 819 (1997). Only a plaintiff so injured will have "'such a personal stake in the outcome of the controversy' to warrant his
invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin,422U.S.490,498-99 (1975) (quoting Baker v. Caru,369 U.S, 186, 204 (te62)).
A plaintiff must also satisfy certain "prudential" standing requirements based on the principle that the judiciary should "avoid deciding questions of broad social import where no individual rights would be vindicated." Phillips Petroleum Co. v. 9hutts,472U.5.797,804 (19S5); see also llarth, 422 U.S. at 500. Prudential standing requires, inter alia, fhat a party "assert his own legal interests rather than those of third parties," Shutts,472U.S. at 804, that a claim not be a "generalized grievance" shared in by all or a large class of citizens, Warth, 422 U.S. at 499, andthata plaintiff must "demonstrate standing for each claim he seeks to ptess." DaimlerChrysler Corp. v. Cuno,547 U.S. 332,352 (2006).
B. Plaintiffs' Atleged Future Injuries Are Not Concrete, Particularized, or Imminent In order to evaluate whether or not plaintiffs have Article III standing, it is
necessary to examine the types of injuries alleged by plaintiffs. Nowhere do plaintiffs allege a concrete injury caused by the NYPD's alleged surveillance. Rather, plaintiffs' alleged injuries are purely speculative and consist of their fears of what might result from being "surveilled" or
their own self-imposed limitations based on those fears. A look at the allegations of various plaintiff demonstrates this point:
o Plaintiff Hassan alleges that he has a "fear" that his security clearance "would be
jeopardized by being closely affiliated with mosques under surveillance" and so
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Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 15 of 23 PageID: 117
he has chosen to decrease his mosque attendance. He is also "concerned" that hrs
superiors "will" have diminished trust in him, thereby harming his career
"prospects." (Am. Compl.I 13.) a Plaintiff Unity Beef Sausage Company ("Unity") alleges that the store owner now
"fears conducting his legitimate business" and that "he is concerned that anyone who comes in or looks at him from across the street might be an NYPD spy." (Am. Compl. fl 21).
a Plaintiff Muslim Foundation Inc, ("MFI") claims that the surveillance "casts an unwarranted cloud of suspicion upon the mosque and its membership." MFI also
alleges that it has changed its religious services and programming as a direct
result of the NYPD surveillance so as not "to be perceived as controversial" and
that MFI's leaders "feared" that by inviting religious authorities who might
nevertheless be "perceived as controversial," their views "would be" attributed to
the mosque's membership (Am. Compl, nn.)
a Plaintiff Mohammed, a member of the Muslim Students Association at Rutgers University, now avoids discussing his faith or his MSA participation and praying in places where non-Muslims "might see him doing so." (Am. Compl. T 25.)
o Plaintiff Jane Doe alleges that she no longer discuss religious topics at MSA
meetings because she has a "feaf' that such discussions "would be"
misunderstood and taken out of context by those suspicious of her religion. (Am. Compl. n29).
a Plaintiff Soofia Tahir alleges the surveillance will "likely endanger her future
educational and employment opportunities" and "adversely affect her future job
- ll -

Case 2:12-cv-03401-WJM-MF Document 15-1 Filed 12/06/12 Page 16 of 23 PageID: 118
prospects and any other further educational pursuits," She has also changed the way she prays because of a"feaf'of being overheard' (Am. Compl, fl 29)
o Plaintiff Zaimah Abdur-Rahim "fears that her future employment prospects are
diminished by working at two schools under surveillance by law enforcement."
She also alleges that "the fact that a photograph of her home appears on the internet in connection with the NYPD's surveillance" has "decreased the value of
the home and diminished the prospects for sale of the home." (Am. Compl, T 32),
o Plaintiff Abdul-Hakim Abdullah, Zaimah Abdur-Rahim's husband, alleges that
there has been a decrease in the value of his home because of the surveillance, (Am. Compl,fl 3a). None of plaintiffs alleged "fears" meets the threshold requirement of concrete or pafücularized injuries suffrcient to establish standing. See Luian, 504 U.S. at 560, 562-568 (where plaintiff s fears that certain funded activities abroad increased the rate of extinction of endangered and threatened species, that allegation was held an insufficient injury for standing
purposes).
Plaintiffs injuries are also not actual or imminent. For example, not a single plaintiff alleges that his or her career or employment was in fact injured as a result of the NYPD's alleged surveillance. To the contrary, plaintiff Hassan alleges that he "has received numerous honors for his service in military intelligence." Am. Compl. 111. Thus, the alleged NYPD Program, alleged to have begun in 2002, has not had any adverse effects on plaintiff Hassan's caÍeer to date, Rather, plaintiffs merely speculate about what they fear may occur in the future. Similarly, the conjecture about a decrease in the value of the home of plaintifß
Abdul-Hakim Abdullah and Zaimah Abdur-Rahim is not actual or imminent as there is no
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allegation that they have or are currently selling their home. Storino v. Borough of Point
pleasant Beach,322 F.3d 2g3,297-298 (3'd Cir. 2003) (3'd Circuit holds that plaintiffs' injuries are too speculative where they could not demonstrate that their hotel/bed and breakfast was subject to anything other than prospective damages). Moreover, to the extent plaintifß' alleged injuries are based on their perception of how others may perceive or react to them, their claims
are also pure speculation.
Over thirty years ago, in Laird v. Tatum,408 U.S. I (1972), the Supreme Court
considered allegations similar to those in this case and rejected them as a basis for Article III standing. ln Laird, plaintiffs sought injunctive relief against the Army's surveillance of civilian political activity. 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
"fa]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 tha: 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 broad-scale investigation, conducted by themselves as private parties armed with the subpoena
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power of a federal district court and the power of cross examination, to probe into the Army's
intelligence-gathering activities. .." Id. at l4.a Other courts have followed Laird in similarly holding that plaintiffs cannot
challenge surveillance activities based merely on the fear that they will sustain a conjectural
injury, fear of surveillance itself, or some future speculative harm. In a case with facts similar to this one, the Third Circuit has held that police photographing and data galhering at public meetings, "without more, is legally unobjectionable and creates at best a so-called subjective chill which the Supreme Court has said is not a substitute for a claim of specific present harm or atlveat of specihc future harm." Philadelphia Yearly Meeting of Religious Soc, of Friends v. Tate, 519 F.2d 1335, 1336-1338 (3d Cir. 1975) (where plaintiffs alleged in their complaint that members of the Philadelphia Police Department were present at various demonstrations and
meetings and took photographs of many of those in attendance, and that the Department
compiled intelligence files on numerous individuals and groups). Similarly, in Fifth Ave. Peqce Parade Comm. v. Gray,480 F.2d 326 (2d Cir.
1973), the Second Circuit applied Laird and rejected a claim that anti-war demonstrators' freespeech rights were chilled by FBI investigation into the demonstration, given that plaintiffs could not show specific misuse of any information the FBI might have obtained about them. In that case, the plaintiffs alleged that the FBI maintained and kept records, including photographs, of various individuals who would be attending an anti-war demonstration in New York City. And in
o 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 occuned), 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.
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Nourv. New YorkCity Police Dep't,1995 U.S. Dist. Lexis 1096 (S,D.N.Y. 1995) (Keenan, J'), the Court found the plaintiff s allegations that the surveillance he was subjected to was "nerveraking [sic]," "shocking," and impeded the "forward progress of [his] movements," and that he no longer had a "private life" all insufficient to allege the required objective injury to establish standing. Id. at 8-10,
Several years later in United Presbyterian Church v, Reagan,738 F'2d 1375
(D.C. Cir. 1984), the D,C. Circuit rejected plaintiffs' challenge to enjoin the implementation of Executive Orders authorizing surveillance activities overseas on the ground that the threat of surveillance was inhibiting their protected activities. The D.C. Circuit held that Laird precluded this argument as a basis for standing, noting that cases employing the concept of a chilling effect "involve situations in which the plaintiff has unquestionably suffered some concrete harm (past
or immediately threatened) apart from the 'chill' itself." Id. at 1378. The Court in United Presbyterian also found plaintiffs' fears of surveillance to be speculative . Id, at 1380'
More recently, in 2006, in a case where the plaintiffs challenged the Terrorist Surveillance Program alleging they were likely to be monitored, the Sixth Circuit held that
plaintiffs' "anticipated harm is neither imminent nor concrete - it is hypothetical, conjectural, or
speculative" and therefore "cannot satisfy the 'injury in fact' requirement of standing." ACLU v' NSA,4g3 F,3d 644,662 (6th Cir.2007), After that threshold determination, the court went on to examine each of the plaintiffs' claims and concluded that plaintiffs' alleged First Amendment "chill" constituted a "self-imposed unwillingness to communicate" that cannot establish standing under Laird. Id, at 658,659-673. Accordingly, all of plaintiffs' alleged self-imposed limitations including decreasing their mosque attendance, changing their religious services, or changing where they choose to pray are not sufficient to establish standing.
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Finally, only three plaintiffs make allegations related to their current business,
They include:
o Plaintiff All Body Shop Inside & Outside ("All Body Shop") alleges that the
number of customers visiting the store has decreased and that some customers have told the owners by telephone that they did not feel comfortable visiting the
location because of the threat of NYPD surveillance, (Am. Compl. T 19).
. Plaintiff Unity Beef Sausage Company ("Unity Beef') alleges that "many regular
customers have not been coming to the store since the NYPD's Newark report was made public" and that some customers have called to say "they are no longer comfortable visiting the store." (Am. Compl. fl 21),
o Plaintiff The Council of Imams in New Jersey ("CINJ") is a membership
organization comprising a dozen New Jersey mosques. Two of the mosques, Masjid al-Haqq and Masjid Ali K, Muslim, allege that there has been a decline in attendance and contributions as a result of the NYPD's alleged surveillance.
(Am. Compl, T 15,)
While plaintiffs All Body Shop and Unity Beef allege fewer customers neither alleges a loss of revenue or income and thus have not alleged a concrete economic injury. In addition, while two mosques out of a total of twelve in the membership of plaintiff CINJ allege a "decline in attendance and contributions," plaintiff CINJ does not allege that there has been an overall decline in revenue or income at those mosques as a result of the complained of actions, In addition, CINJ's conclusory assertion that the decline in attendance and contributions "followed the disclosure" ofthe Program does not satisfy the "causal connection" prong ofstanding as it is
pure speculation and not traceable to the defendant's alleged actions, Constitution Party of P.A.
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v. Cortes,433 Fed, Appx. 89, 92 (3'd Cir, Pa. 2011) (3'd Circuit finds that the plaintifß clearly
failed to establish causation as there were no allegations in the complaint, other than conclusory , that the action alleged was responsible for the injury, and that the District Court could not rule out that the injury could have been due to other factors, or the actions of some other third party')
Eafordv. MR. P. LAGANA,2}II U.S. Dist. LEXIS 59822, *6 (D.N.J. June 6,2011) ("The causal connection between Defendants' alleged actions (placing Plaintiffls inmate account on hold) and Plaintiff s litigation difficulties is too attenuated to constitute the causal connection required for standing under Lujan.) Accordingly, these allegations are insuff,rcient to satisfy either the first or second prong ofthe test for standing under Luian'
C. Plaintiffs Atteged Injuries Are The Result Of A Third Party' Not the City of New
York Assuming that plaintiffs have asserted a injuries in fact to satisfy Article III
standing, which they have not, their injuries are not fairly traceable to the actions of the
defendants. Standing requirements dictate that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court. Simon v. Eastern Ky. Welfare Rights Organization,426 U.S. 26, 4l-42 (1976); Duquesne Light Co. v, United States EPA, 166F,3d 609,613 (3d Cir. 1999) (f,rnding standing requirement not met where injury is manifestly the product of the independent action of a third party),
Here, as stated previously, plaintiffs specifically omit from their First Amended Complaint that the disclosure of the documents about which they complain was the sole result of the Associated Press ("4P") publishing the documents along with a series of articles based upon
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their own interpretation of the documents.s 'When the AP published some of the documents, for
example the Newark report, it did so without redacting the names or addresses of the entities therein. See Fanell Dec, fl3. If anything, it is the dísclosure of the documents by the Associated
Press in unredacted form which left in identifying information - not the NYPD's actions - that
has caused plaintiffs' alleged injuries. See e.g., Am. Compl.(lTI 15,19,21. To be clear, the City neither challenges the AP's right to investigate or expose alleged wrongdoing nor does the City endorse unlawful surveillance tactics. Rather, the City maintains that no unlawful surveillance took place and that it is the Associated Press's actions of publishing unredacted documents which constitutes an independent action of a third party not before the court and breaks the causation

requirement,
The fact that nowhere in the Amended Complaint do plaintiffs allege that they suffered any harm prior to the unauthorized release of the documents by the Associated Press confirms that plaintiffs'alleged injuries flow from the unauthoized disclosure of the documents

by the Associated Press.

POINT IV

PLAINTIFFS CLAIM FOR EXPUNGEMENT

OF'RECORDS SHO

RE DISMISSED

Plaintiffs' request for the expungement of records "made pursuant to past

unlawful spying" should be dismissed for all the same reasons previously set forth including that
the acts complained of in and of themselves are not unconstitutional (Point I), that plaintiffs fail
to state a claim (Point II), and because plaintiffs lack standing (Point III).

5 On a motion to dismiss pursuant to 12(b)(1) for lack of subject matter jurisdiction, the Court is allowed to consider facts outside the complainL see Sandy Hook Watermans Alliance, Inc. v.
N.J. Sports & ExpositionAuth.,20ll U.S. Dist. LEXIS 79488, *2 (D.N.J. Iuly20,20ll) (court
may properly consider documents specifically referenced in the complaint, as well as documents
that are part of the public record).

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CONCLUSION
\ryHEREFORE, for the reasons set forth above, plaintiffs' first amended
complaint should be dismissed in its entirety with prejudice, together with such other and further
relief as this Court may deem just and proper.
Dated: New York, New York
December 6,2012

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorneyþr Defendant City of New York 100 Church Street New York, New York 10007 (212) 442-4687

By:

s/ Peter G. Fanell

Peter G. Fanell

Senior Counsel

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Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 1 of 48 PageID: 126

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY x
SYED FARIIAJ HASSAN; THE COUNCIL OF IMAMS IN NE\il JERSEY, MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CÄNADA, 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

-against-

Plaintiffs,

t2-cY-3401 -SDW-MCA

THE CITY OF NE\ry YORK,

Defendant. ------- x

DECLARATION OF PETER G. FARRELL PETER G. FARRELL, an attorney duly admitted to practice in the United States District

Court for the District of New Jersey, declares under penalty of perjury and pursuantto 28 U.S'C.

$1746 that the following statements are true and correct:
1. I am a Senior Counsel in the office of MICHAEL A. CARDOZO, Corporation
Counsel of the City of New York, attorney for the defendant. I am familiar with the facts and circumstances stated herein based upon personal knowledge and submit this declaration in
support of Defendant's Motion to Dismiss the First Amended Complaint with prejudice pursuant

to Federal Rules of Civil Procedure l2(bXl) and 12(b)(6).
2. Annexed hereto as Exhibit A is a true and accurate copy of the First Amended

Complaint dated October 3,2012.
3. The documents about which plaintiffs refer to in their First Amended Complaint
were the subject of a series of articles by the Associated Press ("4P"). The AP also released the documents to the public aTlargebeginning in or about August 2011. For example, the "Newark

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 2 of 48 PageID: 127

report" referred to in the First Amended Complaint beginning in fl5 was a document released to
the public by the AP. The AP released the Newark report, for example, without redacting the
names or addresses of the entities therein.
4. In May of 2072, the office of the Attorney General of New Jersey issued a press
release related to the subject matter of the articles written by the Associated Press and the
corresponding documents released by the AP. Annexed hereto as Exhibit B is a true and
accurate copy of a press release from the Office of the Attorney General dated May 24,2012 titled "Office of the Attomey General Takes Steps to Address Ouçof-State Law Enforcement Activity in New Jersey Following Fact-Finding Review," The press release states that a fact finding review has "revealed no evidence to date that the NYPD's activities in the state violated New Jersey civil or criminal laws."
5, The First Amended Complaint refers to a2006 report regarding a Danish artist's
cartoons of the Prophet Muhammad. Annexed hereto as Exhibit C are true and accurate copies
of news articles from The New York Times titled (i) "Temperatures Rise Over Cartoons
Mocking Muhammad" dated February 3,2006; (ii) "Italian Quits Over Cartoons; 15 Die in Nigeria" dated February 19,2006; (üi)"2 Die as Pakistan Cartoon Rage Turns Violent" dated
February 15,2006; (iv) and an article from The V/ashington Post titled "Cartoons of Prophet Met With Outrage" dated JanuarY 31,2006.

Dated: New York, New York December 6,2012

s/ Peter G. Fanell Peter G. Fanell Senior Counsel

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 3 of 48 PageID: 128
EXIIIBIT A

CCaasese2:Z1:2L-2c-vc-v0-30430410-W1-SJMD-WM-FMCDAocDuomceunmte1n5t-210FiFleilded121/-006/0/132/1,2PaPgaege4 1o" fo4f 830PaPgaegIeDlD: :12694

Glenn Katon Farhana Khera
MUSLIM ADVOCATES
315 Montgomery Street, 8th Floor San Francisco, CA 94104
Ravinder S, Bhalla
LAW OFFICES OF BHALLA & CHO, LLC
333 Washington Street, Suite 203 Jersey City, NJ 07302
Attorneysþr Plaintffi

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

SYED FARHAJ HASSAN; THE COLTNCIL OF IMAMS IN NEW JERSEY; MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC.; ALL BODY SHOP INSIDE & OUTSIDE; TINITY BEEF SAUSAGE COMPANY; MUSLIM FOUNDATION INC,; MOIZ MOHAMMED;JANE DOE; SOOFIA TAHIR; ZAIMAH ABDUR-RAHIM; ANd ABDULHAKIM ABDULLAH

Case No. 2:12-cv-0340 I -SDWMCA

Plaintiffs,

Jury Trial Demanded

V
THE CITY OF NEW YORK,
Defendant.

F'IRST AMENDED COMPLAINT

CCaasese2Z:1:2u-2c-vIv-0-03340410-LW-SJDMW-M-MF CDAocDuomceunmte1n5t-2l-0FiFleilded12L/00/60/31/21"2PPagaege52ofo4f 830PPagaegIeDlD: :13650
PRELIMINARY STATEMENT
l. This is a civil rights action based upon the United States Constitution and 42
U.S,C. $ 1983, to remedy the illegal and unconstitutional targeting of New Jersey Muslims for surveillance based solely upon their religion by the New York City Police Department ("NYPD" or "Department"), Plaintiffs seek an injunction prohibiting the NYPD from targeting them for unconstitutional surveillance, expungement of all records made pursuant to past unlawful spying,
a declaratory judgment, and compensatory and nominal damages.
2. In early 2002, the NYPD began a secret spying program ("Program") to infiltrate
and monitor Muslim life in and around New York City. In all its years of operation, the Program
has never generated a single lead'
3. The Department has focused, in particular, upon New Jersey Muslims. It has
conducted surveillance of at least twenty mosques, fourteen restaurants, eleven retail stores, two
grade schools and two Muslim Student Associations, in addition to an untold number of
individuals who own, operate, and visit those establishments. The thoroughness and precision of the Department's surveillance is reflected in its creation of more than twenfy precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community'
4. As part of the Program, the NYPD takes photographs and videos and collects
license plate numbers at mosques. The Department also utilizes undercover offtcers and
2

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informants to infiltrate and surveil Muslim communities, including mosques, Muslim Student Associations, and Muslim-owned businesses. Upon information and belief, the NYPD Program has not undertaken such surveillance with respect to non-Muslim communities in New Jersey.
5. The NYPD has created a series of reports documenting in detail the information
obtained from its surveillance of New Jersey Muslim communities through its surveillance
program, including a report focusing on the Muslim community in Newark ("Newark report"). Plaintiffs include mosques, the national umbrella Muslim student association, Muslim-owned businesses, and the principal of an Islamic school for girls, that were identified in these reports, as well as associations whose members were identified in these reports. Plaintiffs also include
individual members of New Jersey mosques and Muslim Student Associations that were
identified in the NYPD reports as subjects of the surveillance Program.
6. The NYPD Program is founded and operated upon a false and constitutionally
impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law enforcement surveillance targets, or that it is a permissible proxy for criminality, and that
Muslim individuals, businesses, and institutions caî therefore be subject to pervasive
surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public atlarge.
7. Through the Program, the NYPD impermissibly discriminates on the basis of
religion and singles out Plaintiffs for disfavorable and unequal treatment by police. By targeting Muslim entities and individuals in New Jersey for investigation solely because they are Muslim
J

CCaassee22:1:L22-c-vc-v0-O3430410-1W--JSMD-WM-FMCDAocDuomceunmte1n5t-2l-0FFileiledd12l-/00/60/312/12PPagagee74ofo4f 830PPagageeIDlD: :16372
or believed to be Muslim, the Program casts an unwarranted shadow of suspicion and stigma on
plaintiffs and, indeed, all New Jersey Muslims. Each Plaintiff has suffered from the
stigmatization that results from being singled out for surveillance on the basis of their religious beliefs, which is a harm that invites additional prejudice and discrimination against them and all American Muslims.
8. Plaintiffs bring this lawsuit in order to affirm the principle that individuals may
not be singled out for intrusive investigation and pervasive surveillance that cause them
continuing harm simply because they profess a certain faith. JURISDICTION AND VENUE
g. The Court possesses jurisdiction to hear this matter pursuant to 28 U,S.C' $ 1331 because it alleges violations of the United States Constifution and 42 U.S.C' $ 1983, and
therefore raises questions of federal law, Jurisdiction is also based upon 28 U'S'C, $ 1343
because relief is sought for the deprivation of Plaintiffs' constitutional rights under color of State
law.
10, Venue is proper in the District of New Jersey under 28 U.S.C. $1391(b) because a
substantial part of the events or omissions giving rise to the claims herein occurred in this
District.
4

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PARTIES Plaintiffs
I l. Syed Farhaj Hassan is a New Jersey resident and a Soldier in a Civil Affairs
Brigade who has served in the United States Army Reserves since September 2001' He is thirtyfive years old and a U.S. Citizen. Hassan has served in Iraq (fourteen months of active duty and deployment to Iraq), during which time he worked in military intelligence, and has received numerous honors for his service, including the Army Service Ribbon, Global War on Terrorism Expeditionary Ribbon, National Defense Ribbon, Iraq Campaign Medal, Good Conduct Medal, three Army Commendation Medals, Army Achievement Medal, and Combat Action Badge. His address is 2403 Candlelight Court, Helmetta, NJ 08828'
12. Hassan is an observant Shi'a Muslim who attends mosque regularly. He has
attended the Astaan a-e-Zehra mosque most Fridays for the last two years and has been a congregant for 16 years. He also worships and attends events at the Masjid-e-Ali mosque
approximately ten times per year, the Mehfile Shahe Khorasan mosque approximately four times per year, ancl the Imam-e-Zamana Foundation of North America mosque approximately twice
per year. Each of these mosques is located in New Jersey and was identified in the NYPD
reports as a subject of the NYPD surveillance Program.
13, Hassan has been unfairly targeted and stigmatizedby the NYPD's surveillance of
his mosques as part of a program targeting Muslim organizations, He has decreased his mosque
5

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attendance significantly since learning that the mosques he attends have been under surveillance by the NYPD because he has a reasonable and well-founded fear that that his security clearance
would be jeopardized by being closely affiliated with mosques under surveillance by law
enforcement. Any blemish in his background check jeopardizes his security clearance and thus his career. Hassan is also concerned that his fellow soldiers, including his superiors, will have
diminished trust in him and treat him differently - thereby harming his career prospects - if they
learn he is a regular congregant at mosques under NYPD surveillance. He believes, reasonably, that if he decreases his attendance, he is less likely to be seen andlor recorded at the mosques.
14. The Council of Imams Ín New Jersey ("Council" or "CINJ") is a non-profit
corporation organizedunder the law of New Jersey and based in the Newark area. Its address is
62-70 Howard Street, Irvington, NJ 07111. Among other things, the Council is formed to
conduct what is called Mutual Consultation ("Shuraa Baynahum") for the purpose of establishing a whole and balanced society and facilitating the current and future circumstances that shape the continuous improvement of the Muslim Community. The Council is a membership organization
comprising a dozen New Jersey mosques, at least two of which, Masjid al-Haqq and Masjid Ali K. Muslim, have been surveilled as part of the NYPD's Program in New Jersey. Photographs
and descriptions of both of these mosques are included in the Department's Newark report.
15. Masjid al-Haqq and Masjid Ali K. Muslim have been a part of the Newark
community for thirly and over forty years, respectively. Leaders and congregants in both mosques have been unfairly targeted and stigmatized by the NYPD's surveillance of their
6

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mosques as part of a program targeting Muslim organizations. Both mosques have also seen a decline in attendance and contributions as a result of the Department's surveillance, Losses in attendance and financial support that followed the disclosure of the Program targeting Muslims have directly harmed both mosques' ability to fulfîll their religious missions.
16. Muslim Students Association of the U.S. & Canada, Inc. ("MSA National") is
a non-profit corporation organized under the law of Indiana, based at 6555 South 750 East, plainfield, IN 46168. MSA National serves Muslim students during their college and university careers by facilitating their efforts to establish, maintain and develop local MSA chapters. It strives to facilitate networking, educating and empowering the students of today to be citizens of tomorrow's community. To achieve its objectives, MSA National develops tools and resources
to facilitate information sharing and to unite students across North America.
17. Two of MSA National's members, the Muslim Student Associations for the
Rutgers University campuses at Newark and New Brunswick, were subject to surveillance in New Jersey through the NYPD Program. These MSAs were singled out for surveillance by the NYPD simply because their membership is made up of Muslim students. Student organizations affiliated with other religious denominations were not subject to similar surveillance' Such biased police spying invites additional discrimination and prejudice against all current and
former MSA students and diminishes the MSAs' ability to fulfill their spiritual and ptactical missions. As affinity student groups, MSAs subject to surveillance of their activities and
discussions are diminished in their ability to establish viable student organizations that students
7

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will feel secure joining and participating in. Their ability to embark upon integral partnerships with campus administrators and other organizations and fulfîll the spiritual needs of their
members in a confidential manner is also impaired.
18. Alt Body Shop Inside & Outside is a New Jersey corporation that owns and
operates aretail store and cafe in downtown Newark (20 Branford Place, Newark, NJ 07102)'
The store was founded in 1998. Its owners, Gary Abdul Karim Abdullah and Hamidah Z.
Abdullah, are Muslims who have lived and worked in the Newark communify for their entire lives. All Body Shop Inside & Outside was identified in an NYPD report as "Hamidah's Body Shop" and was subject to surveillance as part of the NYPD Program'
lg. The owners of All Body Shop Inside & Outside have been unfairly targeted and
stigmatized by the NYPD's surveillance of their business as part of a program targeting Muslim organizations. The NYPD's Program has also harmed their business by scaring away customers. A photograph and description of their store is included in the NYPD's Newark report, which has
been widely publicized. Since people learned that All Body Shop Inside & Outside was under
NYPD surveillance, the number of customers visiting the store has decreased and some
customers have told the owners by telephone that they did not feel comfortable visiting the location because of the threat of NYPD surveillance.
20. Unity Beef Sausage Company ("Unity") is a New Jersey corporation that owns
and operates Unity Brand Halal Products, Inc., a halal meat store in downtown Newark (94 Orange Street, Newark, New Jersey 07102). It has a store for retail and wholesale and a building
8

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for manufacturing. Founded in 1968, Unity is owned by Akbar Salaam, who is Muslim. Unity was surveilled as part of the NYPD Program in New Jersey, and a photograph and description of the Unity store appears in the NYPD's Newark report, which has been widely publicized,
21. Unity's owner, his employees, and his customers have been unfairly targeted and
stigmatized by the surveillance of Unity as part of a program targeting Muslim organizations. The NYPD surveillance has also hurt business at the Unity halal meat store. Many regular
customers have not been coming to the store since the NYPD's Newark report was made public. For example, the store typically experiences a rush of business after Friday prayer services, when many Newark area Muslims do food shopping and run errands. That rush slowed considerably
immediately after the Newark report became public. Some customers have called to ask the
owner about the NYPD's surveillance and told him they are no longer comfortable visiting the store. The store's owner now fears conducting his legitimate business; he is concerned that anyone who comes in or looks at him from across the street might be an NYPD spy.
22. Muslim Foundation Inc. ("MFI") is a New Jersey non-profit corporation that owns and operates the Masjid-e-Ali mosque, located at 4l Cedar Grove Lane, Somerset, NJ,
08873. MFI's congregation comprises approximately 250 families. The Masjid-e-Ali mosque was surveilled as part of the NYPD's Program in New Jersey, and was identiflred in an NYPD
report as a subject ofsurveillance.
23. Leaders and congregants in MFI have been unfairly targeted and stigmatizedby
the NYPD's surveillance of their mosque as part of a program targeting Shi'a Muslim
9

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organizations, The NYPD's surveillance of the mosque, and its inclusion in an NYPD report casts an unwarranted cloud of suspicion upon the mosque and its membership. MFI has also changed its religious services and programming as a direct result of the NYPD surveillance' Prior to learning that it had been surveilled by the NYPD, the mosque hosted a variely of visiting Islamic scholars and religious authorities to provide guidance to the congregation on how to conduct their daily lives in accordance with religious laws. These discussions are integral to MFI's religious mission, which includes promoting the lives of its congregants in accordance with divine laws, fellowship, and religious discourse. After learning that it had been targeted for surveillance, MFI decided not to invite otherwise amenable religious authorities who might nevertheless be perceived to be controversial because of their previous spiritual or religious training in Iran, views on or history of vocalizing religious edicts aligned with certain prominent centers of learning in Shi'a Islam, or their opinions on the proper role of the Islamic faith and scholarship in the daily lives of adherent Muslims; MFI's leaders reasonably feared that the views of such religious authorities and guides would be attributed to the mosque's membership, As a result, MFI's abilify to fulfill its religious mission has been harmed.
24, Moiz Mohammed is a New Jersey resident (22 Woodbridge Street, New
Brunswick, NJ 08901) currently enrolled as a full-time student at Rutgers New Brunswick, where he is pursuing a degree in Molecular Biology and Biochemistry. He is currently a junior and has been active in the Muslim Students Association (MSA) since his freshman year. The
10

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Rutgers New Brunswick MSA was surveilled as part of the NYPD's Program in New Jersey, and was identified in an NYPD report as a subject of surveillance'
25. Mohammed has been unfairly targeted, and stigmatized by the NYPD's
surveillance of his MSA as part of a program targeting Muslim organizations, The NYPD's surveillance of his MSA unfairly targets him and other Muslim students. Members of other
religious groups are not subjected to such surveillance and monitoring. The stigma now attached to being a Muslim member of the MSA has caused Mohammed to avoid discussing his faith or his MSA parlicipation in public and to avoid praying in places where non-Muslims might see
him doing so, Thus, Mohammed bears the burden of being discriminated against by the
government, solely on account of his religion, which sends a signal that he is a less worthy
member of the political community.
26. Jane Doe is a New Jersey resident currently enrolled as a full-time student at
Rutgers New Brunswick in her junior year and is active in the Muslim Students Association' She will be moving the Court for leave to proceed under pseudonym after counsel for Plaintiffs confers with counsel for Defendant.
27. Doe suffers the same stigma as Mohammed as a result of the NYPD's
surveillance of the activities of Muslim students on campus. She experiences this stigma in a variety of ways. For instance, she no longer discusses religious topics at MSA meetings, such as
the differences between Sunni and Shi'a Islam, because of a reasonable fear that such
discussions would be misunderstood and taken out of context by those suspicious of her religion.
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She also has a reasonable fear that her discussions with other students and other participation in MSA activities may be observed by NYPD and taken out of context, resulting in unwarranted scrutiny premised solely on her Muslim faith and participation in religious discourse,
28. Soofia Tahir is a New Jersey resident (56 Southside Avenue, Somerville, NJ
08876) who was a member of the Rutgers Newark MSA during the 2003-2004 school year, She then attended Rutgers University's New Brunswick campus as an undergraduate from 2004 through 2008, and graduated with a bachelor's degree. She was a member of the Rutgers New Brunswick MSA during those years and served as its Vice President during the 2006-2007 school year, Tahir went on to attend graduate school at the Rutgers New Brunswick campus from 2010 through 2012, and graduated with a master's degree'
29, Like Mohammed and Doe, Tahir has been unfairly targeted, and stigmatized by
the NYPD's surveillance of the Rutgers MSAs in a way that is likely to endanger her future educational and employment opportunities. In particular, she focused her graduate studies on
international social work, a field in which many employment opporlunities aÍe with
governmental or non-governmental agencies that require background checks and/or security clearance. She reasonably fears that her membership and leadership in organizalions that have been surveilled by the NYPD as part of a program it describes as focused on "threats" and an attempt to document the "likely whereabouts of terrorists" will adversely affect her future job
prospects and any further educational pursuits.
I2

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30. The revelation of the NYPD's spying on Muslims in New Brunswick and at
Rutgers also caused Tahir to change the way she prayed and limit her conversations with others on certain topics. She curtailed discussions of religious and political topics while on the Rutgers
campus out of a reasonable fear that NYPD informants or undercover officers might be
eavesdropping and misconstrue what she said. She avoided religious and political topics rather than be subject to law enforcement scrutiny. Tahir also went to pray in very remote areas of the buildings in which she studied and worked on campus in order to try to avoid NYPD surveillance because of the uniquely visible way in which Muslims pray. On occasion, she would also go to work early in the moming so she could leave earlier in the day and do her mid-afternoon prayer at home, thereby reducing the Department's ability to surveil and scrutinizehet worship.
31. Zaimah Abdur-Rahim resides at 35 Finlay Place, Newark, NJ 07106. She is
currently a math teacher at Al Hidaayah Academy ("AHA"), a position she has held since 2010. A record of the NYPD's surveillance of AHA appears in the Newark repòrt, which includes a photograph and description of the school. Abdur-Rahim was also the principal of Al Muslimaat Academy ("AMA"), a school for girls grades frve through twelve, from 2002 through 2010.
Like AHA, a record of the NYPD's surveillance of AMA appears in the Newark report,
including a photograph, the address, and notations stating, among other things, that the school
was located in a private house and that the ethnic composition of the school was African
American.
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32. Abdur-Rahim has been unfairly targeted and stigmatized by the NYPD's
surveillance of AHA, where she is currently employed, and AMA, where she was last employed, as part of the Department's program targeting Muslim organizations. She reasonably fears that her future employment prospects are diminished by working at two schools under surveillance by law enforcement. Moreover, the Newark report's photograph of AMA is also Abdur-Rahim's home, where she has lived since 1993 with her husband and, at various times, her children and grandchildren. The fact that a photograph of her home appears on the internet in connection with the NYPD's surveillance program that the Cify of New York has since publicly exclaimed is necessary for public safety, has decreased the value of the home and diminished the prospects for
sale of the home.
33. Abdur-Rahim is especially concerned with the Department's spying on AMA,
because she and the all-female population of students there did not wear head coverings while attending classes. One of Abdur-Rahim's and her students' most sacred religious tenets is
modesty, their practice of which requires them to always keep their heads covered in the presence of men or boys. If NYPD officers entered the property surrounding the school and
- looked inside - for example to determine that it was attended by African Americans as reported
they would be violating this religious tenet.
34. Abdul-Hakim Abdullah is married to Abdur-Rahim and co-owns the 35 Finlay
Place home with her, He also served on the Board of Directors of Al Muslimaat from 2002 through 2010. Abdullah has suffered the same harm as Abdur-Rahim in connection with a
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decrease in the value of his home caused by the NYPD's surveillance and subsequent statements by Department officials.
Defendant
35. The City of New York is a municipal corporation duly incorporated and existing
pursuant to the laws of the State of New York and having its principal offices at City Hall, New
york, NY 10007. The City of New York has established and maintains the NYPD as a
constituent department or a1ency. The NYPD acts as the City of New York's agent in the area of law enforcement. The NYPD's operations include the activities described herein.
STATEMENT OF FACTS The NYPD Prosram Intentionallv Tarsets Muslims for Survei llance on the Basis of Relision
36. In January 2002, the NYPD created a secret spying program to analyze and
surveil the Muslim community in New York City and nearby regions, including Muslim
religious institutions, schools, businesses, associations, and congregations, The Department created the Program following the September 71, 2001, attacks based on the mistaken and unconstitutional premise that Muslim religious identity is a legitimate criterion for selection of
law enforcement surveillance targets, or that it is a permissible proxy for criminality, and that
Muslims can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large, simply because of their religion. This Program reflects a policy, custom, usage and/or practice of the NYPD to target the Muslim community for surveillance solely on the basis of religion.
15

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. 37

As part of this Program, the NYPD specifically and purposefully targets mosques,

Muslim-owned businesses, Muslim Student Associations, and Muslim schools for surveillance

based only upon the religious beliefs of their owners or members. The NYPD Program

intentionally targets only the Muslim faith and does not undertake similar surveillance with

respect to any other religious group, Thus, the Program perpetuates odious and unfounded
stereotypes about Muslims, including Plaintiffs, and stigmatizes them as members of a

disfavored community that is inherently dangerous and inferior.
38. The Department has focused, in particular, upon New Jersey Muslims as part of
its Program. The Department has conducted surveillance of at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two Muslim Student Associations in New
Jersey, in addition to an untold number of individuals who own, operate, and visit those
establishments. Furthennore, the Department has created over twenty precinct-level maps of the
City of Newark, noting the location of mosques and Muslim businesses and the ethnic
composition of the Muslim community. As part of the Program, it has also created a series of reports documenting in detail the information obtained from its surveillance of New Jersey

Muslim communities.
39, The Program uses a variety of methods to spy on Muslims. It has, among other
measures, taken video and photographs at mosques, Muslim-owned businesses, and schools. It has sent undercover officers to those locations to engage in pretextual conversations to elicit
information from proprietors and patrons. And it has planted informants in mosques, and

t6

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monitored websites, listserves, and chat rooms. The Department does not conduct similar surveillance of houses of worship, businesses, and schools associated with other religions, For example, on information and belief, no other religious group is uniformly and categorically
viewed as a legitimatetarget for investigation merely because of the actions of an exceedingly small fraction of people of the same faith who have violated the law'
40. In addition to targeting Muslims by focusing on mosques, Muslim-owned
businesses, and other Muslim-associated organizations as subjects of surveillance, the Program also intentionally targets Muslims by using ethnicity as a proxy for faith'
41. As part of the Program, the Department has designated twenty-eight countries and "American Black Muslim" as "ancestries of interest." The twenty-eight countries are:
Afghanistan, Albania, Algeria, Bahrain, Bangladesh, Chechnya, Egypt' Guyana, India, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya, Morocco, Pakistan, Palestine, Saudi Arabia,
Somalia, Sudan, Syria, Tunisia, Turkey, U.A.E., Uzbekistan, Yemen, and Yugoslavia. Those twenty-eight countries constitute about 80% of the world's Muslim population. All but five of the countries on the list are more than three-fourths Muslim. Of these five, all but two countries are majority Muslim and one of the remaining two countries is India, which alone is home to 11% of the world's Muslims.
42. However, the Department does not surveil all people and establishments with
"ancestries of interest," but expressly chooses to exclude people and establishments with such
"ancestries" if they are not Muslim, Thus, for example, the NYPD does not surveil Egyptians if
l7

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they are Coptic Christians, Syrians if they are Jewish, or Albanians if they are Catholic or

Orthodox Christian.
43. The NYPD's report analyzing Newark observes: "There appears to be a sizable
and growing non-immigrant, African-American Muslim population." No analysis of non-

Muslim African-Americans appears in the Newark report'
44. The NYPD's surveillance is not limited to those Muslims with "ancestries of
interest," In its surveillance of Newark, the Department has observed that the largest immigrant communities in that city are from Portugal and Brazil, countries not found on its list of twenty-

eight "ancestries." Nevertheless, the Department's Newark report examines these communities for the presence of Muslims: "No Muslim component within these [Portuguese andBrazilianf
communities was identified, with the exception of one identified location being owned and
operated by a Brazilian Muslim of Palestinian descent." No non-Muslim individuals or
establishments from Newark's Portuguese or Brazilian immigrant communities are identiflred in
the NYPD's Newark report. The Department's investigation, surveillance, and analysis are concerned only with Muslims. Religious affiliation is employed as the sole predicate for

investigation pursuant to the Program.

NYPD,s S

Activities

Muslims

45. The NYPD Program utilizes numerous forms of surveillance in its monitoring of

Muslim communities, including its surveillance of Muslim communities in New Jersey, The

NYPD Program does not undertake similar surveillance of non-Muslim communities, Despite

18

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its initial secrecy, public knowledge of the NYPD program to single out Muslims for
surveillance has become widespread in New Jersey and elsewhere.
46. As part of the Program, NYPD officers snap pictures, take video, and collect
license plate numbers of congregants as they arrive at mosques to pray, making records of those in attendance. They also mount surveillance cameras on light poles, aimed at mosques, for the purpose of round-the-clock surveillance. Officers can control the cameras with their computers
and use the footage to help identiff worshippers. The NYPD has not conducted similar
surveillance at non-Muslim houses of worship'
47, The Department also utilizes informants and undercover officers, who identiff
and report upon, among other things, businesses owned or frequented by Muslims; which stores sell halal meat; the subject of conversations overheardat mosques; and where religious schools are located. For example:
a. The NYPD uses undercover officers called "rakers" to monitor daily life in
neighborhoods it believes to be heavily Muslim. Rakers surveil locations such as
bookstores, bars, cafes, and nightclubs. They do so not based upon evidence of
wrongdoing, but because the Department believes it should surveil and investigate
American Muslims comprehensively in a way that it does not other religious
communities,
b. The NYPD also has informants called "mosque crawlers" who monitor serrnons
and conversations in mosques and report back to the NYPD, Mosque crawlers are
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used at mosques as part of a broader plan for blanket surveillance of Muslim
communities. The Department has strived to have an informant inside every mosque within a 250-mile radius of New York City and has, in fact, prepared an analytical report on every mosque within 100 miles, including Plaintiff MFI and at least two of
the members of CINJ. Upon information and belief, the NYPD's mosque crawlers
have monitored thousands of prayer services in mosques, collecting detailed
information about worshippers simply because they are Muslim, without evidence they engaged in any wrongdoing.
c. Rakers and mosque crawlers have monitored discussions in mosques about the
controversy surrounding the publication of a Danish artist's cartoons of the Prophet Muhammad, the results of which were included in a February 2006 report, That report, for example, documents twenty-three conversations at twenty mosques. None of the information collected showed any indication of criminal activity. The NYPD prepared a similar report after an accidental plane crash in Manhattan in October 2006. Upon information and belief, the Department prepares many such reports targeting Muslims, none of which even allegedly involve any wrongdoing.
d. Using mosque crawlers, rakers, and other officers and agents, the NYPD has
documented painstaking details of American Muslim life, including in New Jersey, and plaintiff instifutions and businesses. For example, Department surveillance reports note the fact that flyers are posted in shops advertising for Quran tutoring; a
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picture of a mosque hangs in a grocery store; a restaurant serves "religious Muslims;" customers visit a Dunkin' Donuts after Friday prayer a restaurant is located near a particular mosque; employees or customers of establishments are obseryed wearing
"traditional clothing;" Muslim prayer mats are hanging on the wall at an Indian restaurant; and a store posts a sign that it will be closed on Friday in observance of
Friday prayer.
48. The NYPD Program has not utilized informants and undercover agents to
undertake such focused or intensive surveillance of non-Muslim communities.
49. The NYPD also closely monitors the activities of Muslim Student Associations at
colleges and universities in New York, New Jersey, Connecticut, and Pennsylvania' It places
informants or undercover officers in all or virtually all MSAs, without any indication whatsoever of criminal activity or any connection whatsoever to wrongdoing'
50. NYPD officers monitor the web sites of Muslim student organizations, troll
student chat rooms, and talk to students online. Undercover NYPD officers sometimes pose as students to attend MSA events. One officer, for example, went on a rafting trip with an MSA and monitored and recorded how often the student participants on the trip prayed, and that they discussed religious topics. Knowing that undercover NYPD officers are recording the topics of Muslims' conversations and the frequency with which they pray reasonably causes Plaintiffs and other Muslims in the jurisdictions surveilled by the Department to chill their religious practices.
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51. On a weekly basis, the Department prepares an MSA Report on schools, including
reports on Rutgers New Brunswick and Rutgers Newark. Its reports include the names of
professors, scholars, and students without any evidence that they engaged in wrongdoing.
52. The Department does not conduct similar blanket surveillance of the activities of
Christian, Jewish, or any other religious student group.
53. To facilitate future surveillance of entire American Muslim communities, the
NYPD has created maps indicating the locations of mosques, restautants, retail establishments, and schools owned by or serving Muslims, as well as ethnic populations from heavily Muslim countries. The Department has over twenty such maps of Newark, New Jersey'
54. The NYPD has not compiled similar maps of non-Muslim communities. 55, The NYPD also inspects records of name changes and compiles databases of new
Muslim converts who take Arabic names, as well as Muslims who take names that ate perceived to be "'Westerïr," The Deparlment does not compile similar information for other kinds of name
changes.
56. The NYPD's surveillance of the Muslim community in New Jersey, including its
surveillance of Plaintiffs, is extensive and sustained. For example, undercover NYPD officers participating in the Program operated a base of operations in an off-campus apartment near
Rutgers New Brunswick. On information and belief, the NYPD Program in New Jersey,
including its surveillance of Plaintiffs, is ongoing.
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The NYPD

Harms the

and the Muslim

as a Whole

57. The NYPD's blanket surveillance of Muslims casts guilt on all people of that faith

by suggesting that Muslims pose a special threat to public safety, As targets of the NYPD's

discriminatory Program that endorses and perpetuates such false stereotypes, the Plaintiffs and
other New Jersey Muslims have been gravely stigmatized and will continue to suffer significant

harm as a group disfavored by the government'
58. The Department's Newark report analyzes more than forty "Locations of

Concern," which include mosques, restaurants, retail establishments, and a school for grades one
through four recognized by the New Jersey Department of Education. The report defines "Location of Concern" as, among other things, a "location that individuals may find co-
conspirators for illegal actions" and a "location that has demonstrated a signiflrcant pattern of illegal activities." The report does not identifu any "illegal activity" in respect to any of these locations. Rather, these establishments, which include Plaintiffs Unity halal meat store, All

Body Shop Inside & Outside, and two of the mosques represented by the Council of Imams in

New Jersey, were surveilled and are documented in the report only because they are Muslimowned or -affiliated, The sole basis for the Department's stated belief that illegal activity

occurred or is likely to occur is the religious identiff of those surveilled. Nonetheless, the

Department's use of such a description for mosques, businesses, and schools casts a dark shadow

of suspicion on congregations, customers, lenders, children and parents - indeed, the community

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as a whole - gravely stigmatizingand otherwise having a significant deleterious impact upon
them.
59. The NYPD causes similar damage in its report on the threat to New York City of
a potential U.S. - Iran conflict. Among the "key findings" and "recommended actions," included in the report are to "[e]xpand and focus intelligence collections at Shi'a mosques." While the report observes that "the majority of Iranian nationals residing in the US are either Zotoastian, Jewish, or Christian," the report only targets Muslim institutions, without any justification. Moreover, the report's focus on Shi'a Muslim mosques sweeps up vast numbers of individuals with no connection to Iran or to any threat arising from a potential conflict between the United States and Iran, Indeed, the report observes that the Shi'a Muslim community includes many individuals of Iraqi, Lebanese and Pakistani descent, Yet the report targets the Shi'a Muslim community as an undifferentiated whole. The report therefore unmistakably targets Muslim institutions simply because they are Muslim and unconstitutionally deploys religious afflrliation as a criterion for selection of law enforcement surveillance targets, or as a proxy for criminality.
60. - The U.S Iran report describes organizations believed to pose serious threats to
New York City, such as Hezbollah and Hamas, supporters of those organizations and their locations, followed by a list of "Other Shi'a Locations in the vicinity of NYC." This list of twelve Shi'a Muslim locations includes six in New Jersey, including Plaintiff MFI and its
Masjid-e-Ali mosque, as well as three additional mosques attended by Plaintiff Hassan (Astaanae-Zehra, Mehfile Shahe Khorasan, and Imam-e-Zamana Foundation of North America). The
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clear implication of the report is that Shi'a mosques pose a threat to public safety unlike other establishments and places of worship. But under the NYPD's Program the only reason that these mosques, including Plaintiff MFI and those attended by Hassan, were included in the report is that they are affiliated with Shi'a Islam, not because of any wrongdoing, any affiliation with designated organizations such as Hamas or Hezbollah, or any other legitimate reason,
61, The harm the NYPD inflicts on Plaintiffs and Muslim communities results not
just from the surveillance, and from the stigma of being targets of discrimination, but also from the public statements that defendant New York City officials make in support of the surveillance.
These statements have acknowledged the existence of the NYPD program, describing it as
focused on "threats" and as an attempt to document the "likely whereabouts of terrorists." By singling out American Muslims for unequal treatment and as "threats," government officials have sent a signal that they are less worthy participants in the political community,
62. Because the NYPD Program did not limit itself to threats or terrorists but rather targeted the Muslim community as a whole, such statements suggest that all Muslim
establishments are dangerous or likely to harbor terrorists, thereby engendering suspicion and
distrust of Muslim individuals and Muslim establishments, including Plaintiffs, affecting
people's livelihoods, damaging the fabric of Muslim communities and the broader society within
which Muslims live, and inviting prejudice and discrimination against Plaintiffs and other
Muslim individuals.
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63, On information and belief, the NYPD Program in New Jersey, including broad
surveillance of mosques, Muslim businesses and MSAs and, in particular surveillance of
Plaintiffs, is ongoing.
64. As part of the Program, NYPD offrcers frequently go back to surveillance
locations to make sure they have not changed, and updating their information is part of their duties and responsibilities. Indeed, New York City officials have made clear that they believe the NYPD's targeting of Muslims for surveillance on the basis of their religìon is appropriate and will continue. Discussing the surveillance, Mayor Bloomberg has stated publicly, "'We're doing the right thing. We will continue to do the right thing," Commissioner Kelly has said, "'We're
going to continue to do what we have to do to protect the city." Under our Constitution,
however, what the NYPD may not do is continue to target American Muslims for investigation
and pervasive surveillance simply because they are Muslim.
65. The Mayor and Police Commissioner have justified this sweeping, discriminatory
policy by repeatedly claiming that it is necessary to protect the public's safety. These public
offîcials' statements conflate religion with a security risk and falsely suggest that Muslims alone present a unique law enforcement threat. Such official proclamations, made exclusively in reference to the Muslim community, stigmatize Plaintiffs and the Muslim community in New Jersey, and invite additional prejudice and discrimination against them.
26

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CLAIMS FOR RELIEF FIRST CAUSE OF ACTION VIOLATIONS OF THE FOURTEENTH AMENDMENT TO THE U,S. CONSTITUTION
66. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully
set forth at length herein,
67. The Defendant's Program impermissibly and intentionally discriminates against
Plaintiffs because of their religion. As a direct and proximate result of the acts of the Defendant
and its agents, the Plaintiffs have therefore been deprived of their rights under the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. $ 1983.
SECOND CAUSE OF ACTION VIOLATIONS OF THE FIRST AMENDMENT TO THE U.S. CONSTITUTION
68. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully
set forth at length herein.
69. The Defendant's Program is neither neutral with respect to religion, nor of general
applicabilify, The Program instead singles out Plaintiffs' religion for disfavor and intentionally denigrates Islam. As a direct and proximate result of the acts of the Defendant and its agents, the Plaintiffs have therefore been deprived of their rights under the Free Exercise Clause and the Establishment Clause of the First Amendment to the United States Constitution and 42 U,S,C. $ re83.
27

CCaassee22:1:I22--cIvv--0033440011-,W-SJDMW-M-MF CDAocDuomcuemnte1n5t -12 0FiFleilded12I0/0l06/31l2L2PPagagee3128ofof4380PPagageeIDlD: :19516

THIRD

OF ACTION

EXPUNGEMENT ACTION AT COMMON LAW

70. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully

set forth at length herein.
TL Government entities may not maintain records where the harm to the Plaintiffs
caused by the existence of records outweighs the utility of their continued maintenance,
especially where the information contained in the records was compiled by unlawful methods'
72. Defendants' have compiled records identifying mosques represented by Plaintiffs
CINJ and MFI, the Rutgers Newark and Rutgers New Brunswick MSA chapters, represented by
Plaintiff MSA National, Plaintiff Unity Beef Sausage Company, and Plaintiff All Body Shop Inside & Outside as targets of surveillance and investigation. Upon information and belief, the
NYPD also maintains records identif,zing Plaintiffs Hassan, Mohammed, Doe, Tahir, AbdurRahim, and Abdullah as targets of surveillance or investigation, These records are likely to command attention from law enforcement officials, other agencies of government, and the public

atlarge, to the detriment of the Plaintifß,
73. Maintenance of these records, which are the fruits of the Defendant's
unconstitutional actions and which falsely identify the Plaintiffs as linked to the threat of terrorism, creates harms that signiflrcantly outweigh their utility, if any.

28

CCasaese2:21:2I2-c-Ivv--0033440011-W-SJDMW-M-FMCDAocDuomceunmte1n5t-2L0FiFleilded121/"006//0132/12PaPgaege3229ofo4f 830PaPgaegIeDlD: :15972
PRAYER FOR RELIEF WHEREFORE the Plaintiffs respectfully request that the Court:
(a) Declare that the Defendant's actions violate the Plaintiffs' rights under the First and Fourleenth Amendments of the United States Constitution;
(b) Enjoin fuither violations of the Plaintiffs' constitutional rights, including but not limited to an injunction that requires the Defendant to refrain from targeting Plaintiffs for
surveillance on the basis of religion;
(c) Order the expungement of all records of Plaintiffs made pursuant to past unlawful
spying; (d) Award Compensatory Damages to those Plaintiffs who have suffered economic harm;
(e) Award Nominal Damages for the harms suffered by Plaintiffs who are not awarded
compensatory damages;
29

CCaassee22:1'.2t2-c-cvv-0-033440011-W"-SJDMW-M-MF CDAocDuomcuemnte1n5t -t20 FFileiledd12I0/0lQ6/312lL2PPagagee330ofof4830PPagageeIDlD: :15938
(f) Award attorney's fees and costs associated with this action; and (g) Award any further relief as is just and proper and any other relief as allowed by law.
Respectfully submitted, Glenn M. Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street,8th Floor San Francisco, CA 94104
(4Is) 692-1484 (tel) (4rs) 76s-r774 (fax)
glenn@muslimadvocates. org /s/ Ravinder S. Bhalla Ravinder S. Bhalla
LAW OFFICES OF BHALLA & CHO, LLC
333 Washington Street, Suite 203 Jersey City, NJ 07302 (201) 610-9010 (tel) (201) 610-9030 (fax) rbhalla@rsblawfi rm, com
Attorneys þr Plaintffi
Dated: October 3,2012
30

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EXHIBIT B

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 35 of 48 PageID: 160

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For lmmediate Release: May 24,2012
office olThe Att-or¡ey G-elrer-al
- Jeffrey S. Chiesa, Attorney General

For Further lnformation: Media lnquiriesPaul Loriquet or Lee Moore 609-2924791
Citizen lnquiries609-292-4925

Office of the Attorney General Takes Steps to Address Out-of-State Law Enforcement Activity in New Jersey Following Fact-Finding Review

View Directive

TRENTON -- Attorney General Jeffrey S. Chiesa announced today that his
office has taken steps to improve law enforcement coordination and address concems expressed by Muslim community leaders following a three-month fact-finding review of intelligence-gathering conducted by the New York Police Department (NYPD) in New Jersey. The fact-finding review, which is
on-going, has revealed no evidence to date that NYPD's activities in the state
violated New Jersey civil or criminal laws.

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Among the steps taken by the Office of the Attorney General are the
following:
r An agreement has been reached to strengthen the lines of
communication with NYPD concerning investigative activities in New Jersey related to counter-terrorism, New Jersey law enforcement officials will meet with NYPD on a regular basis to exchange i nformation concerning counter-terrori sm i ntell i gence and operati ons.
r Effective immediately, by viftue of an Attorney General's Directive
issued today, New Jersey law enforcement agencies have formalized notification protocols to follow when they learn of law enforcement activity being conducted by out-of-state police agencies within their jurisdictions. For counter-terrorism-related matters, the Directive establishes reporting protocols to designated personnel at the New
Jersey State Police Counter-Terrorism Bureau and the Office of
Homeland Security and Preparedness, for further coordination with the Joint Tenorism Task Force headed by the Federal Bureau of
Investigation,
r The Attorney General's Office will establish a Muslim outreach

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 36 of 48 PageID: 161
committee in order to enhance communication and encourage agteatet understanding regarding issues of importance to both law enforcement and the Muslim community.
The fact-finding review conducted by the Offrce of the Attorney General included gathering information from individuals within the ranks of law enforcement in New Jersey, New York, and other states, as well as from civilians within the Muslim and other communities in New Jersey. The Office
of the Attorney General will continue to receive and assess information
relevant to the conduct at issue and cooperate with any other state or federal law enforcement agencies engaged in reviewing those matters'
Attorney General Chiesa anncunced the results of the fact-finding review to date after meeting earlier today with leaders from New Jersey's Muslim community at the Hughes Justice Complex in Trenton. The Attomey General explained that while, as a routine matter, law enforcement in New Jersey effectively coordinates operations to de-conflict and ensure operational safety
with out-of-state law enforcement agencies, the Directive issued today will
bring consistency to those reporting mechanisms based on the nature and scope of the underlying law enforcement activity. He also indicated that the
Directive, as well as regular meetings with the NYPD, will enable better, and more immediate, coordination of information for purposes of conducting
counter-terrori sm operations.
Recognizing the unique challenges of counter-terrorism intelligence gathering and investigations, while understanding the need to safeguardthe public's confidence in law enforcement's respect for fundamental civil liberties, Attomey General Chiesa said, "We remain committed to striking the appropriate balance of ensuring the safety of our citizens through vigilance in fighting terrorism, while not undermining the public's confidence in how we approach that m ission."
###
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Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 37 of 48 PageID: 162
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Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 38 of 48 PageID: 163

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Temperatures Rise Over Caftoons Mocking Muhammad
lilyOfìAlGlìfit4llllanilANf:ls)llliilì: crarqssmrlhrePÔri'cillromPtrisflìrlhrsàlrçie¿nclåafrsher lronrG!r;l? Puhhsl ed FÊþrr¿rv3 2c¡trj

An international dispute over European newspaper cartoons deemed blasphemous by some Muslims gained momentum on Thursday when gunmen threatened the European Union offices in Gaza and more European papers pointedly published the drawings as an affirmation of
freedom of speech.

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In Gaza, masked gunmen swarmed the European Union offices on Thursday to protest the cartoons, and there were threats to foreigners from European countries where the carloons have been reprinted, The gunmen stayed about 45 minutes.

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A newìy elected legislator from Hamas, the radicaì Islamic group that swept the Paìestinian elections last week, said large rallies were planned in Gaza in the next few days to protest the cartoons, which depict the Prophet Muhammad in an unflattering ìight. Merely publishing the image of Muhammad is regarded as blasphemous by many Muslims.
' "\{e are angry -- very, very, very angry," said the legislator, Jamila al-Shanty
, "No one can say a bad word about our prophet."

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The conflict is the latest manifestation of growing tensions between Europe and the Musìim world as the Continent struggles to absorb a fast-expanding Muslim population whose customs and values are often at odds with Europe's secuìar societies, Islam is Europe's fastest growing religion and is nowthe second largest religion in most European countries. Racial and religious discrimination against Muslims in Europe's weakest economies adds to the
strains.

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The trouble began in September in Denmark, when the daily Jyllands-Posten published 12 cartoons lampooning intolerance among Muslims and links to terrorism, A Norwegian magazine published the cartoons again last month, and the issue erupted this week after diplomatic efforts failed to resolve demands by several angry Arab countries that the publications be punished.

The cartoons include one depicting Muhammad with a bomb in place of a turban on his head and another showing him on a cloud in heaven telling an

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 39 of 48 PageID: 164
approaching line of smoking suicide bombers, "Stop, stop, we ran out of virgins!"
They have since been reprinted in France, Germany, Italy, Switzerland, Spain and Hungary. The BBC broadcast them on Thursday,
[On Friday, 3oo militant Indonesian Muslims went on a rampage inside the lobby of the Jakarta buiìding housing the Danish Embassy, unable to 8et past security to the embassy on the z5th floor, Reuters reported' They tossed rotten eggs and made fiery speeches calling on their government to sever diplomatic ties with Denmark and evict its ambassador' The protesters dispersed after an hour. There were no arrests']
Most European commentators concede that the cartoons were in poor taste but argue that conservative Muslims must learn to accept Western standards of free speech and the pluralism that those standards protect.
Severaì accused Muslims of a double standard, noting that media in several Arab countries continue to broadcast or pubìish references to "The Protocols of the Elders ol Zion," a notorious early zoth-century anti-Semitic hoax that presented itself as the Jews' master plan to rule the world'
Many Muslims say the Danish cartoons reinforce a dangerous confusion between Islam and the Islamist terrorism that nearly all Muslims abhor' Dalil Boubakeur, head of France's Muslim Counciì, called the caricatures a new sign of Europe's growing "Islamophobia,"
Saudi Arabia and Syria recalled their ambassadors from Denmark, while the Danish government summoned other foreign envoys in Copenhagen to talks on Friday over the issue, having already explained that it does not control the
press,
Jyllands-Posten has received two bomb threats in the past few days, despite having apoìogized for any hurt feelings about the drawings,
Thursday morning, about a dozen gunmen appeared at the European Union . offices in Gaza, firing automatic weapons and spray-painting a warning on the r outside gate. The men handed out a pamphlet warning Denmark, Norway and
: France that they had 48 hours to apologize
The office, staffed then only by Palestinians, reportedly received a warning that the gunmen were coming, and was quickly closed.
In Nablus, on the West Bank, two masked gunmen kidnapped a German from a hotel, thinking he was French or Danish, Agence France-Presse reported' They turned him over to the police once they realized their mistake,
Leaders of Fatah and Hamas said they did not endorse harming any foreigners in Gaza, All the same, the threat emptied hotels there of Europeans, most of them journalists,
France Soir, the only French daily to reprint the cartoons, fired its managing editor late Wednesday as "a strong sign of respect for the beliefs and intimate convictions of every individual," according to a statement from its owner'

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 40 of 48 PageID: 165

Ra¡tmond Lakah, an Egyptian-born French businessman.
In an editorial defending its decision to publish the cartoons, France Soir asked Thursday what would remain of "the freedom to think, speak, even to come and go," if society adhered to all of the prohibitions of the world's various religions. The result, the newspaper said, would be "the Iran ofthe muìlahs, for example,"
Afghanistan's president, Hamid Karzai, issued a statement condemning "in the strongest terms" France Soir's publication of the cartoons. "Any insult to the holy prophet (peace be upon him) is an insult to more than one billion Muslims," his statement read.
On Thursday, France's embassy in Algeria, a former colony, issued a statement condemning the publication, saying the French government was "deeply attached to the spirit of tolerance and to respect of religious belief, as we are to the principle offreedom ofthe press,"
"In this light, France condemns aìl those who hu¡t individuals in their beliefs or religious convictions," the statement read.
still, Europeans showed no signs of backing down. Le Monde ran a sketch of a man, presumably Muhammad, made of sentences reading, "I must not draw Muhammad."
photos: cartoons of Muhammad that offended many Muslims originated in Denmark, leading to flag-burning in Pakistan and a boycott in Bahrain. (Photo by Hamad Mohammed/Reuters); (Photo by Khalid Tanveer/Associated Press); Gunmen in Gaza seized the European Union office and marked it "Closed until an apology is sent to Muslims," Syrians protested Danish imports, (Photo by Louai Beshara/Agence France-Presse -Getty Images); (Photo by Mohammed Salem/Reuters)

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Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 41 of 48 PageID: 166

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February 19,2006
Italian Quits Over Cartoons; 15 Die in l{igeria
By IAN FISHER
- TURIN, Italy, Feb. l8 A day after at least 11 people were killed in Libya amid continuing violence
over the Danish cartoons of the Prophet Muhammad, an Italian government minister resigned Saturday for wearing a T-shirt printed with the cartoons,
[ln Nigeria, Muslims protesting the cartoons attacked Christians and burned churches on Saturday, t itting at least I S people in the deadliest confrontation yet in the whirlwind of Muslim ange.r over the drawings, The Associated Press reported.]
The protesters in Libya, angry over the minister's T-shirt, had stormed an Italian Consulate in Benghazi on Friday and were fired on by Libyan soldiers. Here in Italy, critics of Roberto Calderoli, the reforms minister who showed off his T-shirt on television earlier this week, blamed him for the
- violence and even his own political allies, including Prime Minister Silvio Berlusconi, demanded
his resignation,
In London, some 10,000 demonstrators marched in what was the largest of several protests there so far. And in India, a politician offered a reward for the deaths of the cartoonists.
fMobs of Muslim protesters swarm through Maiduguri, the capital of Borno State in northeastern Ñigeria, with machetes, sticks and iron rods, The A.P. said, One group threw a tire around a man, poured gas on him and set him ablaze.
[Thousands of rioters burned 15 churches in a three-hour rampage before troops and police ieinforcements restored order, said a Nigerian police spokesman, Haz Iwendi. Security forces arrested dozens ofpeople, he said.
[Chima Ezeoke, a Christian Maiduguri resident, said protesters attacked and looted shops owned by minority Christians, most of them with origins in the country's south, Vy'itnesses said three children and a priest were among those killed.
fNigeria, with a population of more than 130 million, is roughly divided between a predominantly Muslim north and a mainly Christian south.
fThousands of people have died in that West African country since 2000 in religious violence fueled by the adoption of the strict Islamic legal code by adozen states in the north, seen by most Christians as a move to impose religious hegemony on non-Muslims']
The Italian minister, Mr. Calderoli, quit under protest, warning against an Islamic "attack on the West,"

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 42 of 48 PageID: 167
"ln these last days I expressed in my way solidarity with all those who have been struck by the blind violence of religious fanaticism," he said in a statement that referred to an Italian priest killed this month in Turkey by a Muslim who was reportedly angry over the cartoons. "But it was never my intention to offénd the Muslim religion nor to be the pretext for the violence of yesterday," he said'
V/ith the dispute over Mr. Calderoli's shirt, the violence over the cartoons breached Italy's domestic politics. Mr. Calderoli belongs to a far-right party, the Northern League, that is small but influential' It is a key member of Mr. Berlusconi's center-right ruling coalition'
Mr, Berlusconi and the Libyan leader Muammar el-Oaddafi discussed the demonstration by telephone, with both agreeing that it should not have "negative repercussions" on their relationship.
In Libya, the riots also claimed a political casualty. Libya's interior minister was suspended for "an
.*.erriu. use of force" against the protesters there, The Associated Press reported. At least l1 people
were killed in violence there on Friday.
In central London, thousands of Muslims from across Britain chanted "Allah-u akbar" ("God is great" in Arabic) and waved placards in protest of the publication of the cartoons in Danish and other European newspapers, The cartoons were shown briefly on the BBC but have not been published by British newspapers.
The protest, which gathered under Nelson's Column in Trafalgar Square, drew at least 10,000 protésters, the police said, making it the biggest of three demonstrations in London in three weeks' Refening to the cartoons, one demonstrator, Mohamed Abdul Kabir, a23-year-old psychology
student from Accrington in the northwest England, said: "lt has gone beyond satire; it has gone to
insult, 'ù/ho defines the line where freedom stops?"
In India, a politician in the nation's largest state has offered an $11 million reward for the killing of
any of the banish cartoonists "who dared to make the caricature of the Prophet," according to Indian news media reports published Saturday. The state government official, Haji Yaqoob Quereshi, made the announcement at a rally in the north Indian town of Meerut after Friday Prayer.
State officials said he would not face charges because he was articulating his personal opinion. Demonstrations have broken out during the past several days in a number of Indian cities with large Muslim populations.
Alan Cowell contributed reporting from London for this article, and Somini Sengupta from Goa, India.
Copvriqht2006TheNewYorkTimesComoanvlHome lPrivacvPolicvlSearch lCorrections I Xr"flllUgplContact

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 43 of 48 PageID: 168

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2 Die as Pakistan Cartoon Rage Turns Violent

By SALMAN MASOOD
2006 pubtished: February 15,

ISLAMABAD, Pakistan, Feb, 14

-dozTewnsoinpjeuoreplde

were killed on Tuesday

and
in the

nation's worst day of protests against

the cartoons satirizing the Prophet

Muhammad, offrcials said.

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Violence flared in two cities as demonstrators rampaged through Islamabad, the capital, and Lahore in the east, vandal izing property, burning government buildings and attacking Western businesses. In Lahore, guards at a bank shot dead two people and the police struggled to control thousands of demonstrators,

Mian Khursheed/Reuters A KFC restaurant was among several that demonstrators burned Tuesday in Lahore, Pakistan.
Rgaders' OPlnl,oas
Forum: The Middle East

Protests have continued here for weeks over cafioons published last year in a Danish newspaper that have stirred Muslims' emotions around the world, Until Tuesday, demonstrations here had been relatively peaceful,

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On Tuesday morning, however, more than 3,000 students gathered in Aabpara Square and started marching toward

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 44 of 48 PageID: 169
the diplomatic enclave where most Western embassies âro coovriqht2oo6TheNewyorkrimescomoanv I Home I p.vacv
I situated. The protesters, mostly teenage students, wielded poricv I search I conections xMtll H9þ | contactus lworkror
sticks and clashed with the police while chanting slogans us I site Mao I Backtoroo I
against Denmark and the president of Pakistan, Gen. Pewez Musharraf,
The police used tear gas to disperse the students, who threw stones and tore down portraits of General Musharraf Interior Minister Aftab Ahmed Khan Sherpao said the protesters had no leader and were difficult to control, No major damage to Vy'estern embassies was repofted'
Later, some members of Parliament staged a protest walk from Parliament to the main entrance of the diplomatic enclave.
In Lahore, capital of Punjab Province, demonstrators burned two banks and McDonald's,Pizza Hut and KFC restaurants, and set part of the provincial parliament building afire. More than 200 cars were, damaged and dozens ofstores were ransacked,
News channels showed smoke billowing from damaged buildings and stick-wielding demonstrators smashing windows and clashing with the police' Protesters were seen looting an office of Telenor, a Norwegian cellphone company, and running off with computers and mobile
phone accessories.
Officials said they sympathized with the protesters' emotions but did not condone the violence,
"What message are we giving out by damaging our own?" the chief minister of Punjab, Chaudhary Petvez Elahi, told a television channel. Mr, Elahi said demonstrations were allowed to be held in a peaceful manner, but had been hijacked by miscreants.
As for the shooting of protesters in Lahore, Mr. Elahi said, "Bank authorities allege that the protestors were trying to force their way into the bank."
Although the caftoons have appeared in European newspapers, demonstrators vented their anger over the United States, as well, Geo, a television channel, showed reports of a group of protesters chanting, "Bush dog!" and "Down with Bush!" before smashing vehicles and stores. Protesters across Pakistan have demanded that the government sever ties with the countries where the cartoons have appeared and expel the Danish and Norwegian envoys,

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 45 of 48 PageID: 170

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Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 46 of 48 PageID: 171

ffiefo tsm i1f¡affi
Cartoons of Prophet Met With
Outrage
Depictions of Muhammad in Scandinavian Papers Provoke Anger, Protest Across Muslim
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By John Ward Anderson Washington Post Foreign Service Tuesday, January 31, 2006

PARIS, Jan. 30 -- Cartoons in Danish and Norwegian newspapers depicting the prophet

UN ITÊDW

Muhammad in unflattering poses, including

one in which he is portrayed as an apparent terrorist with a bomb in his turban, have

triggered outrage among Muslims across the Middle East, sparking protests, economic

boycotts and warnings of possible retaliation against the people, companies and countries

involved.

The cartoons were published in September in a conservative, mass-circulation Danish daily, Jyllands-Posten, and were reprinted three weeks ago in Magazinet, a small evangelical Christian newspaper in Norway. But the reaction has been widespread, and fallout over the images reached new levels Monday, with the European Union backing Denmark in the dispute and warning that a boycott of Danish products -- already being
felt by some companies -- would violate World Trade Organization rules.

Saudi ,\rabiahas recalled its ambassador from Denmark and Libya has closed its embassy in Copenhagen, the Danish capital. Kuwait called the cartoons "despicable racism." Iran's foreign minister termed them "ridiculous and revolting."

The cartoons included one another of him at the gates

of of

the prophet as heaven telling

a crazed, knife-wielding suicide bombers: "Stop,

Bedouin and Stop. 'We have

run

out of virgins! " -- a reference to the belief of some Muslim extremists that male suicide

bombers are rewarded in heaven with72 virgins.

Islamic critics charged that the cartoons were a deliberate provocation and insult to their religion designed to incite hatred and polarize people of different faiths. Defenders of the newspapers and artists said the 12 published cartoons simply were intended to highlight
Islam's intolerance.

The controversy has pitted two newspapers championing what they say is the cause of free speech against Islam's prohibition of any artistic depiction of the prophet

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 47 of 48 PageID: 172
Muhammad, which is considered blasphemous, no matter how benign. The clash is being fueled by a wave of anti-immigrant sentiment in staunchly secular Denmark, where many express frustration that the country's 200,000 Muslim immigrants are resisting assimilation into Danish society.
"There's widespread skepticism toward immigration and integration efforts" because of a popular belief that "immigrants are here to take advantage of the Danish system," said
Ulf Hedetoft, a political scientist at Aalborg University and director of Denmark's Academy for Migration Studies.
"People are inclined to see Islam and political extremism as two sides of the same coin,"
he said.
In a statement, the 57-nation Organization of the Islamic Conference has condemned "the printing of blasphemous and insulting caricatures of the Prophet Mohammed," saying it "falls into the trap set up by fundamentalists and fosters acts of revenge." Protesters across the Muslim world have burned Norwegian and Danish flags and issued sharp denunciations.
The controversy began in September, after an author in Denmark complained that he could not find an artist willing, under his own name, to illustrate a book about the prophet's life.
In response, Jyllands-Posten, the conservative daily, ran 12 cartoons by various staff artists depicting Muhammad. The paper explained that the project was meant to gauge the public's response.
In the Islamic world, it was swift and furious, but in Denmark, the majority backed the paper's right to print the cartoons. A recent poll showed that 62 percent of those surveyed said the paper should not apologize.
The tumult passed, but was reignited even more furiously when Magazinet, the evangelical Christian paper in Norway, reprinted the cartoons. The editor, Vebjoern
Selbekk, wrote that he was "sick of the ongoing hidden erosion of the freedom of
expression." He told the Reuters news agency that he had received 15 death threats and more than 1,000 hate letters.
The Danish Foreign Ministry late Sunday issued a statement warning its citizens in nine Middle Eastern countries and the Palestinian territories to "show extra vigilance" because of the "strong negative feelings" sparked by the uproar.
Meanwhile, a Denmark-based dairy group, Arla Foods -- which according to a statement on its Web site sells about S42l million annually in the Middle East and has about 1,000 employees there -- said that sales had come to a "standstill" across the region.

Case 2:12-cv-03401-WJM-MF Document 15-2 Filed 12/06/12 Page 48 of 48 PageID: 173

The newspapers have issued explanations but have couched their apologies. "'We are
sorry if Muslims have been offended," Jyllands' editor in chief, Carsten Juste, told the Associated Press, adding that the newspapers actions were "within the constitution, the Danish penal code and international convention. . . . It is not a dictatorship like Saudi
Arabia that is going to dictate our editorial line here in Denmark."

Norway described the cartoons as "unfortunate and deplorable." Danish Prime Minister Anders Fogh Rasmussen has refused to apologize.In a recent speech, without mentioning
the controversy, he denounced "any expression, action of indication that attempts to demonize groups of people on the basis of the religion or ethnic background." But he added that "freedom of speech is absolute. It is not negotiable."

"The question here is how far do you show sensitivity and self-control over issues without falling into selÊcensorship," said Medhi Mozaffari, a professor at Aarhus
University in Denmark, who defended his government's stance not to apologize.

"It's unthinkable that the prime minister would make an apology," he said. "This is Islamists putting democracies on trial to see how far they can be pressured."

Special correspondent Marie Vallq contributed to thís report.

View all comments that have been posted about this ârticle.

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Case 2:12-cv-03401-WJM-MF Document 15-3 Filed 12/06/12 Page 1 of 2 PageID: 174

. LI-NITED STATES DISTRICT COURT
?t:tT_:l:ï'_YïT:l

............x

SYED FARHAJ HASSAN; THE COLINCIL OF IMAMS IN NEV/ JERSEY; MUSLIM STUDENT ASSOCIATION OF THE U.S. AND CANADA, INC.; ALL BODY SHOP INSIDE & OUTSIDE; UNITY BEEF SAUSAGE COMPANY; MUSLIM FOLiNDATION INC'; MOIZ MOHAMMED; JANE DOE; SOOFIA TAHIR; ZAIMAH ABDUR-RAHIM; ANd ABDUL-HAKIM ABDULLAH
Plaintiffs,

t2Civ 3401 (SDV/XMCA)

-against-

THE CITY OF NEW YORK

Defendant

ORDER GRANTING THE MOTION TO DISMISS THE PLAINTIFF'S FIRST AMENDED MPLAINT PURSUANT TO FED. R. CIV. P. 12ftX 1l and l2lb)16)
THIS MATTER having been opened to the Court by way of a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(bX6) and 12(b)(1) filed by Michael A. Cardozo, Corporation Counsel of the City of New York, by Senior Counsel Peter G. Farrell, attorney for
Defendant the City of New York; and it appearing that Plaintiffs Syed Farhaj Hassan, The
Council of Imams in New Jersey, Muslim Student Association of the U.S. and Canada,lnc., 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 ("Plaintiffs") have notice of this application; and the Court having reviewed the submissions of

Case 2:12-cv-03401-WJM-MF Document 15-3 Filed 12/06/12 Page 2 of 2 PageID: 175

the parties; and the Court having heard the arguments of counsel; and for good cause having

been shown;

IT IS on this day of--

,2013, ORDERED that:

1. - Defendant's Motion To Dismiss the Plaintifß'First Amended Complaint

For Failure to State a Claim and For Lack of Standing is hereby

GRANTED;
2. Plaintiffs' First Amended Complaint is hereby DISMISSED with

prejudice;

BY THE COURT:

Hon. Susan D. V/igenton, U.S.D,J.

-L-1

Case 2:12-cv-03401-WJM-MF Document 15-4 Filed 12/06/12 Page 1 of 1 PageID: 176

CERTIFICATE OF SERVICE

L

I am a Senior Counsel in the office of MICHAEL A. CARDOZO, Corporation Counsel

of the City of New York, attorney for the defendant'

2. On this date, I caused to be electronically filed with the Clerk of the United States
District Court, District of New Jersey the within Notice of Motion to Dismiss the First Amended Complaint, Defendant's Brief in Support of Motion to Dismiss the First Amended Complaint, Declaration of Peter G. Fanell with Exhibits, and proposed form of Order.

3. On this date,Icaused copies of the foregoing to be served by ECF upon Plaintiffs'
counsel.

I certify under penalty of perjury that the foregoing statements are true and correct'

Dated: New York, New York December 6,2012

s/ Peter G, Fanell Peter G. Farrell Senior Counsel

 
 Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 1 of 49 PageID: 194

Glenn Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104
Ravinder S. Bhalla THE BHALLA LAW FIRM 333 Washington Street, Suite 203 Jersey City, NJ 07302
Baher Azmy Ghita Schwarz, pro hac admission pending Omar Farah, pro hac admission pending CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

SYED FARHAJ HASSAN, et al., Plaintiffs,
v. THE CITY OF NEW YORK,
Defendant

Document Electronically Filed Case No. 2:12-cv-03401-SDW-MCA ORAL ARGUMENT REQUESTED

PLAINTIFFS’ BRIEF IN OPPOSITION TO MOTION TO DISMISS

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 2 of 49 PageID: 195
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES ........................................................................................................ iii
PRELIMINARY STATEMENT ................................................................................................... 1
FACTS ........................................................................................................................................... 2
ARGUMENT ................................................................................................................................. 7
I. THE CITY’S EXPANSIVE PROGRAM TO MAP, TARGET, AND SURVEIL MUSLIM-AFFILIATED BUSINESSES, ORGANIZATIONS, AND INDIVIDUALS IN NEW JERSEY ON THE SOLE BASIS OF THEIR ISLAMIC RELIGIOUS AFFILIATION IS UNCONSTITUTIONAL. ...................................................................................... 7
II. PLAINTIFFS HAVE STATED A CLAIM THAT THE NYPD’S SPYING PROGRAM TARGETING THEM BASED SOLELY ON THEIR RELIGION VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS. ................................................................................................ 10
A. The First Amended Complaint Easily Satisfies the Pleading Standard of Rule 8 as Interpreted by Iqbal and Twombly........................ 11
B. When a Municipal Defendant Adopts An Overtly Discriminatory Policy and Custom, Iqbal’s Holding on Individual Vicarious Liability Does Not Apply......................................................................... 15
C. The Iqbal/Twombly Standard Does Not Require Plaintiffs To Rule Out Any Alternative Explanation For the City’s Overt Discrimination In Order To Survive A Motion To Dismiss. ................... 17
III. PLAINTIFFS HAVE ARTICLE III STANDING BECAUSE THEY EACH HAVE SUFFERED AN INJURY IN FACT THAT IS “FAIRLY TRACEABLE” TO DEFENDANT’S SPYING AND IT IS LIKELY THAT THE INJURIES WILL BE REDRESSED BY A FAVORABLE DECISION. .......................................................................................................... 21
A. Plaintiffs Have Suffered Injuries In Fact. ................................................ 22
1. Law enforcement surveillance can and in this case does give rise to injury in fact sufficient for Article III standing......... 22
- i -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 3 of 49 PageID: 196

TABLE OF CONTENTS (continued)

Page

2. Plaintiffs have been injured by being targeted on the basis of membership in a suspect class and on the basis of classification of a fundamental right, both of which are injuries in fact pursuant to the Equal Protection Clause. ............. 26

3. All Plaintiffs have been personally subjected to a policy disfavoring their religion and, in many cases, have altered their behavior as a result, causing injury in fact pursuant to Establishment Clause jurisprudence. ........................................... 27

4. Plaintiffs have been targeted by a practice that explicitly discriminates on the basis of religion and Plaintiff mosques have experienced a reduction in attendance and have been compelled to change their religious services and programming, injuries in fact to the right to free exercise of religion. ........................................................................................ 30

B. Plaintiffs’ injuries are “fairly traceable” to the NYPD’s discriminatory practices and are not the result of an independent action of a third party. .............................................................................. 32

C. Plaintiffs’ injuries will be redressed by a favorable decision. ................. 36

IV. PLAINTIFFS HAVE STATED A CLAIM FOR EXPUNGEMENT ................. 37

CONCLUSION............................................................................................................................ 39

- ii -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 4 of 49 PageID: 197

TABLE OF AUTHORITIES

CASES

Page(s)

ACLU v. Rabun County, 698 F.2d 1098 (11th Cir. 1983)................................................................................................. 29

ACLU-NJ ex rel. Miller v. Twp. of Wall, 246 F.3d 258 (3d Cir. 2001) ..................................................................................................... 29

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).................................................................................................................. 28

Allen v. Wright, 468 U.S. 737 (1984)............................................................................................................ 27, 37

Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997) ............................................................................................... 22, 25

Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60 (3d Cir. 2011) ................................................................................................. 12, 16

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................................... passim

Baugh Constr. Co. v. Mission Ins. Co., 836 F.2d 1164 (9th Cir. 1988) .................................................................................................. 24

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994)................................................................................................................ 7, 9

Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) ....................................................................................................... 17

Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007)...................................................................................................... 11, 12, 17

Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195 (3d Cir. 2006) ..................................................................................................... 10

Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012) ............................................................................................... 12, 13

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).................................................................................................................. 15

Bradley v. United States, 299 F.3d 197 (3d Cir. 2002) ..................................................................................................... 15

- iii -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 5 of 49 PageID: 198
Burlington N. R.R. v. Ford, 504 U.S. 648 (1992).................................................................................................................. 26
Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d. Cir. 2009) ...................................................................................................... 13
Camden v. Plotkin, 466 F. Supp. 44 (1978) ............................................................................................................. 36
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)........................................................................................................ 9, 12, 31
Common Cause v. Pennsylvania, 558 F.3d 249 (3d Cir. 2009) ..................................................................................................... 22
Craig et al. v. Boren, 429 U.S. 190 (1976).................................................................................................................. 20
Doe v. County of Montgomery, 41 F.3d 1156 (7th Cir. 1994) .................................................................................................... 22
Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011) ........................................................................................... 9, 13, 28
Doe v. U.S. Air Force, 812 F.2d 738 (D.C. Cir. 1987) .................................................................................................. 38
Duquesne Light Co. v. EPA, 166 F.3d 609 (3d Cir. 1999) ............................................................................................... 33, 35
Employment Div. v. Smith, 494 U.S. 872 (1990).................................................................................................................. 31
Foremaster v. St. George, 882 F.2d 1485 (10th Cir. 1989) ................................................................................................ 29
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009) .............................................................................................. 12, 17
Freedom from Religion Found. v. Zielke, 845 F.2d 1463 (7th Cir. 1988) .................................................................................................. 29
Gordon v. City of Moreno Valley, 687 F. Supp. 2d 930 (C.D. Cal. 2009) ...................................................................................... 19
Gould Elecs., Inc. v. United States, 220 F.3d 169 (3d Cit. 2000)...................................................................................................... 21
- iv -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 6 of 49 PageID: 199
Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277 (3d Cir. 1993) ................................................................................................... 25
Hall v. Pa. State Police, 570 F.2d 86 (3d Cir. 1978) ......................................................................................................... 8
Hawley v. Cleveland, 773 F.2d 736 (6th Cir. 1985) .................................................................................................... 29
Heckler v. Mathews, 465 U.S. 728 (1984).................................................................................................................. 27
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977).................................................................................................................. 24
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. N.J. 1997) ............................................................................................ 10
Johnson v. California, 543 U.S. 499 (2005).................................................................................................................... 7
Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d 164 (3d Cir. Del. 2001).............................................................................................. 22
Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974) ......................................................................................... 22
Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989) ................................................................................................... 28
Korematsu v. United States, 323 U.S. 214 (1944).................................................................................................................. 20
Laird v. Tatum, 408 U.S. 1 (1972)............................................................................................................... passim
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............................................................................................................ 21, 34
Major Tours, Inc. v. Colorel, 720 F. Supp. 2d 587 (D.N.J. 2010) ..................................................................................... 18, 19
McCreary County v. ACLU, 545 U.S. 844 (2005).............................................................................................................. 9, 28
McDaniel v. Paty, 435 U.S. 618 (1978).................................................................................................................. 31
- v -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 7 of 49 PageID: 200
McKay v. Horn, 529 F. Supp. 847 (D.N.J. 1981) ................................................................................................ 36
Meese v. Keene, 481 U.S. 465 (1987)............................................................................................................ 26, 35
Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985).................................................................................................................. 26
Miller v. Johnson, 515 U.S. 900 (1995).................................................................................................................. 26
Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)............................................................................................................ 15, 16
NAACP v. Alabama, 357 U.S. 449 (1958).................................................................................................................. 32
Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993).................................................................................................................. 26
Nykiel v. Borough of Sharpsburg Police Dep’t, 778 F. Supp. 2d 573 (W.D. Pa. 2011)....................................................................................... 17
Olivieri v. County of Bucks, U.S. App. 2012 LEXIS 22098 (3d Cir. PA. Oct. 24, 2012) ..................................................... 17
Oyama et al. v. California, 332 U.S. 633 (1948).................................................................................................................. 20
Palmore v. Sidoti, 466 U.S. 429 (1984).................................................................................................................. 20
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).................................................................................................................. 26
Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) ......................................................................................... 25, 37, 38
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979).................................................................................................................. 16
Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975) ......................................................................................... 8, 23, 25
Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ..................................................................................................... 12
- vi -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 8 of 49 PageID: 201
Powers v. Ohio, 499 U.S. 400 (1991)............................................................................................................ 13, 20
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) .............................................................................................. 23, 32
Raines v. Byrd, 521 U.S. 811 (1997) .................................................................................................................. 22
Saladin v. Milledgeville, 812 F.2d 687 (11th Cir. 1987) ............................................................................................ 22, 29
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963).................................................................................................................. 28
Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486 (3d Cir. 1999) ..................................................................................................... 35
Shrum v. City of Coweta, Oklahoma, 449 F.3d 1132 (10th Cir. 2006) ................................................................................................ 13
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).............................................................................................................. 33, 34
Socialist Workers Party v. Attorney General, 419 U.S. 1314 (1974)................................................................................................................ 32
Suhre v. Haywood County, 131 F.3d 1083 (4th Cir. 1997) ............................................................................................ 28, 29
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181 (3d Cir. 2006) ..................................................................................................... 24
Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) ..................................................................................................... 12
Turicentro v. Am. Airlines, 303 F.3d 293 (3d Cir. 2002) ..................................................................................................... 21
Turkmen et al. v. Ashcroft, No. 02 CV 2307, 2013 U.S. Dist. LEXIS 6042 (S.D.N.Y. Jan. 15, 2013) ............................... 19
U.S. v. Students Challenging Regulatory Action Procedures, 412 U.S. 669 (1973).................................................................................................................. 22
United States v. Brignoni-Ponce, 422 U.S. 873 (1975).................................................................................................................. 20
- vii -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 9 of 49 PageID: 202
Van Orden v. Perry, 545 U.S. 677 (2005).................................................................................................................... 9
Wallace v. Jaffree, 472 U.S. 38 (1985).................................................................................................................... 28
Warth v. Seldin, 422 U.S. 490 (1975)............................................................................................................ 22, 33
Washington v. Davis, 426 U.S. 229 (1976)...................................................................................................... 12, 13, 17
Whren v. U.S., 517 U.S. 806 (1996).................................................................................................................... 8
STATUTES 42 U.S.C. § 1983........................................................................................................................... 15 OTHER AUTHORITIES Restatement (Second) of Torts § 928 (1977) ................................................................................ 24 RULES Fed. R. Civ. P. 12(d) ..................................................................................................................... 10 Fed. R. Civ. P. 8 ............................................................................................................................ 11
- viii -

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 10 of 49 PageID: 203
PRELIMINARY STATEMENT This Court should deny the City of New York’s motion to dismiss Plaintiffs’ First Amended Complaint because the New York City Police Department’s massive surveillance program targeting Muslims in New Jersey, including these Plaintiffs, is based solely on religion and without any individualized suspicion of wrongdoing. The NYPD’s targeting of Muslims violates some of the most basic civil rights enjoyed by all Americans, including American Muslims. Those protections include: equal protection of the law under the Fourteenth Amendment, free exercise of religion under the First Amendment, and freedom from the effects of the government’s disfavoring religion under the Establishment Clause. The City’s policies and practices so clearly violate Plaintiffs’ constitutional rights that its brief does not even address the three claims asserted in the First Amended Complaint. Instead, the City first summarily states that surveillance is not per se unconstitutional – an observation too obvious to dispute, but one which utterly misapprehends the nature of Plaintiffs’ claims. Surveillance is, of course, permissible in certain circumstances, but it cannot be motivated exclusively on the basis of constitutionally protected criteria such as religion. Second, the City claims that Plaintiffs have failed to adequately plead their case, which is a remarkable assertion considering the abundance of specific factual allegations in the complaint, which are based largely upon the NYPD’s own documents. The City also provocatively suggests that the events of 9/11 could justify the undifferentiated surveillance of an entire religious community – a startling claim that threatens to upend decades of bedrock constitutional and civil rights principles. Finally, the City argues that Plaintiffs lack standing to challenge the NYPD’s unlawful practices because their injuries resulting from the NYPD’s spying are not cognizable. Plaintiffs have sustained a wide range of injuries caused by the NYPD surveillance, including: (i) the

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 11 of 49 PageID: 204
stigma of religious discrimination; (ii) the change and reduction of their religious practices; (iii) the decreased participation by mosque congregants; and (iv) compensatory and nominal monetary damages. Thus, Plaintiffs injuries are a whole different species from the narrow “subjective chill” to expressive activity that the City’s brief contends cannot support standing.
The complaint’s amply detailed description of the City’s explicitly discriminatory surveillance program combined with the range of concrete injuries that program has caused Plaintiffs render the City’s motion to dismiss without merit. It should, therefore, be denied.
FACTS Plaintiffs are Muslim individuals and organizations from all walks of life who have been victims of the NYPD’s spying program (“Program”) solely because of their faith or religious association. (First Am. Compl. ¶¶ 11-34.) They include New Jersey mosques, Muslim-owned businesses, student associations, and individuals who are members or are otherwise affiliated with those establishments. (Id.) As documented in its own reports, since January 2002, defendant City of New York (“NYC” or “the City”), through the NYPD, has conducted a massive targeting, mapping and surveillance program to monitor the lives of Muslims, their businesses, houses of worship, organizations, and schools in New York City and the Eastern Seaboard, with particular emphasis on New Jersey. (Id. ¶¶ 36, 38.) The NYPD’s spying program targets Plaintiffs and an untold number of other Muslim individuals and entities based purely on religious affiliation, without reason to believe anyone has done anything wrong. (Id. ¶ 3.) In its ten years of existence, the Program has not produced a single lead to criminal activity. (Id. ¶ 2.) In New Jersey, the Program focuses on several major hubs of Muslim life, including the City of Newark and the Muslim communities in central New Jersey, including the New Brunswick area. (Id. ¶¶ 38, 51.) The NYPD targets Muslim New Jersey residents, businesses,
2

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 12 of 49 PageID: 205
schools, and organizations, including Plaintiffs, for surveillance because of, and only because of, their Muslim identities. (Id. ¶¶38, 42-44).
The NYPD reports show that in addition to targeting Muslims by focusing on mosques, Muslim-owned businesses, schools, and other Muslim-associated organizations, the Program intentionally targets Muslims by using ethnicity as a proxy for faith. (Id. ¶ 40.) The Department has designated twenty-eight countries and “American Black Muslim” as “ancestries of interest.” (Id. ¶ 41.) Those twenty-eight countries constitute about 80% of the world’s Muslim population. (Id.) However, the Department does not surveil all people and establishments with “ancestries of interest,” but expressly chooses to exclude people and establishments with such “ancestries” if they are not Muslim. (Id. ¶ 42.) For example, the NYPD does not surveil Egyptians if they are Coptic Christians, Syrians if they are Jewish, or Albanians if they are Catholic or Orthodox Christian. (Id.)
The NYPD’s Newark report focuses on ethnicity by observing: “There appears to be a sizable and growing non-immigrant, African-American Muslim population.” (Id. ¶ 43.) No analysis of non-Muslim African-Americans appears in that report. (Id.) The Newark report even scrutinizes groups other than the “ancestries of interest” in order to focus on Muslims: “No Muslim component within these [Portuguese and Brazilian] communities was identified, with the exception of one identified location being owned and operated by a Brazilian Muslim of Palestinian descent.” (Id. ¶ 44.)
The NYPD uses a wide variety of methods to spy on Muslims. (Id. ¶ 39.) Among other measures, the NYPD videos, photographs, and infiltrates mosques, Muslim-owned businesses, organizations, and schools, including Plaintiffs. (Id. ¶¶ 46-47.) Undercover officers at those locations engage in pretextual conversations to elicit information from proprietors and patrons.
3

Case 2:12-cv-03401-WJM-MF Document 22 Filed 01/25/13 Page 13 of 49 PageID: 206
(Id. ¶ 39.) And the Department monitors Muslim-affiliated websites, listserves, and chat rooms. (Id.)
The Program maps, targets, and surveils virtually every aspect of day-to-day Muslim life. (Id. ¶¶ 2, 47.) For example, the NYPD uses undercover officers called “rakers” to surveil locations such as bookstores, bars, cafes, and nightclubs in neighborhoods it believes to be predominantly frequented by Muslims. (Id. ¶ 47.) In addition, the Program uses informants called “mosque crawlers” who monitor sermons and conversations in mosques and report back to the NYPD. (Id.) Using mosque crawlers, rakers, and other officers and agents, the NYPD compiles surveillance reports noting details such as: flyers posted in shops advertising for Quran tutoring; a picture of a mosque hangs in a grocery store; a restaurant serves “religious Muslims;” customers visit a Dunkin’ Donuts after Friday prayer; a restaurant is located near a particular mosque; employees or customers of establishments are observed wearing “traditional clothing;” Muslim prayer mats are hanging on the wall at an Indian restaurant; and a store posts a sign that it will be closed on Friday in observance of Friday prayer. (Id.) The NYPD creates numerous separate reports to maintain such details of various cross sections of Muslim communities, based upon geography, sect, and ethnicity. (Id. ¶¶ 5, 12, 37, 47, 58.) Many of those reports include maps indicating the locations of mosques, restaurants, retail establishments, and schools owned by or serving Muslims, as well as ethnic populations from heavily Muslim countries. (Id. ¶ 53.) For Newark, New Jersey, alone, the Department maintains over twenty such maps. (Id. ¶ 3.)
Another method the NYPD uses to track Muslims is inspecting records of name changes and compiling databases of new Muslim converts who take Arabic names, as well as Muslims who take names that are perceived to be “Western.” (Id. ¶ 55.) The Department does not compile similar information for other kinds of name changes. (Id.)
4

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The Program gives special attention to places of worship. The Department has sought to put an informant inside every mosque within a 250-mile radius of New York City and has, in fact, prepared an analytical report on every mosque within 100 miles, including some Plaintiffs. (Id. ¶ 47.) The NYPD’s mosque crawlers have monitored thousands of prayer services in mosques, collecting detailed information about worshippers simply because they are Muslim, without evidence they engaged in any wrongdoing. (Id.) Officers also take photographs and video of license plate numbers and of congregants as they arrive to pray. (Id. ¶ 46.) The Department has even mounted surveillance cameras on light poles, aimed at mosques, for the purpose of round-the-clock surveillance. (Id.) Officers can control the cameras with their computers and use the footage to help identify worshippers. (Id.)
The Department also closely monitors the activities of Muslim Student Associations (“MSAs”) at colleges and universities in New York, New Jersey, Connecticut, and Pennsylvania simply because their membership is Muslim. (Id. ¶ 49.) On a weekly basis, it prepares an MSA Report, including reports on the MSAs at Rutgers New Brunswick and Rutgers Newark. (Id. ¶ 51.) The NYPD even operated a base of operations in an off-campus apartment near Rutgers New Brunswick. (Id. ¶ 56.) The MSA reports include the names of professors, scholars, and students without any evidence that they engaged in wrongdoing. (Id. ¶ 51.) The Program obtains information about the MSAs by placing informants or undercover officers in all or virtually all MSAs, without any indication whatsoever of criminal activity or connection to wrongdoing. (Id. ¶ 49.) NYPD officers also monitor the web sites of Muslim student organizations, troll student chat rooms, and talk to students online. (Id. ¶ 50.) Moreover, undercover NYPD officers sometimes pose as students to attend MSA events. (Id.) One officer,
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for example, went on a rafting trip with an MSA and monitored and recorded how often the student participants on the trip prayed, and that they discussed religious topics. (Id.)
Apart from the message sent by the NYPD’s blanket surveillance of Muslims itself, the Department has made specific statements that cast guilt on all people of that faith, including Plaintiffs, by suggesting that Muslims pose a special threat to public safety. (Id. ¶ 57.) The Newark report analyzes over forty “Locations of Concern,” including several Plaintiffs, defined as, among other things, a “location that individuals may find co-conspirators for illegal actions” and a “location that has demonstrated a significant pattern of illegal activities.” (Id. ¶ 58.) Similarly, the Program’s U.S. – Iran report describes organizations believed to pose serious threats to New York City, such as Hezbollah and Hamas, supporters of those organizations and their locations, followed by a list of “Other Shi’a Locations in the vicinity of NYC.” (Id. ¶ 60.) Those other locations include one Plaintiff mosque and three mosques attended by another Plaintiff, although the report provides no indication of why those locations supposedly pose a threat. (Id.) Finally, despite the failure of the Program to produce any leads related to criminal activity, New York City officials, including the Mayor and Police Commissioner, have defended the Program targeting Muslims by stating that it is focused on “threats,” attempts to document the “likely whereabouts of terrorists,” and is necessary to protect the public’s safety. (Id. ¶¶ 61, 65.)
Plaintiffs continue to suffer from the NYPD’s discriminatory Program in New Jersey because the NYPD continues to conduct broad surveillance of mosques, Muslim businesses, schools and MSAs and the individuals associated with them. (Id. ¶ 56.) As part of the Program, NYPD officers frequently go back to surveillance locations to make sure they have not changed, and updating their information is part of their duties and responsibilities. (Id. ¶ 64.) Indeed,
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New York City officials have made clear that they believe the NYPD’s targeting of Muslims for
surveillance on the basis of their religion is appropriate and will continue. (Id.) Discussing the
surveillance, Mayor Bloomberg has stated publicly, “We’re doing the right thing. We will
continue to do the right thing.” (Id.) Commissioner Kelly has said, “We’re going to continue to
do what we have to do to protect the city.” (Id.) Most recently, an NYPD informant who
conducted surveillance of mosques and MSAs went public and described how officers directed him to spy on Muslims without any reason to believe they were doing anything wrong.1 Katon
Dec. ¶ 4.
ARGUMENT I. THE CITY’S EXPANSIVE PROGRAM TO MAP, TARGET, AND SURVEIL
MUSLIM-AFFILIATED BUSINESSES, ORGANIZATIONS, AND INDIVIDUALS IN NEW JERSEY ON THE SOLE BASIS OF THEIR ISLAMIC RELIGIOUS AFFILIATION IS UNCONSTITUTIONAL. The Plaintiffs in this case – among them an Iraq war veteran, a former Rutgers University
student and member of the MSA, and a teacher and former principal of a Muslim grade-school
for girls – share just one characteristic: their Islamic religious affiliation. That fact alone – and
not an iota of evidence of criminal activity – led the NYPD to map, target and surveil Plaintiffs and countless other New Jersey residents, organizations and businesses.2
1 The facts surrounding the informant who has revealed the NYPD’s practices are offered only in connection with NYC’s motion to dismiss under Rule 12(b)(1), not the Rule 12(b)(6) motion. 2 The City’s targeting and surveilling of Plaintiffs and other New Jersey Muslims because of their religion triggers strict scrutiny. See Bd. of Educ. v. Grumet, 512 U.S. 687, 714 (1994). Strict scrutiny imposes on the City the burden of showing that its religious classifications are “narrowly tailored measures that further compelling governmental interests.” Johnson v. California, 543 U.S. 499, 505 (2005). The City’s motion to dismiss makes no attempt to carry its burden of showing that its expansive, religious based surveillance of New Jersey Muslims meets the exacting strict scrutiny standard, nor could it at the motion-to-dismiss stage, as the application of strict scrutiny typically involves mixed questions of law and fact requiring discovery.
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The City argues that law enforcement surveillance is not “per se” unconstitutional. Def. Br. 4-5. This argument misapprehends Plaintiffs’ claims.3 Plaintiffs assert that the City’s policy
and custom of spying on Muslims exclusively on the basis of their religion – a constitutionally
protected class – violates the First and Fourteenth Amendments. It is no defense, therefore, to
argue that surveillance is not per se unconstitutional. The Third Circuit explicitly rejected the
type of argument the City makes here in Hall v. Pa. State Police, 570 F.2d 86 (3d Cir. 1978), a
case in which the state police directed banks to “[t]ake photos of any black males or females
coming into bank who may look suspicious.” 570 F.2d at 88.
Although it may be assumed that the state may arrange for photographing all suspicious persons entering the bank, Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975), it does not follow that its criterion for selection may be racially based, in the absence of a proven compelling state interest. Id. at 91. Thus, Plaintiffs’ assertion that the City’s surveillance targets them based upon their
religion states a claim under the Equal Protection Clause of the Fourteenth Amendment just as
surely as the plaintiff in Hall stated a claim based upon his race, a different protected class, under
the identical constitutional provision.
The City’s “per se” argument also falls flat with respect to Plaintiffs’ claims under the
two religion clauses of the First Amendment. It may be constitutional for a city to ban the killing
3 The City appears to have incorrectly applied a Fourth Amendment analysis to Plaintiffs’ Equal Protection and First Amendment claims. The NYPD can conduct surveillance in a manner consistent with the Fourth Amendment, while still violating the Constitution’s proscriptions against intentional discrimination under the Equal Protection Clause and, in this case, the First Amendment, by exclusively targeting a particular religious group for that very same surveillance. See Whren v. U.S., 517 U.S. 806, 813 (1996) (holding that, though the Fourth Amendment had not been violated, “the Constitution prohibits selective enforcement of the law based on considerations such as race” and explaining that “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.”)
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of animals when “not for the primary purpose of food consumption,” but it becomes unconstitutional under the Free Exercise Clause of the First Amendment when the target of the ban is a particular religious faith. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 535 (1993) (“No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.”).
Similarly, under the Establishment clause, the Supreme Court has “time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship.” Grumet, 512 U.S. at 714. Thus, a government may display a Christian version Ten Commandments monument on government property without violating the Establishment Clause, if it is part of a broader display such that the setting does not convey endorsement of religion. See Van Orden v. Perry, 545 U.S. 677 (2005). In other contexts, a government’s display of the Ten Commandments will constitute an impermissible endorsement4 of religion. McCreary County v. ACLU, 545 U.S. 844, 881 (2005).
Lastly, in Point I of its brief, NYC refers to a press release issued by the New Jersey Attorney General’s Office indicating it found no evidence that the NYPD’s activities in New Jersey violated New Jersey civil or criminal laws. The portions of the brief referring to this statement, the accompanying paragraph four of opposing counsel’s declaration, and the Exhibit B copy of the press release should be stricken from the record and disregarded by the Court for several reasons. Most importantly, a state official’s opinion about whether the City violated New Jersey civil or criminal law is wholly irrelevant to the claims before this court. Secondly, an opinion on a matter of law is inadmissible and Plaintiffs’ claims do not, in any
4 The Van Orden and McCreary cases involve endorsement of religion under the Establishment Clause; however, that clause also mandates that a government practice cannot inhibit or disapprove of religion. Doe v. Indian River Sch. Dist., 653 F.3d 256, 284 (3d Cir. 2011).
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event, even involve New Jersey law. See Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 218 (3d Cir. 2006) (legal opinion inadmissible). Lastly, the press release the City puts before the Court is extraneous material that cannot be considered on a motion to dismiss under 12(b)(6).5 See Fed. R. Civ. P. 12(d); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. N.J. 1997) (“As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings.”). II. PLAINTIFFS HAVE STATED A CLAIM THAT THE NYPD’S SPYING
PROGRAM TARGETING THEM BASED SOLELY ON THEIR RELIGION VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS. The City argues that Plaintiffs’ Complaint6 does not meet the pleading requirements of Rule 8 as interpreted in Ashcroft v. Iqbal, 556 U.S. 662 (2009), to state a claim for intentional discrimination. Yet the City does not even address, let alone analyze, Plaintiffs’ numerous allegations regarding the City’s overtly discriminatory policy and practice. Instead, the City tosses out a grab bag of hypothetical alternative explanations for its facially discriminatory conduct, as if Plaintiffs’ Complaint were being presented to a jury, rather than evaluated for its mere plausibility. Indeed, the City provocatively justifies its undifferentiated and suspicionless surveillance of a large, diverse religious community on little more than the fact that the attacks of September 11, 2001, were perpetrated by a group of Muslims. The City thus effectively proposes that this Court endorse an exception to basic constitutional norms – and unlimited surveillance or other unlawful government conduct – for New Jersey’s Muslim citizens.
5 Although matters outside the First Amended Complaint may be considered for purposes of the City’s 12(b)(1) motion, the Attorney General’s statement does not relate to the City’s standing argument and, indeed, the brief does not refer to the statement in Point III, the standing section. 6 All references to “the Complaint” are to Plaintiffs’ First Amended Complaint filed Oct. 3, 2012 (Doc. 10).
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Neither the logic of Iqbal nor its standards for evaluating the plausibility of factual allegations at the pleading stage support dismissal of Plaintiffs well-pled complaint or justify the Program’s exclusive reliance on religion. First, the Complaint contains numerous nonconclusory allegations that the City adopted a policy and practice to surveil Muslims exclusively on the basis of their religion. Thus, the Complaint plainly states a plausible claim against the City for intentional discrimination under the First and Fourteenth Amendments pursuant to the pleading standards set forth in Iqbal and Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007).
Second, contrary to the City’s strained suggestion, Iqbal’s holding requiring nonconclusory allegations regarding an individual defendant’s discriminatory state of mind has no bearing here, where the municipal defendant’s discriminatory purpose is actually spelled out in its own documents and could otherwise be easily inferred from the detailed practices alleged. Third, nothing in Iqbal/Twombly’s articulation of Rule 8 pleading standards requires the Plaintiffs to rule out any conceivable nondiscriminatory explanation for the City’s (overtly discriminatory) policy in order to proceed past the motion-to-dismiss stage. The City appears to read the distinct factual context of Iqbal to suggest that the September 11th attacks and nothing more justifies the adoption of policies and practices that overtly discriminate against Muslims. Such a radical application of Iqbal has no support in the law and, if accepted, would undermine decades of elementary civil rights precedent.
A. The First Amended Complaint Easily Satisfies the Pleading Standard of Rule 8 as Interpreted by Iqbal and Twombly.
The Federal Rules require only “a short and plain statement” of the grounds for the court’s jurisdiction and the pleader’s entitlement to relief. Fed. R. Civ. P. 8. In evaluating whether plaintiffs have failed to state a claim under Rule 12(b)(6), the court must assume the veracity of well-pled factual allegations, then determine whether they plausibly give rise to
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entitlement to relief. Iqbal, 556 U.S. at 679. Courts look for “‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary elements” of a claim for relief. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d. Cir. 2009).
The Third Circuit has set forth a three-step process for evaluating the sufficiency of a complaint post-Iqbal: “First, we outline the elements a plaintiff must plead to state a claim for relief. Next we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. Finally, we look for well-pled factual allegations, assume their veracity, and then ‘determine whether they plausibly give rise to an entitlement to relief.’” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)7 (quoting Iqbal, 556 U.S. at 679); see also Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011).
Applying the first of Bistrian’s three-step process, the elements of Plaintiffs’ claims are straightforward. In order to state a claim for violation of the Equal Protection Clause, Plaintiffs must allege that the City purposefully classified them on account of their religion. See Washington v. Davis, 426 U.S. 229, 240 (1976). Similarly, to state a claim under the First Amendment’s Free Exercise Clause, a plaintiff must show that a government policy or practice purposefully discriminates on the basis of religion. Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165 (3d Cir. 2002) (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 542 (1993)). A claim under the Establishment Clause requires a showing that the policy or practice symbolically signals disapproval of a particular religion. Doe v. Indian
7 The City cites Bistrian as an example of a dismissal of a defendant pursuant to Iqbal, City Brief at 5, but fails to acknowledge that the case dismissed claims against only one of twenty-seven defendants, finding the claims against that individual too “speculative.” Bistrian’s claims against the other twenty-six defendants survived, because they were based on well-pled non-conclusory allegations. See Bistrian, 696 F.3d at 377.
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River Sch. Dist., 653 F.3d 256, 284 (3d Cir. 2011) (citing Busch v. Marple Newtown Sch. Dist.,
567 F.3d 89, 100 (3d. Cir. 2009). Notably, none of Plaintiffs’ claims include an element of
animus or malice toward Muslims. The purposeful classification based on faith is the constitutional violation, regardless of the motive underlying the classification.8
Following Bistrian’s second step, the Complaint does not rely on any conclusory
allegations that need to be “peeled away.” 696 F.3d at 365. The City’s few characterizations of
Plaintiffs’ allegations as conclusory are inconsequential. Def Br. at 4, 7, 16. Indeed, the
pleading provides overwhelming specific allegations of how the NYPD implements its spying
program to target Muslims and how Plaintiffs in particular have fallen victim to it – which leads
to the third step under Bistrian.
Lastly, assuming the truth of Plaintiff’s well-pled allegations, the Court determines
whether they plausibly give rise to an entitlement to relief. Plaintiffs describe in abundant detail
the NYPD’s explicit, formalized policy and practice of surveilling Muslims in New Jersey
precisely because of their religion and without any individualized suspicion of criminal activity.
See First. Am. Compl. ¶¶ 36-65. For example, the complaint alleges that the NYPD subjects lead
plaintiff Hassan, a U.S. citizen and a decorated veteran of the war in Iraq, to unlawful
surveillance because of his religion by targeting his and other specifically named New Jersey
8 A plaintiff need only allege that a defendant had a discriminatory purpose, which can be shown, as here, by policies and practices that on their face classify on the basis of religion. See Washington v. Davis, 426 U.S. at 239-40. Critically, a plaintiff need not show that the alleged classification was motivated by malice to state a claim under Equal Protection principles. See Powers v. Ohio, 499 U.S. 400, 410 (1991) (malice is not required to find discriminatory purpose because the classification itself causes “stigma or dishonor” and “contravenes equal protection principles.”). The same is true for claims under the Free Exercise and the Establishment Clauses. See Shrum v. City of Coweta, Oklahoma, 449 F.3d 1132, 1145 (10th Cir. 2006) (“the Free Exercise Clause is not confined to actions based on animus”); Doe v. Indian River Sch., 653 F.3d at 284 (3d Cir. 2011) (under Establishment Clause, “[R]egardless of its purpose,” the government practice “cannot symbolically endorse or disapprove of religion.”) (internal quotation omitted and emphasis added).
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mosques. Id. ¶¶ 10-12. The NYPD also targets the Rutgers University chapter of the Muslim Student Association and its student members because of their religious affiliation through the preparation of weekly MSA reports. Id. ¶¶ 23-26, 30. The NYPD even spied on a private gradeschool attended by African American Muslim girls by photographing it, recording the address, and noting its ethnic composition. Id. ¶¶ 31-34.
Perhaps most importantly, the Complaint provides detailed description of the methods the NYPD uses to spy on Muslims, including Plaintiffs. The pleading thoroughly describes, for example, how the Department takes photos and videos of mosques, congregants, and congregants’ license plates, plants informants and undercover officers in mosques and Muslim businesses (Id. ¶¶ 39, 41, 46), prepares reports and maps of Muslim communities (id. ¶¶ 5, 12, 37, 47, 53, 58), and has officers pose as students to monitor how often MSA members pray (id. ¶ 50). The Complaint further specifies that when monitoring ethnic communities, the NYPD focuses exclusively on their Muslim segments, excluding from surveillance other religious groups such as Egyptians who are Coptic Christians, Syrian Jews, and Catholic and Orthodox Christian Albanians. (Id. ¶¶ 42-44.)
Thus, the specificity of Plaintiffs’ factual allegations, even when stripped of any conclusory assertions, are more than adequate to plausibly state a claim upon which relief may be granted. Indeed, such specific allegations, along with “smoking gun” evidence from NYPD documents of the purposeful classification of Muslims based solely on religion, are the antithesis of the conclusory, formulaic allegations at issue in Iqbal.
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B. When a Municipal Defendant Adopts An Overtly Discriminatory Policy and Custom, Iqbal’s Holding on Individual Vicarious Liability Does Not Apply.
Plaintiffs’ allegations are directed exclusively at the City of New York pursuant to 42 U.S.C. § 1983 and Monell v. New York City Dept. of Social Services, 436 U.S. 658, 659 (1978). See First. Am. Compl. ¶¶ 35, 66-69.
To show liability under §1983 and Monell at the pleading stage, a plaintiff need allege only that the defendant’s actions: “(1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.” Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002). Thus, “when execution of the government’s policy or custom . . . inflicts the injury . . . the government as an entity is responsible.” Monell, 436 U.S. at 694. (emphasis added). Plaintiffs’ allegations regarding the City’s policy and practice of discriminatory surveillance satisfies this standard for municipal liability. See First. Am. Compl. ¶¶ 35-65.
Placing great weight on the Supreme Court’s ruling that the Iqbal plaintiffs failed to adequately plead that individual supervisory defendants acted with discriminatory intent, the City suggests that, therefore, Plaintiffs must do more than allege the existence of an overtly discriminatory policy in a municipal liability case such as this. The City is confused. To begin, the argument proceeds on the false premise that Iqbal was brought against an institutional defendant and thus is somehow akin to the municipal liability claim presented here. See Def Br. at 6 (incorrectly stating that Iqbal concerned “the purpose of the FBI’s actions”) (emphasis added). In fact, Iqbal involved only damages claims against Attorney General John Ashcroft and FBI Director Robert Mueller in their individual capacities pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). See Iqbal, 556 U.S. at 668.
As such, the cases are in a fundamentally different posture and require entirely different allegations. In Iqbal, the plaintiff sought to hold these high-level officials responsible for a
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policy of holding “high interest” detainees in harsh conditions “on account of his religion, race and/or national origin.” 556 U.S. at 666. The Court explained that, consistent with the law governing individual supervisory liability for religious or racial discrimination, Iqbal had to do more than allege a discriminatory impact against Muslims and Arabs; he had to demonstrate that Ashcroft and Mueller themselves harbored a discriminatory purpose in promulgating their policies. Id. at 676-77 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Yet, Iqbal did “not show, or even intimate that [Ashcroft and Mueller] purposefully housed detainees in [harsh conditions]” or that they had “labeled him as a person ‘of high interest’ for impermissible reasons.” Id. at 683 (emphasis added). With no facts other than Ashcroft’s and Mueller’s roles as high-level supervisors to support the plaintiff’s “threadbare” and “formulaic” legal conclusions, and armed with an “obvious alternative explanation” for the detentions – i.e., a nondiscriminatory intent to detain illegally-present, “high-interest” aliens for valid law enforcement purposes – the Court did not find “plausible” the “purposeful, invidious discrimination respondent asks us to infer” against the individual defendants. Id. at 682.
In stark contrast to Iqbal, here Plaintiffs seek to hold a municipality liable for an unlawful policy and practice specifically promulgated by the City and where Plaintiffs point to a smoking gun – the City’s own documents – to allege discriminatory purpose.9 This is all that is required to state a claim for Monell liability. See Nykiel v. Borough of Sharpsburg Police Dep’t, 778 F.
9 The stray cases the City cites – which were brought against individuals and not governmental entities – are not to the contrary. For example, in Argueta, plaintiffs alleged that Immigration and Customs Enforcement (ICE) as well as individual agents and supervisors were liable for unlawful, warrantless raids of their homes. The Third Circuit held only that Plaintiffs “failed to allege a plausible claim to relief on the basis of [high-level] supervisors’ ‘knowledge and acquiescence,’” in their subordinates’ misconduct, and that there were insufficient allegations to make the required showing that the individual defendants directed the illegal conduct. 643 F.3d at 70. The Court did not address – nor did defendants even attempt to dismiss – claims against ICE as an institutional government defendant; nor could it suggest that an institutional policy of wrongdoing would be insufficient to state a claim.
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Supp. 2d 573, 586 (W.D. Pa. 2011) (“When an action against a municipality is based on Section 1983 . . . , although there can be no liability for the municipality based on vicarious liability, it can be held responsible in and of itself when injury is caused by its adopted policy or custom.”) (citing Monell, 436 U.S. at 659)); Olivieri v. County of Bucks, U.S. App. 2012 LEXIS 22098 (3d Cir. Oct. 24, 2012); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).
In sum, unlike in Iqbal, here there is no need to infer an individual’s discriminatory state of mind. The City’s policy and custom targets Muslims and only Muslims because of their religious affiliation; its discriminatory purpose is readily apparent. Plaintiffs’ allegations concerning the City’s discriminatory intent are therefore plausible as a matter of law. See Washington v. Davis, 426 U.S. at 240-41 (1976).
C. The Iqbal/Twombly Standard Does Not Require Plaintiffs To Rule Out Any Alternative Explanation For the City’s Overt Discrimination In Order To Survive A Motion To Dismiss.
Building on its profound misreading of Iqbal, the City argues that, at the pleading stage, a court must dismiss well-pled claims of a municipality’s overtly discriminatory policy if defendants can suggest any conceivable alternative excuse for discrimination. This is decidedly not the law.
Iqbal and Twombly expressly instruct that pleading “plausibility” does not require demonstrating that a claim is probable. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556. The “plausibility” standard certainly does not permit a court to choose which competing inference is more likely to be true – as that is an evidentiary standard only implicated at trial and after discovery. See Fowler, 578 F.3d at 213 (“a well-pled complaint may proceed even if it strikes a savvy judge that actual proof of those facts alleged is improbable and that a recovery is very remote and unlikely”) (internal quotations omitted). Because Plaintiffs have made detailed factual and non-conclusory allegations directly attributing misconduct to defendants, this court
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need not consider alternative, much less hypothetical, explanations. In the racial or religious discrimination context, district courts in the Third Circuit “do[] not require plaintiffs . . . to include all of the evidence that suggests that the conduct was a result of racially discriminatory intentions rather than the byproduct of some legitimate purpose. . . . Instead, they must simply allege enough facts to nudge the claim into the realm of the plausible.” Major Tours, Inc. v. Colorel, 720 F. Supp. 2d 587, 606 (D.N.J. 2010) (internal citations omitted). This ends the inquiry.
In any event, the City does not contest Plaintiffs’ allegations that they were targeted and surveilled because of their religion, effectively conceding that the allegations are well-pled. The City’s silence is unsurprising in light of the fact that virtually all of the Plaintiffs’ allegations are based on official NYPD documents. Without a nondiscriminatory explanation for their surveillance of the Plaintiffs, the City argues, in effect, that because Muslim individuals executed the attacks of September 11th, the City may conduct undifferentiated, blunderbuss surveillance of any Muslim, anywhere.
For example, linking all New Jersey Muslims to the acts of a group of fanatics, the City of New York actually makes this astonishing claim: “Plaintiffs allege that the Program was initiated soon after the September 11th terrorist attack. Thus, the initiation of the program was more likely in response to the terrorist threat.” Def. Br. at 7 (emphasis added). The City also argues, in essence, that because Muslim individuals protested Danish cartoons in Nigeria, Italy and Pakistan,10 the City may target mosques in Somerset, Muslim-affiliated campus
10 The City’s brief refers to a “widely publicized incident that caused strong reactions,” based upon Exhibit C to the Farrell Declaration, which is a composite of media reports. Def. Br. at 8. That exhibit, ¶ 5 of the Farrell Declaration, and the related references in the brief are improper in connection with a 12(b)(6) motion and should be stricken from the record and disregarded by the Court.
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organizations in New Brunswick, and Muslim-owned businesses and schools in Newark. Far from defeating Plaintiffs’ claims of discriminatory targeting, the City’s position makes them all the more plausible. See Major Tours, 720 F. Supp. 2d at 606 (“There is no obvious and lawful purpose that explains, for example, why inspectors would target casinos frequented by African Americans for bus safety inspections”); Gordon v. City of Moreno Valley, 687 F. Supp. 2d 930, 951-53 (C.D. Cal. 2009) (African American barbershops targeted for code-enforcement plausibly pled equal protection claims against municipality).
To be sure, Iqbal itself provides absolutely no support for the City’s suggestion that 9/11 justifies otherwise discriminatory policing. In Iqbal, the Supreme Court was at pains to point out that defendants had not targeted Muslims as a group, but only individuals who were illegally present in the United States and who had been classified as “high-interest” with “potential connections to those who committed terrorist acts” – law-enforcement characteristics shared by none of the Plaintiffs here. Iqbal, 556 U.S. at 682. In fact, the Court specifically noted that Iqbal had not alleged that he was classified as “high-interest because of race, religion or national origin.” Id. More recently, in Turkmen et al. v. Ashcroft, No. 02 CV 2307, 2013 U.S. Dist. LEXIS 6042, at *20 (S.D.N.Y. Jan. 15, 2013) – a case which arises out of the same post-9/11 arrests and confinement of unauthorized immigrant Arabs and Muslims that ensnared Iqbal – the court held that detainees alleging grossly punitive conditions of confinement on account of their Muslim beliefs pled “a plausible equal protection claim” against a responsible warden and detention officers. Id. at 68. Judge Gleeson pointed not only to allegations of egregious mistreatment and “derogatory anti-Muslim comments,” but also to allegations that the detainees were placed in segregated housing “without individualized determinations of dangerousness.” Id. at 67-68. Turkmen thus makes abundantly clear that even unauthorized immigrants arrested
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pursuant to investigations directly related to the September 11th attacks cannot be targeted for punishment or discrimination on the basis of their actual or perceived religious beliefs.
At bottom, the City seeks to create an exception – for Muslims – to decades of constitutional law prohibitions on protected class-based policing. The argument is as dangerous as it is novel. Save for some regrettable historical examples, see Korematsu v. United States, 323 U.S. 214, 233 (1944), race and religion have never been considered a valid proxy for dangerousness or criminality. See United States v. Brignoni-Ponce, 422 U.S. 873, 885-87 (1975) (the appearance of Mexican ancestry “does not justify stopping all Mexican-Americans to ask if they are aliens”).
No court should accept what is little more than religious or racial stereotype as a basis for government action. See Powers, 499 U.S. at 410 (“We may not accept as a defense to racial discrimination the very stereotype the law condemns.”); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The Constitution cannot control [racial] prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly give them effect.”).11 To do so would cross the line from ratifying legitimate law enforcement practices to endorsing outright religious discrimination, pulling the court toward “the ugly abyss of racism.” Korematsu v. United States, 332 U.S. at 233 (1944) (Murphy, J., dissenting).
11 Similarly circular attempts to justify discriminatory classifications on the basis of illegitimate stereotypes have failed. See, e.g., Oyama et al. v. California, 332 U.S. 633, 672 (1948) (Black, J., concurring) (equal protection compels rejecting the idea that “some racial characteristic, common to all Japanese aliens . . . makes them unfit to own or use agricultural land in California”); Craig et al. v. Boren, 429 U.S. 190, 203 n.14, 203-04 (1976) (rejecting use of “social stereotypes” of “‘reckless’ young men” to justify establishing “gender-based traffic safety laws” and drinking ages).
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III. PLAINTIFFS HAVE ARTICLE III STANDING BECAUSE THEY EACH HAVE SUFFERED AN INJURY IN FACT THAT IS “FAIRLY TRACEABLE” TO DEFENDANT’S SPYING AND IT IS LIKELY THAT THE INJURIES WILL BE REDRESSED BY A FAVORABLE DECISION.
The parties agree that the starting point for the analysis of Plaintiffs’ standing is Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992). See Def. Br. at 9. In order to establish the
“constitutional minimum 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) (alterations in original). As discussed fully
below, each of the eleven Plaintiffs alleges (1) an injury in fact (2) fairly traceable to the City
and not the result of an independent action of a third party (3) that will be redressed by a
favorable decision.12
12 Because Defendant’s Rule 12(b)(1) motion to dismiss for lack of standing primarily “contest[s] the sufficiency of the pleadings,” Turicentro v. Am. Airlines, 303 F.3d 293, 300 n.4 (3d Cir. 2002), and “raises no challenge to the facts alleged in the pleadings,” Gould Elecs., Inc. v. United States, 220 F.3d 169, 177 (3d Cit. 2000), “the [C]ourt must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Id. Defendant has submitted a factual declaration with its motion to dismiss, but Defendant relies on only one paragraph of that declaration to contest standing, and only in support of the particular argument that Plaintiffs’ injuries are not “fairly traceable” to the Defendant, but rather to the Associated Press. See Farrell Decl. ¶ 3 (discussing AP’s publication of the reports discussed in the Complaint). Plaintiffs have submitted their own factual declaration solely to respond to this narrow point. See Katon Decl. ¶ 2. That the parties have introduced evidence on this particular point does not transform the entire Rule 12(b)(1) motion from a “facial” challenge into a “factual” one. See Gould Elecs., 220 F.3d at 177 (explaining different standards applicable to each type of challenge). Instead, the Court must continue to accept all allegations in the First Amended Complaint (“FAC”) in the light
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NYC’s standing analysis focuses on cases involving claims under the Free Speech Clause of the First Amendment, which is not among the three constitutional claims asserted by Plaintiffs. Def. Br. at 13-15. Notably, standing “often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500 (1975); Common Cause v. Pennsylvania, 558 F.3d 249, 262 (3d Cir. 2009) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Analysis of standing will depend upon “whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” Warth, 422 U.S. at 500. Thus, a proper analysis of Plaintiffs’ standing considers how courts have analyzed standing under the constitutional provisions upon which the Complaint relies: the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise and Establishment Clauses of the First Amendment.13 See infra § III.A.2-4. Regardless, Plaintiffs satisfy the free speech cases upon which NYC relies so heavily. See infra § III.A.1.
A. Plaintiffs Have Suffered Injuries In Fact. 1. Law enforcement surveillance can and in this case does give rise to injury in fact sufficient for Article III standing.
The Third Circuit has recognized that injuries resulting from law enforcement surveillance conducted in public spaces can confer standing. See Anderson v. Davila, 125 F.3d 148, 160-61 (3d Cir. 1997) (plaintiff suffered cognizable harm resulting from law enforcement
most favorable to the Plaintiff, although it may supplement its consideration of the FAC with the factual evidence introduced on the narrow point in question. See id. (district court “properly accepted allegations of complaint as true” as to all issues except for the one issue with respect to which the defendant “challenge[d] the truthfulness of . . . the allegations in the Complaint”). 13 For example, numerous cases hold that a mere “identifiable trifle” is sufficient injury to confer standing. See, e.g., Doe v. County of Montgomery, 41 F.3d 1156, 1159 (7th Cir. 1994); Saladin v. Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987); Jones v. Butz, 374 F. Supp. 1284, 1288 (S.D.N.Y. 1974); see also Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d 164, 177 (3d Cir. Del. 2001) (citing U.S. v. Students Challenging Regulatory Action Procedures, 412 U.S. 669, 689 n.14 (1973)).
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surveillance outside his home); Philadelphia Yearly Meeting of Religious Soc’y of Friends v. Tate, 519 F.2d 1335, 1338-39 (3d Cir. 1975) (chilling effect on First Amendment rights resulting from protest surveillance confers standing when general availability of surveillance materials “could interfere with the job opportunities, careers or travel rights” of plaintiffs and could “dissuade some individuals from becoming members” of organizational plaintiffs); see also Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 522-23 (9th Cir. 1989) (plaintiff churches sustained injury to challenge government surveillance when they made allegations of a “decrease in congregants’ participation in worship services and other religious activities, of the cancellation of a Bible study class, of the diversion of clergy energy from pastoral duties, and of congregants’ reluctance to seek pastoral counseling.”). The variety of types of injuries that the NYPD surveillance has caused Plaintiffs, as set forth in the Complaint and highlighted below, belie the City’s argument that Plaintiffs’ injuries amount to no more than a “subjective chill,” which courts have found insufficient. See Def. Br. at 13-14 (arguing “subjective chill” under the Laird line of cases).
The Supreme Court did hold in Laird v. Tatum, 408 U.S. 1 (1972), that mere “[a]llegations of a subjective ‘chill’ [of the exercise of First Amendment rights] are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Id. at 13-14. However, that case does not stand for the proposition that surveillance may never be challenged as a constitutional violation, but, instead, it narrowly held that the respondents there lacked standing because they did not show that they had sustained or were immediately in danger of sustaining an injury as a result of the surveillance. Id.
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Here, Plaintiffs do not allege mere “subjective chill.” Plaintiffs Hassan, Mohammed, Doe,14 and Abdur-Rahim allege that the NYPD surveillance of them has caused cognizable harm to future educational and employment prospects. First Am. Compl. ¶¶ 13, 25, 27, 29, 32. Plaintiffs All Body Shop Inside & Outside and Unity Beef Sausage Company assert that the NYPD’s surveillance of their businesses has resulted in a decreased number of customers, and the Council of Imams in New Jersey (“CINJ”)15 alleges that the NYPD surveillance of two of its member mosques has led to a decrease in attendance and in contributions (although they are not seeking compensatory damages). Id. ¶¶ 15, 19, 21. Plaintiffs Abdur-Rahim and Abdullah claim compensatory damages due to the loss of value to their home, which appears in the NYPD’s Newark report.16 Id. ¶¶ 31-34. Each of these allegations reflects “specific present objective harm or a threat of specific future harm,” and thus are injuries in fact. Laird, 408 U.S. at 13-14. In particular, allegations of such economic injuries are sufficiently concrete and particularized to establish standing. Cf. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 190-91 (3d Cir. 2006) (holding that plaintiffs had standing because their alleged injuries to property values were constitutionally cognizable, concrete, and particularized); Growth Horizons, Inc. v. Delaware
14 Plaintiff Jane Doe has filed under pseudonym. First Am. Compl. ¶ 26. Defendant has agreed that the parties will address this issue, if necessary, after the Court rules on the pending motion to dismiss. 15 Plaintiffs Council of Imams in New Jersey and MSA National assert associational standing under Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977). Each can demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” 432 U.S. at 343. See First Am. Compl. ¶¶ 14-17. 16 Cf. Baugh Constr. Co. v. Mission Ins. Co., 836 F.2d 1164, 1171 (9th Cir. 1988) (diminution in value claim based upon negative publicity regardless of whether property has been sold); Restatement (Second) of Torts § 928 (1977) (plaintiff entitled to difference between value of property before the tort versus after).
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County, Pa., 983 F.2d 1277, 1281 (3d Cir. 1993) (noting that a district court has jurisdiction so long as plaintiff has standing to make a non-frivolous claim).
Third Circuit jurisprudence makes clear that a plaintiff who has alleged injury of just the sort complained of by Plaintiffs possesses Article III standing to challenge unlawful surveillance. See Anderson, 125 F.3d 148; Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975); Philadelphia Yearly, 519 F.2d 1335. In Anderson, the Court of Appeals held that an individual surveilled by police in retaliation for engaging in First-Amendment protected activity suffered a cognizable harm. 125 F.3d at 160-61. The Court distinguished the facts in Anderson from those in Laird because Anderson alleged a harm that was “more specific and less speculative” than had the Laird plaintiffs, who had cited merely a “vague fear” that the Army might misuse the information contained in surveillance reports in the future and “were unable to articulate with any specificity the harm that they had suffered or might suffer in the future from the Army’s surveillance.” Id. at 160. Like the plaintiff in Anderson, Plaintiffs here have alleged specific harms, discussed herein, that are not merely speculative.
In Philadelphia Yearly Meeting of Religious Soc’y of Friends, the plaintiffs alleged that information collected during an investigation conducted by the defendants, that was available to other individuals, governmental agencies, and the media “threatened injury to plaintiffs by way of a chilling of their rights of freedom of speech and associational privacy.” Philadelphia Yearly, 519 F.2d at 1338. These allegations, the Third Circuit held, gave rise to standing because the “general availability of such materials and lists could interfere with the job opportunities, careers or travel rights of the individual plaintiffs” and the availability of the information “may well dissuade some individuals from becoming members [of the plaintiff organization], or may persuade others to resign their membership.” Id. Likewise, the Third Circuit, in Paton, held that
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a student had suffered a cognizable injury and had standing to seek expungement of records where the FBI surveilled the plaintiff and maintained an investigative file about her that could damage her future employment prospects. Paton, 524 F.2d. at 868; see also Meese v. Keene, 481 U.S. 465, 473-74 (1987) (holding that appellee established the threat of cognizable injury because he alleged that, if he exhibited the films characterized as political propaganda, “his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired.” (internal quotation marks omitted)).
2. Plaintiffs have been injured by being targeted on the basis of membership in a suspect class and on the basis of classification of a fundamental right, both of which are injuries in fact pursuant to the Equal Protection Clause.
The Supreme Court has made clear that, under the Equal Protection Clause, the “denial of equal treatment,” is an “injury in fact.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993). And a classification based on religion, such as the NYPD spying program targeting Muslims, certainly gives rise to standing. See generally Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 (2007) (“[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)) (internal quotation marks omitted)); Burlington N. R.R. v. Ford, 504 U.S. 648, 651 (1992) (noting that classifying on the basis of religion is suspect); Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 885 (1985) (noting that a classification drawn upon religion is inherently suspect). That is, that Plaintiffs were subjected to surveillance, and its resulting harms, solely on the basis of their religious identity is an injury in fact sufficient to establish Article III standing. Cf. Northeastern Fla. Chapter, Associated Gen. Contractors of America, 508 U.S. at 666 (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is
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for members of another group . . . [t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier . . . .”). The stigmatization of all Plaintiffs due to the surveillance solely on the basis of their religious identity is also an injury in fact sufficient to establish Plaintiffs’ Article III standing. See Allen v. Wright, 468 U.S. 737, 755 (1984) (noting that stigma caused by discrimination is sufficient to support standing for “persons who are personally denied equal treatment” (quoting Heckler v. Mathews, 465 U.S. 728, 739-40 (1984)) (internal quotation marks omitted)); Heckler, 465 U.S. at 739-40 (“as we have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group” (internal citation omitted)); cf. Northeastern Fla. Chapter, Associated Gen. Contractors of America, 508 U.S. at 666 (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group . . . [t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier . . . .”). Accordingly, the violations of the Equal Protection Clause set forth in the Complaint provide Plaintiffs with standing to challenge the surveillance here at issue.
3. All Plaintiffs have been personally subjected to a policy disfavoring their religion and, in many cases, have altered their behavior as a result, causing injury in fact pursuant to Establishment Clause jurisprudence.
Plaintiffs have standing under the Establishment Clause to challenge any government practice, including the surveillance program here at issue, which singles out their religion for disfavor. The Supreme Court has made it clear that “the requirements for standing to challenge state action under the Establishment Clause . . . do not include proof that particular religious
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freedoms are infringed.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 n.9 (1963) (citing McGowan v. Maryland, 366 U.S. 420, 429-30 (1961)). Instead, it is sufficient for plaintiffs to be personally and “directly affected” by state conduct that favors or disfavors a religion in violation of the Establishment Clause, without any evidence of tangible harm. Id. Thus, for example, in Schempp, schoolchildren and parents had standing to bring an Establishment Clause challenge simply because the children were exposed to Bible verses required by state law to be read at the public schools they attended. Id.
The doctrine that an individual has standing when exposed to state conduct that favors or disfavors a particular religion remains a vital part of Establishment Clause jurisprudence, and is perhaps most clearly demonstrated in cases brought by plaintiffs challenging religious displays or performances in public settings. See, e.g., McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) (assuming sub silentio that membership organization had standing to bring challenge to religious displays in public buildings absent any apparent showing of tangible harm); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (same); Wallace v. Jaffree, 472 U.S. 38 (1985) (father and his children, who attended local public schools, had standing to challenge religious prayer in those schools); Doe v. Indian River Sch. Dist., 653 F.3d 256, 259-60 & 261 n.2 (3d Cir. 2011) ((parents, and their children who attended schools in the district, had standing to challenge school district board’s policy of opening its meetings with a prayer ). In most circuits, plaintiffs have standing to bring such a challenge if they merely encounter the religious display in person. See Suhre v. Haywood County, 131 F.3d 1083, 1087 (4th Cir. 1997) (reviewing circuit law and holding that “unwelcome personal contact with a state-sponsored religious display” is sufficient to confer standing); Murray v. Austin, 947 F.2d 147, 151-52 (5th Cir. 1991); Kaplan v. City of Burlington, 891 F.2d 1024, 1027 (2d Cir. 1989); Foremaster v. St.
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George, 882 F.2d 1485, 1490-91 (10th Cir. 1989); Saladin v. Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (“a non-economic injury which results from a party’s being subjected to unwelcome religious statements can support a standing claim”); Hawley v. Cleveland, 773 F.2d 736, 740 (6th Cir. 1985). A minority of courts require, in addition, that a Plaintiff must have modified his or her behavior to avoid or otherwise mitigate the state conduct that violates the principle of neutrality toward religion. See, e.g., Freedom from Religion Found. v. Zielke, 845 F.2d 1463, 1467-68 (7th Cir. 1988) (no standing where plaintiffs “concede that they did not alter their behavior in any manner as a result of the Ten Commandments monument”).
While the Third Circuit has not decided whether merely encountering a display is sufficient on its own, ACLU-NJ ex rel. Miller v. Twp. of Wall, 246 F.3d 258, 265-66 (3d Cir. 2001), it is clear, in any event, that the injury in an Establishment Clause case need not be economic, but is essentially a spiritual one, and that a plaintiff suffers this injury simply as a result of being subjected to a state practice that singles out a religion for favor or disfavor. See Suhre, 131 F.3d at 1086 (“[T]he standing inquiry in Establishment Clause cases has been tailored to reflect the kind of injuries Establishment Clause plaintiffs are likely to suffer. . . . [T]he Establishment Clause Plaintiff is not likely to suffer physical injury or pecuniary loss. Rather ‘the spiritual, value-laden beliefs of the plaintiffs’ are often most directly affected by an alleged establishment of religion.” (quoting ACLU v. Rabun County, 698 F.2d 1098, 1102 (11th Cir. 1983))).
In the present case, each individual Plaintiff has personally been subject to the NYPD’s surveillance targeting New Jersey Muslims on the basis of religion alone – state conduct that clearly singles out a religion for disfavor in violation of the Establishment Clause. Most have
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also changed their behavior in some way in order to avoid further NYPD surveillance or to

mitigate the negative consequences thereof. Specifically:

•

Plaintiff Hassan has attended a number of mosques, each of which has been

targeted for surveillance by the NYPD. First. Am. Compl. ¶ 12. He has

decreased his attendance at these mosques as a result. Id. ¶ 13.

•

Plaintiff Muslim Students Association of the U.S. & Canada, Inc. includes two

member chapters – at Rutgers Newark and Rutgers New Brunswick – that were

specifically targeted for surveillance. Id. ¶ 17. Plaintiffs Mohammed and Doe,

are members of the Rutgers New Brunswick MSA chapter and are therefore also

personally subjected to the NYPD’s surveillance. Id. ¶¶ 24-29. Each of these

individual Plaintiffs has responded to the NYPD’s discriminatory surveillance by

altering his or her behavior. Thus, Mr. Mohamed now avoids discussing his faith

or MSA attendance in public and avoids praying in places where non-Muslims

might see him. Id. ¶ 25. Ms. Doe no longer discusses religious topics at MSA

meetings because she fears those comments may be taken out of context by

NYPD officers engaging in discriminatory surveillance. Id. ¶ 27.

•

Plaintiff CINJ is a membership organization of 12 mosques, largely in the Newark

area, at least two of which were subject to NYPD surveillance. Id. ¶ 14.

Similarly, Plaintiff Muslim Foundation, Inc. owns and operates a mosque in

Somerset, New Jersey that was targeted for surveillance. Id. ¶ 22. The CINJ

mosques have suffered decreased attendance and contributions as a result of the

surveillance. Id. ¶ 15. And the MFI mosque has changed its religious services

and programming as a result of the surveillance, including by deciding not to

invite particular individuals to provide religious or spiritual guidance. Id. ¶ 23.

Plaintiffs thus amply demonstrate that they have suffered a “personal injury” as a result

of the NYPD surveillance program, and are not simply the subject of an undifferentiated spiritual

objection indistinguishable from that of a member of the general population. They therefore

have standing to bring their Establishment Clause challenge to the NYPD’s practices, which

single them out as Muslims for disfavor.

4. Plaintiffs have been targeted by a practice that explicitly discriminates on the basis of religion and Plaintiff mosques have experienced a reduction in attendance and have been compelled to change their religious services and programming, injuries in fact to the right to free exercise of religion.

All the Plaintiffs have standing to bring a Free Exercise Challenge insofar as they have

been the targets of a policies and practices of the NYPD that explicitly target Muslims based

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solely on faith. Those policies and practices are not, therefore, neutral with respect to religion. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534-35 (1993) (official government action that targets religious conduct for distinctive treatment violates Free Exercise Clause). Plaintiffs here, who have been the direct targets of the NYPD’s facially discriminatory policy, have standing, just like the plaintiffs in other cases in which courts have considered the constitutionality of similarly discriminatory government conduct. Cf. Church of Lukumi Babalu Ay, 508 U.S. at 535-36, 547 (voiding an ordinance that was enacted contrary to the Free Exercise of Religion because religious practice was the only conduct subject to the ordinance); Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (“[t]he government may not . . . impose special disabilities on the basis of religious views or religious status”); McDaniel v. Paty, 435 U.S. 618 (1978) (holding that provision of law that targeted clergy because of their religious status violated the First Amendment right to the Free Exercise of Religion). Moreover, many of the Plaintiffs have not simply had their religious observance targeted for discrimination, but also have been compelled to curtail or modify their religious practice as a result of the NYPD’s discriminatory surveillance. See First Am. Compl. ¶¶ 13, 25, 27, 30.
In addition, member mosques of plaintiff CINJ that are included in the NYPD’s Newark report, Masjid al-Haqq and Masjid Ali K. Muslim, have suffered a classic First Amendment injury because their attendance has dropped as a result of the surveillance. Id. ¶ 15. Further, the MFI mosque has been compelled to significantly alter the content of its religious services and programming, as a direct result of the surveillance. Id. ¶ 23. Decreased mosque attendance and effects on religious programming are clearly cognizable injuries for purposes of standing: “Churches, as organizations, suffer a cognizable injury when assertedly illegal government conduct deters their adherents from freely participating in religious activities protected by the
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First Amendment.” Presbyterian Church, 870 F.2d at 522-23 (holding that a church had standing to challenge government surveillance where plaintiffs made allegations of a “decrease in congregants’ participation in worship services and other religious activities, of the cancellation of a Bible study class, of the diversion of clergy energy from pastoral duties, and of congregants’ reluctance to seek pastoral counseling.”); see also Socialist Workers Party v. Attorney General, 419 U.S. 1314, 1319 (1974) (Marshall, J., Circuit Justice) (government surveillance “will have the concrete effects of dissuading some [Young Socialist Alliance] delegates from participating actively in the convention and leading to possible loss of employment for those who are identified as being in attendance. . . . The specificity of the injury claimed by the applicants is sufficient, under Laird, to satisfy the requirements of Art. III.”).17 Plaintiffs therefore have Article III standing on these additional bases as well.
B. Plaintiffs’ injuries are “fairly traceable” to the NYPD’s discriminatory practices and are not the result of an independent action of a third party.
Plaintiffs’ injuries, just described, are all “fairly traceable” to NYC’s facially discriminatory surveillance policy and practice, which senior City officials have reaffirmed, endorsed, and promoted since they were disclosed by the AP. First Am. Compl. ¶ 64. The NYPD’s practice of targeting Muslims has also been made public by one of its informants. Katon Dec. ¶ 4. NYC argues, however, that “it is the disclosure of the documents by the Associated Press in unredacted form which left in identifying information – not the NYPD’s actions – that has caused Plaintiffs’ alleged injuries.” Def. Br. at 18 (original emphasis). This
17 In other contexts, courts have held that a forced disclosure of the organization’s membership lists must be regarded as entailing the likelihood of a substantial restraint upon the exercise of the members’ right to freedom of association where the disclosure would likely “induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” NAACP v. Alabama, 357 U.S. 449, 462-63 (1958).
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argument misunderstands the nature of the “fairly traceable” prong of the standing inquiry, which does not require a direct and unmediated link between an unconstitutional act and a plaintiff’s injuries. That is, the mere presence of a third party in the causal chain does not “break the causation requirement” for standing purposes, as the City maintains. To the contrary, Plaintiffs’ injuries remain “fairly traceable” to the City because disclosure of its policy and practice caused injury only because the City’s policy was unlawful and discriminatory in the first place. Moreover, the notion that a plaintiff lacks standing because the press first reports a previously secret program would impermissibly transform the press’s exercise of its First Amendment-protected role into a shield against judicial review of unconstitutional practices, especially in a case where there is no suggestion that the information reported by the press is privileged against use at trial. Regardless, in this case, the AP’s role in publicizing the City’s discriminatory surveillance policy was quickly eclipsed by senior City officials, who confirmed the existence of the program and endorse its legitimacy.
NYC further suggests that whenever a harm turns on “the independent action of some third party not before the court” there is no Article III standing. Def. Br. at 17 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)); Duquesne Light Co. v. EPA, 166 F.3d 609, 613 (3d Cir. 1999)). But “[t]he fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing.” Warth, 422 U.S. at 504. Indeed, the cases cited by the City do not stand for the proposition that a plaintiff lacks standing whenever a third party’s action is somewhere in the causal chain between the government conduct and the plaintiff’s injury. Rather, the “independent action of some third party” only stands as an obstacle to standing where “plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else” who in turn harms the plaintiff, as opposed to cases where “the
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plaintiff is himself an object of the [government] action (or forgone action) at issue.” Lujan, 504 U.S. at 560-62 (emphasis in original). Here, the AP was certainly not the object of the City’s unlawful policy and practice. The AP is therefore not the kind of “third party” whose presence in the causal chain might create difficulties under the “fairly traceable” prong of the standing inquiry. Instead, in the language of Lujan, Plaintiffs are themselves the “object[s] of the [government] action . . . at issue” – i.e., they are the objects of the NYPD’s unconstitutionally discriminatory surveillance. And where a plaintiff is the direct object of government conduct, Lujan instructs that “there is ordinarily little question that the [government] action or inaction has caused [plaintiff] injury, and that a judgment preventing or requiring the action will redress it.” Id. at 561-62.
This is clearly illustrated by examining the only two cases cited by the City in support of its argument that Plaintiffs’ injuries are not “fairly traceable” to the NYPD, but instead to the AP. In Simon v. Eastern Kentucky Welfare Rights Organization, plaintiffs challenged an IRS rule that did not govern the plaintiffs directly, but rather dictated the tax treatment of non-profit hospitals which, plaintiffs argued, would respond to the IRS rule by denying healthcare services to the plaintiffs. See 426 U.S. at 28, 42-46. Thus, the hospitals were a “third party” in the sense of being the only party directly regulated by the IRS, and the plaintiffs’ injuries were therefore “fairly traceable” to the IRS only if plaintiffs could show that the hospital’s decisions to deny them services were based on the IRS rule and not the “result [of] decisions made by the hospitals without regard to tax implications.” Id. at 42-43. Unlike the plaintiffs in Simon, Plaintiffs here are the direct objects of the City’s challenged conduct. Indeed, the AP – the supposed “third party” – was in no way a part of the operation of the NYPD’s discriminatory policy or practice as the hospitals were in Simon.
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Duquesne Light Co. v. EPA, also cited by the City, provides even less support for its argument. In that case, an electric utility sought to invalidate certain Pennsylvania Department of Environmental Protection (“PDEP”) regulations, approved by the EPA, that would have caused the utility financial injury. 166 F.3d at 611-13. The case was dismissed for lack of standing not simply because only the EPA had jurisdiction to regulate the PDEP, rather than the plaintiff utility, but also because the EPA lacked authority to require PDEP to modify the regulations at issue so as to alleviate plaintiff’s financial injury. Id. at 613. In other words, the EPA did not inflict the financial injury, could not have prevented it, and had no power to redress it. The case could not be more dissimilar to this one, where the NYPD directly targets Plaintiffs with its unlawful surveillance practices, and where effective redress can only come from the City in the form of an order requiring the City to cease its unconstitutional discrimination and to make Plaintiffs whole by expunging unlawfully gathered records and providing compensatory or nominal damages.
The City’s argument that the AP’s disclosure of the Program immunizes NYC from liability for its constitutional violations is also contradicted by a number of cases in which courts have had no difficulty in holding that a plaintiff’s injuries are “fairly traceable” to a government entity’s unlawful conduct notwithstanding the prominent presence of a third party somewhere in the causal chain. See, e.g., Meese, 481 U.S. at 472-74 (government label on publication caused reputational injury, despite the fact that the response of third parties to the government’s label was direct cause of injury); Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 493-94 (3d Cir. 1999) (plaintiff not hired by employer had standing to challenge government regulations that encouraged affirmative action, even though adverse employment decision was actually made by private employer and not specifically mandated by the challenged regulations); McKay v. Horn,
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529 F. Supp. 847, 854-55 (D.N.J. 1981) (injury was fairly traceable to federal statute even though injury was directly caused by New Jersey legislature’s decision to enact a state statute in response to federal statute); Camden v. Plotkin, 466 F. Supp. 44, 48-50 (D.N.J. 1978) (plaintiffs had standing to challenge methodology used by Census Bureau because undercounting of minorities might result in reduced federal aid, even though third-party agency was responsible for making such cuts). Moreover, Plaintiffs are aware of no case decided by any U.S. court – and the City does not cite any – in which the action of a newspaper reporting on a government program was regarded as “independent action of a third party” sufficient to insulate the government from suit by individuals affected by the government policy.
Finally, the AP’s exposé on the City’s discriminatory surveillance program, which first brought Plaintiffs’ injuries to light, was quickly eclipsed by the public statements of senior City officials, who confirmed the existence of the program, praised it, and, indeed, touted it as an important effort to prevent terrorist attacks, thereby reaffirming the deeply stigmatizing and unconstitutional premise of the program that is itself the principal source of Plaintiffs’ injuries: that Muslims such as Plaintiffs are properly objects of suspicion simply on account of their religion, and that they will therefore be singled out by law enforcement on that basis. See First Am. Compl. ¶¶ 61, 65; Katon Dec. ¶¶ 3,5 (attaching statements of Mayor Bloomberg, Ray Kelly, and Thomas Galati all confirming the program’s existence and endorse its legitimacy).
C. Plaintiffs’ injuries will be redressed by a favorable decision. Finally, Plaintiffs satisfy the “redressability” prong of the three-part standing inquiry. NYC’s motion to dismiss does not contend that Plaintiffs’ injuries would not be redressed by a favorable decision by this Court. In fact, it is evident that Plaintiffs’ injuries are redressable by an order requiring the NYPD to cease its unconstitutional discrimination, remove the taint of past illegal surveillance by expunging unlawfully gathered records, and pay compensatory or nominal
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damages, as appropriate. Similarly, Plaintiffs’ injuries regarding future employment prospects would be redressed by a declaratory judgment that the NYPD’s surveillance of them was unconstitutional and an order requiring the NYPD to expunge records. Finally, Plaintiffs’ economic injuries – reduced property values and decreased business – would be redressed by compensatory damages against the NYPD.
Additionally, the fact that Plaintiffs’ injuries would be redressed by an order against the City further undermines the City’s argument that the harms here are not “fairly traceable” to the NYPD’s discriminatory policy and practice. Where “[t]he relief requested by the plaintiffs [is] simply the cessation of the allegedly illegal conduct . . . the ‘redressability’ analysis is identical to the ‘fairly traceable’ analysis.” Allen, 468 U.S. at 759 n.24. In the present case, Plaintiffs in fact seek the cessation of the allegedly illegal conduct, along with other relief – expungement and compensatory or nominal damages – that is also tightly connected to the specific violations of law alleged. Indeed, the fact that Plaintiffs’ injuries would be redressed by an order against the City is itself strong evidence that those injuries are “fairly traceable” to the City’s actions. IV. PLAINTIFFS HAVE STATED A CLAIM FOR EXPUNGEMENT
Plaintiffs are entitled to the remedy of expungement based upon the NYPD’s collection of records on Muslims in violation of the First and Fourteenth Amendments, as set forth fully above in response to NYC’s motion to dismiss those claims. Such a remedy is well established when law enforcement creates records through unconstitutional surveillance. In Paton, the FBI’s Newark office kept a record of a high school student in a file labeled “Subversive MatterSocialist Workers Party” because she requested information from the Socialist Labor Party as part of an assignment for her Social Studies class. The court reversed summary judgment on the
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student’s constitutional claims and recognized her standing18 to seek expungement because “the existence of the records may at a later time become a detriment to her.”19 Paton, 524 F.2d at 866, 868; see also Doe v. U.S. Air Force, 812 F.2d 738, 741 (D.C. Cir. 1987) (“The federal courts are empowered to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute.”)
At this preliminary stage, based upon the strength of Plaintiffs’ allegations of unconstitutional surveillance and the harm it caused each of them, Plaintiffs have stated a claim upon which the relief of expungement may be granted. Paton, 524 F.2d at 873 (“The scope of such relief will depend on the factual and legal background of the district court’s decision and is largely within the discretion of that court.”). NYC’s motion to dismiss the claim should, therefore, be denied.
18 The court found that the threatened injury caused by the FBI’s retention of her file was “concrete injury” under Laird and Philadelphia Yearly. See supra § III (discussion of Laird and Philadelphia Yearly cases). 19 The court recognized the expungement remedy but remanded the case for the parties to further develop the record. Paton, 524 F.2d at 867 n.3, 869.
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CONCLUSION

For all of the foregoing reasons, the Court should deny the City of New York’s Motion to

Dismiss in its entirety.

Dated: January 25, 2013 New York, New York

Baher Azmy Ghita Schwarz, pro hac admission pending Omar Farah, pro hac admission pending CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212-614-6427 bazmy@ccrjustice.org

By: _/s/Baher Azmy__________________ Baher Azmy

Glenn Katon Farhana Khera MUSLIM ADVOCATES 315 Montgomery Street, 8th Floor San Francisco, CA 94104

Ravinder S. Bhalla THE BHALLA LAW FIRM 333 Washington Street, Suite 203 Jersey City, NJ 07302

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I, Baher Azmy, co-counsel to Plaintiffs certifies that on January 25, 2013, I caused to be filed with the clerk of the United States District Court District of New Jersey the Plaintiffs’ Brief in Opposition to Motion to Dismiss and the Declaration of Glenn Katon, Esq. with accompanying Exhibits A-F. On January 25, 2013, the foregoing was served on counsel for the Defendants via ECF.
Dated: New York, NY January 25, 2013
_/s/Baher Azmy__ Baher Azmy Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 11201 212-614-6427 bazmy@ccrjustice.org

 
 Case 2:12-cv-03401-WJM-MF Document 45 Filed 11/06/15 Page 1 of 1 PageID: 607

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

----------------------------X SYED FARHAJ HASSAN, et al

Plaintiffs,

2:12-cv-03401 WJM

v. THE CITY OF NEW YORK,

ORDER ON MANDATE

Defendants. ----------------------------X

The Third Circuit Court of Appeals having rendered its judgment on October 13, 2015 wherein it reversed this Court’s February 20, 2014 judgment and remanded to the District Court for further proceedings;
It is on this 6th day of November, 2015 ORDERED that the above captioned matter is reopened for further proceedings consistent with the Court of Appeals October 13, 2015 Opinion.
S/William J. Martini ____________________________ WILLIAM J. MARTINI, U.S.D.J.

 
 Case 2:12-cv-03401-WJM-MF Document 88 Filed 04/05/18 Page 1 of 30 PageID: 680

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------------------------------- x

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; ZAIMAH ABDUR-RAHIM; and ABDULHAKIM ABDULLAH,

12-CV-3401 (WJM)(MF)

Plaintiffs,

-against-

THE CITY OF NEW YORK,

Defendant. ---------------------------------------------------------------------------- x

STIPULATION OF SETTLEMENT

WHEREAS, on June 6, 2012, Plaintiffs in the above-captioned action (“Hassan”)

filed a complaint in this Court alleging that Defendant City of New York (“Defendant” or

“City”) has engaged and continued to engage in a policy and practice of targeting New Jersey

Muslims for suspicionless surveillance, infiltration, and investigation based solely on their

adherence to the religion of Islam, stigmatizing Plaintiffs and violating their rights under the

Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, the Free

Exercise and Establishment Clauses of the First Amendment, and maintaining records on

Plaintiffs that are the improper product of the constitutional violations listed above (the

“Complaint”); and

WHEREAS, on October 3, 2012, Plaintiffs filed an Amended Complaint

(“Amended Complaint”); and

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WHEREAS, plaintiffs are represented by the Center for Constitutional Rights, Gibbons, P.C., and Muslim Advocates (collectively “Plaintiffs’ Counsel”); and
WHEREAS, on December 6, 2012, Defendant moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1); and
WHEREAS, on February 20, 2014, the United States District Court for the District of New Jersey granted Defendant’s motion to dismiss the Amended Complaint; and
WHEREAS, on March 21, 2014, Plaintiffs appealed the district court’s dismissal of the Amended Complaint to the United States Court of Appeals for the Third Circuit; and
WHEREAS, on October 13, 2015, following briefing and oral arguments, the Third Circuit reversed and remanded the district court’s dismissal for lack of standing and failure to state a claim for further proceedings, finding, inter alia, that “discrimination itself is [a] legally cognizable injury”, and that Plaintiffs plausibly pled that the NYPD conducted a “surveillance program with a facially discriminatory classification” and that “intentional discrimination based on religious affiliation must survive heightened equal-protection review”; and
WHEREAS, on January 1, 2016, Defendant answered the Amended Complaint; and
WHEREAS, Defendant City of New York has denied any and all liability arising out of Plaintiffs’ allegations; and
WHEREAS, beginning in February 2016, Plaintiffs and Defendant (together, the “Parties”) entered into a Settlement Process, during which the Court issued a stay of the Hassan litigation; and
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WHEREAS, during the Settlement Process, the Parties engaged in negotiations and Defendant voluntarily provided information to Plaintiffs’ Counsel; and
WHEREAS, Defendant made available to Plaintiffs’ Counsel for review, inter alia, internal NYPD documents relating to: the makeup and functioning of the Demographics Unit (later renamed the Zone Assessment Unit); activities of the NYPD Intelligence Division within New Jersey; how the NYPD applies relevant sections of the now Revised Handschu Guidelines, approved by Judge Charles S. Haight, Jr. on March 13, 2017, in Handschu v. Special Services Division, 71-CV-2203 (CSH) (S.D.N.Y.) (“Revised Handschu Guidelines”), attached hereto as Exhibit A, in its intelligence gathering and choice of investigative techniques to guard against unconstitutional and discriminatory policing activity; the way in which NYPD officers, including officers in the Intelligence Division, are trained and supervised on the policies in the Revised Handschu Guidelines; and documents relating to the named plaintiffs in Hassan themselves, all of which were and continue to be subject to a strict protective order docketed April 1, 2016 (the “2016 Protective Order”); and
WHEREAS, during the course of the Settlement Process, the Parties conducted in-person meetings with several high level employees of the City and NYPD and discussed various topics and issues central to the case; and
WHEREAS, during the Settlement Process, the attorneys for the Parties met in person or through teleconferences numerous times, during which both sides have made presentations about various topics and issues central to the case; have discussed certain documents that were made available to Plaintiffs’ Counsel; have discussed the Parties’ respective settlement positions; and have arrived at a settlement; and
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WHEREAS, the Parties agree that the NYPD must fulfill its responsibility to preserve public safety and security, and Defendant is committed to mitigating the potential impact that the investigation of potential unlawful conduct may have on the constitutionallyprotected political or religious activity of individuals, groups, or organizations, and the potential effect on persons who, although not a target of the investigation, are affected by or subject to the NYPD’s investigative techniques; and
WHEREAS, the City affirms that it has disbanded the Zone Assessment Unit of the NYPD Intelligence Division (f/k/a the Demographics Unit), the entity that engaged in the allegedly unconstitutional conduct at issue in this litigation; and
WHEREAS, the Parties’ negotiations have resulted in this Stipulation of Settlement (“Stipulation”), which settles the claims in Hassan in the manner and upon the terms below; and
WHEREAS, the cases of Handschu v. Special Services Division, 71-CV-2203 (CSH) (S.D.N.Y.) (“Handschu”) and Raza, et al. v. City of New York, et al., 13-CV-3448 (PKC) (JO) (“Raza”), which asserted similar allegations as in Hassan; were settled in March 2017 and as part of the settlement in those cases, the City agreed to revise the Handschu Guidelines which govern the investigations of political activity; and
WHEREAS, the NYPD Intelligence Bureau has revised and will continue to revise its PowerPoint training presentation regarding the Revised Handschu Guidelines (the “Revised Handschu Training PowerPoint”); and
WHEREAS, the NYPD Intelligence Bureau is drafting a proposed policy guide (the “Proposed Policy Guide”) that will include guidance related to compliance with the Revised Handschu Guidelines; and
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WHEREAS, counsel for the Parties are entering into this Stipulation after goodfaith negotiations for the purpose of settling any and all liability, claims, or rights of action alleging a violation of Plaintiffs’ civil rights and any and all related state law claims, to avoid the burden of further litigation, and to promote the lawful and nondiscriminatory activities of the NYPD to protect the City of New York; and
WHEREAS, the parties now regard as beneficial the resolution of the issues raised in this litigation, without further proceedings and without admitting any fault or liability.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED as follows:
1. It is the policy of the NYPD that investigations involving political activity conform to the guarantees of the United States Constitution including the United States Constitution’s guarantee of equal protection. It is also the policy of the NYPD that care be exercised in the conduct of those investigations so as to protect constitutional rights, including but not limited to the First Amendment rights of expression and association and the right to be free from investigation in which race, religion, or ethnicity is a substantial or motivating factor.
2. Defendant agrees that, in conducting activities in New Jersey under Section IX of the Revised Handschu Guidelines, including but not limited to the actions alleged in the Amended Complaint (e.g., mapping, monitoring, collecting and retaining data regarding mosques, schools, Muslim-owned businesses or Muslim social, religious, civic or student groups and accessing online sites and forums), the NYPD shall act in accordance with Sections X and XI of those guidelines. Specifically, the City agrees that all NYPD law enforcement activities related to investigations involving political activity in New Jersey must have a valid law enforcement purpose and conform to the Constitution and laws of the United States, including
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activities protected by the First Amendment, and that the NYPD shall not conduct investigations in which race, religion or ethnicity is a substantial or motivating factor.
3. Defendant acknowledges that, under the Revised Handschu Guidelines, investigations by the NYPD involving political activity taking place in New Jersey shall be subject to the Handschu Committee process set out in the Revised Handschu Guidelines.
4. Defendant agrees that Plaintiffs and Plaintiffs’ Counsel will be given timely access to a full draft of the Proposed Policy Guide. Plaintiffs’ Counsel will have the opportunity to review and provide recommendations and proposed revisions. Defendant will meaningfully consider Plaintiffs’ recommendations and proposed revisions and will respond to them in writing or meet and confer with Plaintiffs’ Counsel on a timely basis after receiving recommendations and proposed revisions. In the event that the Proposed Policy Guide is ready for publication prior to the conclusion of the settlement process, Plaintiffs’ Counsel will have an opportunity to review and provide recommendations and proposed revisions to the first amended Policy Guide. The parties agree that the Proposed Policy Guide and all recommendations and proposed revisions by Plaintiffs’ Counsel are subject to the 2016 Protective Order.
5. Defendant agrees to make public, with necessary redactions, the final version of the Proposed Policy Guide within 60 days of finalizing revisions.
6. Defendant agrees to include in the Proposed Policy Guide a written protocol setting forth the manner in which the NYPD Intelligence Bureau will fully comply, absent exigent circumstances, with N.J.S.A. 2A:156A-35 through -37 regarding proposed entry into New Jersey for law enforcement purposes.
7. Defendant agrees that the Revised Handschu Training PowerPoint shall positively emphasize the City’s stated interest and obligation in protecting the Equal Protection
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and First Amendment rights of all individuals regardless of race, ethnicity or religion, and avoiding racial, ethnic and religious stereotyping. Defendant shall consider the inclusion of more practical and scenario based training to reinforce the above, after consultation with Plaintiffs’ Counsel and/or their expert.
8. Defendant agrees to provide Plaintiffs’ Counsel the opportunity to provide suggested changes and comments which Defendant will meaningfully consider incorporating into the Revised Handschu Training PowerPoint. The parties agree that the Revised Handschu Training PowerPoint and all suggested changes and comments by Plaintiffs’ Counsel are subject to the 2016 Protective Order.
9. Defendant agrees to disclose all of the Zone Assessment Unit’s (f/k/a the Demographics Unit) DD5s, “Weekly MSA Reports,” and all other documents created or maintained by the NYPD Intelligence Bureau, except Handschu investigative statements, if any, regarding Plaintiffs to Plaintiffs’ counsel for their review and thereafter to use reasonable and diligent efforts to expunge them permanently from the NYPD Intelligence Bureau information systems. Defendant further agrees to seal and archive the Demographic reports of Muslim communities in New Jersey and make them available to members of the NYPD only with approval of the Deputy Commissioner for Legal Matters, Deputy Commissioner for Intelligence and Counterterrorism, Chief of Intelligence or the Executive Officer of the Intelligence Bureau.
10. Defendant agrees that the Commissioner of the NYPD, Deputy Commissioner for Intelligence and Counterterrorism, or other high-ranking official from the Intelligence Bureau, shall attend a public meeting in New York City where the Plaintiffs and members of the Plaintiffs’ community in New Jersey will have the opportunity to speak directly with the designated representatives of the City. Contemporaneous with the filing of this
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stipulation with the Court, the NYPD will issue a statement affirming that it exercises care in the conduct of investigations involving political activity so as to protect constitutional rights, including the right to be free from investigation in which race, religion or ethnicity is a substantial or motivating factor.
11. The sole authority to allege that the NYPD has violated the Revised Handschu Guidelines (Exhibit A hereto) remains with Class Counsel in Handschu and nothing in this Stipulation shall be construed to mean otherwise. This Stipulation does not create any additional rights of enforcement, or forms of relief available, for alleged violations of the Revised Handschu Guidelines. Nevertheless, nothing in this paragraph shall be read to foreclose Plaintiffs from seeking to enforce the provisions of this agreement, consistent with the law and the rules of this court.
12. The sole court empowered to hear a complaint from Class Counsel in Handschu that there has been a violation of the Revised Handschu Guidelines remains the Court in Handschu pending in the Southern District of New York.
13. Nothing contained in this Stipulation shall be deemed to be an admission by Defendant, or an adjudication, or finding on the merits of any of Plaintiffs’ allegations, assertions, or claims made in this action, nor an admission by Defendant that it has in any manner or way violated the rights of Plaintiffs or the rights of any other person or entity as defined in the constitutions, statutes, ordinances, rules or regulations of the United States, the State of New York, or the City of New York or any other rules or regulations of any department or subdivision of the City of New York.
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14. Nothing contained in this Stipulation shall be deemed an admission by Plaintiffs of the absence of any such fault, wrongdoing, culpability, or liability on Defendant’s part.
15. This Stipulation shall not be admissible in any other litigation or settlement negotiation, except to enforce the terms of this agreement. This Stipulation is not related to any other litigation or settlement negotiation except the Hassan litigation.
16. Any subsequent modification, amendment or vacatur of the Revised Handschu Guidelines shall supersede, preempt, and void any provision of this agreement that is in conflict with said modification, amendment or vacatur.
17. Defendant agrees to pay Plaintiffs the following amounts in full satisfaction of all claims: $1,250 to Abdul-Hakim Abdullah, $1,250 to Zaimah-Abdur Rahim $5,000 to Syed Farhaj Hassan, $5,000 to Moiz Mohammed, $5,000 to the Muslim Students Association of the U.S. and Canada, Inc., $5,000 to Jane Doe, $5,000 to the Muslim Foundation, Inc., $10,000 to All Body Shop Inside and Outside, $15,000 to Unity Beef Sausage Company, and $22,500 to the Council of Imams in New Jersey.
18. The Parties acknowledge that the Defendant shall pay Plaintiffs reasonable attorneys’ fees, costs and expenses in the amount of $950,000 in full satisfaction of all claims by Plaintiffs and Plaintiffs’ Counsel for attorneys’ fees, costs, and expenses arising out of this action. Plaintiffs shall direct the payment of the foregoing attorneys’ fees, costs, and expenses to Plaintiffs’ Counsel in a separately executed document. Plaintiffs and Plaintiffs’ Counsel hereby agree and represent that no other claims for attorneys’ fees, costs, or expenses arising out of this action shall be made by or on behalf of Plaintiffs against Releasees in any application for attorneys’ fees, costs, or expenses at any time, and Plaintiffs and Plaintiffs’ Counsel shall release
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and discharge Releasees for all claims for attorneys’ fees, costs, and expenses arising out of this action.
19. In consideration for the relief set out in this Stipulation, Plaintiffs 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, Zaimah Abdur-Rahim, and Abdul-Hakim Abdullah agree to dismiss all of the claims against Defendant City of New York; and to release Defendant City of New York; and all past and present officials, employees, representatives and agents of the City of New York, or any entity represented by the Office of the Corporation Counsel (collectively, “Releasees”) from any and all liability, claims, or rights of action alleging a violation of Plaintiffs’ civil rights and any and all related state law claims, from the beginning of the world to the date of the Parties’ execution of this Stipulation, including claims for attorneys’ fees, costs, expenses.
20. This Stipulation contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation of Settlement regarding the subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein, except that the 2016 Protective Order continues in effect.
21. This Stipulation shall constitute full relief with respect to matters set forth in the Amended Complaint, and resolves in full any and all claims or rights of action against Defendant City of New York, together with past and present officials, employees, representatives, and agents of Defendant City of New York that may have been based upon or arisen from any alleged policy, pattern, or practice that the NYPD conducted unlawful
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surveillance or investigations on the basis of race, religion, or ethnicity that could have been raised at this time, in this action.
22. Plaintiffs and Plaintiffs’ Counsel shall each execute and deliver to Defendant’s attorneys all documents necessary to effect this settlement, including, without limitation, general releases based on the terms of this Stipulation and IRS Form W-9 (Rev. Dec. 2014).
23. The undersigned counsels represent and warrant that they are authorized by their respective clients to execute this Stipulation.

Dated: New York, New York April 5, 2018
COUNSEL FOR DEFENDANT

COUNSEL FOR PLAINTIFFS

ZACHARY W. CARTER Corporation Counsel of the
City of New York

By: __s/ Baher A. Azmy Baher A. Azmy Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 T: 212-614-6464

By: __s/ Peter G. Farrell Peter G. Farrell Deputy Division Chief 100 Church Street New York, New York 10007 T: (212) 356-3532

By: __s/ Lawrence S. Lustberg___ Lawrence S. Lustberg Gibbons P.C. One Gateway Center Newark, New Jersey 07102-5310 T: 973-596-4500

By: _s/ Farhana Khera Farhana Khera Muslim Advocates P.O. Box 71080 Oakland, CA 94612 T: 415-692-1484

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EXHIBIT A

Case 2:12-cv-03401-WJM-MF Document 88 Filed 04/05/18 Page 13 of 30 PageID: 692
GUIDELINES FOR INVESTIGATIONS INVOLVING POLITICAL ACTIVITY
PREAMBLE Subsequent to the terrorist attacks on the City of New York on September 11, 2001 which resulted in the loss of thousands of lives and the total destruction of the World Trade Center complex, it became apparent that the City faces unprecedented threats to its continued safety and security. In the view of federal, state and local law enforcement agencies, the prevention of future attacks requires the development of intelligence and the investigation of potential terrorist activity before an unlawful act occurs.
As a result of a federal court order entered in 1985, the New York City Police Department was bound by guidelines, known as the Handschu Guidelines, which governed the investigation of political activity. The Handschu Guidelines (i) limited the investigation of political activity to those circumstances when there was specific information of criminal activity and (ii) established the Handschu Authority to oversee compliance. After evaluating the impact of the Handschu Guidelines on the need to investigate terrorism in a changed world, the City made an application to modify the order so as to eliminate the restrictions contained in the Handschu Guidelines and the oversight of the Handschu Authority with respect to those restrictions. The City did not seek to eliminate the Handschu Authority’s role to investigate an individual’s complaint that the NYPD had engaged in unconstitutional conduct in the investigation of political activity.
The Court granted the City’s application to modify the decree provided the City adopt the internal guidelines set forth below and distribute the guidelines to supervisory personnel who, in turn, were to make them known to those under their command. These guidelines were subsequently incorporated into an order of the Court in 288 F.Supp.2d 411, 420 (S.D.N.Y. 2003) and are enforceable as set out in 679 F.Supp.2d 488, 497 (S.D.N.Y. 2010). They shall remain in effect unless otherwise ordered by the Court. These guidelines are binding on all members of the service who are engaged in the investigation of political activity. It is the purpose of these guidelines to enable officers to perform their duties with greater certainty, confidence and effectiveness while at the same time protecting the guarantees of the Constitution.
I. STATEMENT OF POLICY It is the policy of the New York City Police Department that investigations involving political activity conform to the guarantees of the Constitution, including the guarantee of equal protection. It is the policy of the New York City Police Department that care be exercised in the conduct of those investigations so as to protect constitutional rights, including the right to be free from investigation in which race, religion, or ethnicity is a substantial or motivating factor. It is the policy of the New York City Police Department that matters investigated be confined to those supported by a legitimate law enforcement purpose.
II. GENERAL PRINCIPLES (1) In its effort to anticipate or prevent unlawful activity, including terrorist acts, the NYPD must, at times, initiate investigations in advance of unlawful conduct. It is important that such investigations not be based solely on activities protected by the First Amendment. It is also important that investigations not intrude upon rights of expression or association in a manner that discriminates on the basis of race, religion or ethnicity, where such

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discrimination is a substantial or motivating factor for the investigation. When, however, statements advocate unlawful activity, or indicate an apparent intent to engage in unlawful conduct, particularly acts of violence, an investigation under these guidelines may be warranted, unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm.
(2) Based upon the circumstances of a given case, investigative action may be required under exigent circumstances. Exigent circumstances are circumstances requiring action before authorization otherwise necessary under these guidelines can reasonably be obtained, in order to protect life or substantial property interests; to apprehend or identify a fleeing offender; to prevent the hiding, destruction or alteration of evidence; or to avoid other serious impairment or hindrance of an investigation.
When any investigative action, taken under exigent circumstances, would require an approval under ordinary conditions, such approval shall be obtained as soon as practicable in accordance with the provisions of these guidelines. Where a regular approval or request is required to be in writing, the approval or request following exigent circumstances shall also be in writing.
(3) Investigations shall be terminated when all logical leads have been exhausted and no legitimate law enforcement purpose justifies their continuance.
III. APPLICABILITY These guidelines apply only to investigations which involve political activity. They do not apply to, or limit, other activities of the NYPD in the investigation or detection of unlawful conduct, the preservation of the peace and public safety or other legitimate law enforcement activities which do not involve political activity.
IV. ROLE OF THE INTELLIGENCE BUREAU (1) Investigation of political activity shall be initiated by, and conducted under the supervision of the Intelligence Bureau. Nothing in this paragraph, however, is intended to prevent any member of the service from reporting his or her observations of suspicious conduct which involves political activity to his or her commanding officer or to the Intelligence Bureau.
(2) The Deputy Commissioner of Intelligence shall periodically inform and advise the Police Commissioner concerning the status of any investigations conducted pursuant to these guidelines.
V. LEVELS OF INVESTIGATION These guidelines provide for three levels of investigative activity. They are intended to provide the NYPD with the necessary flexibility to act well in advance of the commission of planned terrorist acts or other unlawful activity. However, if the available information shows at the outset that the threshold standard for a Preliminary Inquiry or Full Investigation is satisfied, then the appropriate investigative activity may be initiated immediately, without progressing through more limited investigative stages.
A. Checking of Leads

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The lowest level of investigative activity is the “prompt and extremely limited checking out of initial leads,” which should be undertaken whenever information is received of such a nature that some follow-up as to the possibility of unlawful activity is warranted. This limited activity should be conducted with an eye toward promptly determining whether further investigation (either a Preliminary Inquiry or a Full Investigation) should be conducted.
Example: If the NYPD receives an allegation that an individual or group has advocated the commission of violence, and no other facts are available, an appropriate first step would be Checking of Leads to determine whether the individual, group, or members of the audience have the apparent ability or intent to carry out the advocated unlawful act.
B. Preliminary Inquiries (1) In cases where the NYPD receives information or an allegation not warranting a Full Investigation - because there is not yet a “reasonable indication” of unlawful activity but whose responsible handling requires some further scrutiny beyond the prompt and extremely limited checking out of initial leads, the NYPD may initiate an “inquiry” in response to the allegation or information indicating the possibility of unlawful activity. The possibility of unlawful activity to initiate a Preliminary Inquiry requires an allegation or information that is articulable and factual. However, such allegation or information need not have been verified as true or accurate. Whether it is appropriate to open a Preliminary Inquiry immediately, or instead to engage first in a limited Checking of Leads, depends on the circumstances presented.
(2) The authority to conduct inquiries short of a Full Investigation allows the NYPD to respond in a measured way to ambiguous or incomplete information, with as little intrusion as the needs of the situation permit. This is especially important in such areas as where there is no complainant involved or when an allegation or information is received from a source of unknown reliability. Such inquiries are subject to the limitations on duration under paragraph (4) below and are carried out to obtain the information necessary to make an informed judgment as to whether a Full Investigation is warranted.
Example: Officers are not required to possess information relating to an Individual’s intended unlawful use of dangerous biological agents or toxins prior to initiating investigative activity. If an individual or group has attempted to obtain such materials, or has indicated a desire to acquire them, and the reason is not apparent, investigative action, such as conducting a Checking of Leads or initiating a Preliminary Inquiry, may be appropriate to determine whether there is a legitimate purpose for the possession of the materials by the individual or group. A Preliminary Inquiry is not a required step when facts or circumstances reasonably indicating unlawful activity are already available. In such cases, a Full Investigation can be immediately opened.
(3) A Preliminary Inquiry may be authorized by the Chief of Intelligence or Executive Officer of the Intelligence Bureau, or the Commanding Officer of the Criminal Intelligence Section (“the Authorizing Officials”). The Authorizing Official must

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assure that the allegation or other information which warranted the inquiry has been recorded in writing. Upon such authorization a notification must be made for final approval by the Deputy Commissioner of Intelligence.
(4) Inquiries shall be completed within 180 days after initiation of the first investigative step. The date of the first investigative step is not necessarily the same date as the date on which the first incoming information or allegation was received. An extension of time in an inquiry for succeeding 90 day periods may be granted by the Deputy Commissioner of Intelligence. Any such request for extension shall be in writing and shall include a statement of the reasons why further investigative steps are warranted when there is no reasonable indication of unlawful activity. The action taken on any such request for extension shall also be recorded in writing.
(5) A Preliminary Inquiry shall be subject to a review every 6 months by the Chief of Intelligence, or an appropriate executive of the Intelligence Bureau designated by him, to discuss the status of the Preliminary Inquiry, including, what operational steps should be taken.
(6) A Preliminary Inquiry shall be presumptively limited to a total duration of 18 months. This presumptive period of duration may be exceeded in the sole discretion of the Deputy Commissioner of Intelligence, in consultation with the Handschu Committee, where the allegations or information continue to indicate the possibility of unlawful activity and either that some further leads should be lawfully investigated or that there is a legitimate law enforcement purpose to be pursued further. When the presumptive period of duration is exceeded all other provisions regarding a Preliminary Inquiry continue to apply.
(7) All lawful investigative techniques, including the use of undercover operations and the development of sources and informants may be used in a Preliminary Inquiry except:
(a) Mail openings; and,
(b) Eavesdropping and Video Surveillance as those terms are defined in Article 700 of the New York State Criminal Procedure Law.
(8) The following investigative techniques may be used in a Preliminary Inquiry without any prior authorization from a supervisor:
(a) Examination of NYPD indices and files;
(b) Examination of records available to the public and other public sources of information;
(c) Examination of available federal, state and local government records;
(d) Interview of complainant, previously established informants, and other sources of information;
(e) Interview of the potential subject;
(f) Interview of persons who should readily be able to corroborate or deny the truth of the allegation, except this does not include pretext interviews or interviews of a

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potential subject’s employer or coworkers unless the interviewee was the complainant; and
(g) Physical, photographic or video surveillance of any person, provided that such surveillance does not require a warrant.
The use of any other lawful investigative technique that is permitted in a Preliminary Inquiry shall meet the requirements and limitations of Part VII and, except in exigent circumstances, requires prior approval by a supervisor.
(9) Where a Preliminary Inquiry fails to disclose sufficient information to justify an investigation, the NYPD shall terminate the inquiry and make a record of the closing.
(10) All requirements regarding inquiries shall apply to reopened inquiries.
C. Full Investigation A Full Investigation may be initiated when facts or circumstances reasonably indicate that an unlawful act has been, is being, or will be committed. A Full Investigation may be conducted to prevent, solve or prosecute such unlawful activity.
(1) The standard of “reasonable indication” is substantially lower than probable cause. In determining whether there is reasonable indication of an unlawful act an investigator may take into account any facts or circumstances that a prudent investigator would consider. However, the standard does require specific facts or circumstances indicating a past, current, or future violation of law. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.
(2) Where an unlawful act may be committed in the future, preparation for that act can be a current violation of the conspiracy or attempt provisions of state law. The standard for opening an investigation is satisfied where there is not yet a current substantive or preparatory unlawful act, but facts or circumstances reasonably indicate that such unlawful conduct will occur in the future.
(3) Any lawful investigative technique may be used in a Full Investigation, subject to the requirements and limitations of Part VI hereof.
(4) Authorization and Renewal
a. A Full Investigation may be authorized by the Chief of Intelligence or Executive Officer of the Intelligence Bureau or the Commanding Officer of the Criminal Intelligence Section (“the Authorizing Officials”) upon a written recommendation setting forth the facts or circumstances reasonably indicating that an unlawful act has been, is being or will be committed. Upon such authorization a notification must be made for final approval by the Deputy Commissioner of Intelligence.
b. A Full Investigation may be initially authorized for a period of up to a year. An investigation may be continued upon renewed authorization for additional periods each not to exceed a year. Renewal authorization shall be obtained from the Deputy Commissioner of Intelligence. All requests for renewal authorization, and action thereon, shall be in writing.

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c. Authorizations shall be reviewed by an Authorizing Official before the expiration of the period for which the investigation and each renewal thereof is authorized.
d. A Full Investigation shall be subject to a review every 6 months by the Chief of Intelligence, or an appropriate executive of the Intelligence Bureau designated by him, to discuss the status of the Full Investigation, including, what operational steps should be taken.
e. A Full Investigation shall be presumptively limited to a total duration of 3 years. This presumptive period of duration may be exceeded in the sole discretion of the Deputy Commissioner of Intelligence, in consultation with the Handschu Committee, where facts and circumstances continue to reasonably indicate that an unlawful act has been, is being, or will be committed and either that some further leads should be lawfully investigated or that there is a legitimate law enforcement purpose to be pursued further. When the presumptive period of duration is exceeded all other provisions regarding a Full Investigation continue to apply.
(5) An investigation which has been terminated may be reopened upon a showing of the same standard and pursuant to the same procedures as required for initiation of an investigation. All requirements regarding investigations shall apply to reopened investigations.
D. Terrorism Enterprise Investigation A Terrorism Enterprise Investigation is a Full Investigation but differs from a general investigation of unlawful conduct in several important respects. As a general rule, an investigation of a completed unlawful act is normally confined to determining who committed that act and securing evidence to establish the elements of the particular offense. It is, in this respect, self-defining. A Terrorism Enterprise Investigation must determine the identity and nature of the individual, group, or organization involved, its geographic dimensions, its past acts and intended goals, including unlawful goals, and its capacity for harm, among other factors. While a standard investigation of unlawful conduct terminates with the decision to prosecute or not to prosecute, a Terrorism Enterprise Investigation does not necessarily end, even though one or more of the participants may have been prosecuted. In addition, groups and organizations exhibit a life and continuity of operation not normally found in other types of unlawful activity. As a consequence, these investigations may continue for several years. Furthermore, the focus of such investigations may be less precise than that directed against more conventional types of unlawful conduct. Unlike the usual case involving unlawful conduct, there may be no completed offense to provide a framework for the investigation. A Terrorism Enterprise Investigation often requires the fitting together of bits and pieces of information, many meaningless by themselves, to determine whether a pattern of unlawful activity exists. For this reason, such investigations are broader and less discriminate than usual, involving the interrelation of various sources and types of information. This section focuses on investigations of enterprises that seek to further political or social goals through activities that involve force or violence, or that otherwise aim to engage in terrorism or terrorism-related crimes. It authorizes investigations to determine the structure and scope of the enterprise as well as the relationship of the members.

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1. General Authority a. A Terrorism Enterprise Investigation may be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of:
(i) furthering political or social goals wholly or in part through activities that involve force, violence or other unlawful acts;
(ii) engaging in terrorism as defined in N.Y. Penal Law § 490.05, or
(iii) committing any offense described in N.Y. Penal Law §§ 490.10, 490.15, 490.20, 490.25, 490.30, or 490.35, or other related statutes currently in effect or subsequently enacted.
The standard of “reasonable indication” is identical to that governing Full Investigations generally. In determining whether an investigation should be conducted, the NYPD shall consider all of the circumstances including:
(i) the magnitude of the threatened harm;
(ii) the likelihood that it will occur;
(iii) the immediacy of the threat; and
(iv) any danger to privacy or free expression posed by an investigation.
In practical terms, the “reasonable indication” standard for opening a Terrorism Enterprise Investigation could be satisfied in a number of ways.
Example: Direct information about statements made in furtherance of an enterprise’s objectives which show a purpose of committing crimes described in N.Y. Penal Law §§ 490.10, 490.15, 490.20, 490.25, 490.30, 490.35 or other related statutes currently in effect or subsequently enacted, would satisfy the threshold.
Example: Activities such as attempting to obtain dangerous biological agents, toxic chemicals, or nuclear materials, or stockpiling explosives or weapons, with no discernible lawful purpose, may be sufficient to reasonably indicate that an enterprise aims to engage in terrorism.
b. While no particular factor or combination of factors is required, considerations that will generally be relevant to the determination as to whether the threshold standard for a Terrorism Enterprise Investigation is satisfied include, as noted, a group’s statements, its activities, and the nature of potential unlawful acts suggested by the statements or activities. Thus, where there are grounds for inquiry concerning a group, it may be helpful to gather information about these matters, and then to consider whether these factors, either individually or in combination, reasonably indicate that the group is pursuing terrorist activities or objectives as defined in the threshold standard. Findings that would weigh in favor of such a conclusion include, for example, the following:
(1) Threats or advocacy of violence or other covered unlawful acts. Statements are made in relation to or in furtherance of an enterprise’s political or social

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objectives that threaten or advocate the use of force or violence, or statements are made in furtherance of an enterprise that otherwise threaten or advocate unlawful conduct within the scope of N.Y. Penal Law §§ 490.10, 490.15, 490.20, 490.25, 490.30, 490.35, or other related statutes currently in effect or subsequently enacted which may concern such matters as , for example:
(i) engaging in attacks involving or threatening massive loss of life or injury, mass destruction, or endangerment of the national security;
(ii) killing or injuring public officials, or destroying public facilities, or defying lawful authority;
(iii) killing, injuring or intimidating individuals because of their status as United States nationals or persons, or because of their national origin, race, color, religion or sex; or
(iv) depriving individuals of any rights secured by the Constitution or laws of the United States or the State of New York.
(2) Apparent ability or intent to carry out violence or other covered activities. The enterprise manifests an apparent ability or intent to carry out violence or other activities within the scope of N.Y. Penal Law §§ 490.10, 490.15, 490.20, 490.25, 490.30, 490.35 or other related statutes currently in effect or subsequently enacted, for example:
(i) by acquiring or taking steps towards acquiring, biological agents or toxins, toxic chemicals or their precursors, radiological or nuclear materials, explosives or other destructive or dangerous material (or plans or formulas for such materials), or weapons, under circumstances where, by reason of the quantity or character of the items, the lawful purpose of the acquisition is not apparent;
(ii) by the creation, maintenance, or support of an armed paramilitary organization;
(iii) by paramilitary training; or
(iv) by other conduct demonstrating an apparent ability or intent to injure or intimidate individuals, or to interfere with the exercise of their constitutional or statutory rights.
(3) Potential Unlawful Act. The group’s statements or activities suggest potential unlawful acts that may be relevant in applying the standard for initiating a Terrorism Enterprise Investigation - such as crimes under the provisions of the N.Y. Penal Law that set forth specially defined terrorism or support of terrorism offenses, or that relate to such matters as aircraft hijacking or destruction, attacks on transportation, communications, or energy facilities or systems, biological or chemical weapons, nuclear or radiological materials, assassinations or other violence against public officials or facilities, or explosives.
c. Mere speculation that force or violence might occur during the course of an otherwise peaceable demonstration is not sufficient grounds for initiation of an

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investigation under this subpart. But where facts or circumstances reasonably indicate that an individual or group has engaged or aims to engage in conduct described in paragraph 1.a. above in a demonstration, an investigation may be initiated in conformity with the standards of that paragraph. This does not limit the collection of information about public demonstrations by individuals or groups that are under active investigation pursuant to paragraph 1.a. above or any other provisions of these guidelines.
2. Purpose The immediate purpose of a Terrorism Enterprise Investigation is to obtain information concerning the nature and structure of the enterprise as specifically delineated in paragraph (3) below, with a view to the longer range objectives of detection, prevention, and prosecution of the unlawful activities of the enterprise.
3. Scope a. A Terrorism Enterprise Investigation initiated under these guidelines may collect such information as:
(i) the identity and nature of an individual or group and its members, their associates, and other persons likely to be acting in furtherance of its unlawful objectives, provided that the information concerns such persons’ activities on behalf of or in furtherance of the suspected unlawful activity of the individual, group, or organization;
(ii) the finances of the individual, group, or organization;
(iii) the geographical dimensions of the individual, group, or organization; and
(iv) past and future activities and goals of the individual, group, or organization.
b. In obtaining the foregoing information, any lawful investigative technique may be used in accordance with the requirements of these guidelines.
4. Authorization and Renewal
a. A Terrorism Enterprise Investigation may be authorized by the Chief of Intelligence or Executive Officer of the Intelligence Bureau or the Commanding Officer of the Criminal Intelligence Section (“the Authorizing Officials”), upon a written recommendation setting forth the facts or circumstances reasonably indicating the existence of an enterprise as described in paragraph 1.a. above. Upon such authorization a notification must be made for final approval by the Deputy Commissioner of Intelligence. When exigent circumstances exist, as described in these guidelines, a Terrorism Enterprise Investigation may be commenced upon the verbal authorization of an Authorizing Official. However, in such cases, the required written recommendation must be submitted as soon as practicable.
b. A Terrorism Enterprise Investigation may be initially authorized for a period of up to a year. An investigation may be continued upon renewed authorization for additional periods each not to exceed a year. Renewal

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authorization shall be obtained from the Deputy Commissioner of Intelligence. The request for renewal and action thereon shall be in writing.
c. Authorizations shall be reviewed by an Authorizing Official before the expiration of the period for which the investigation and each renewal thereof is authorized. In some cases, the enterprise may meet the threshold standard but be temporarily inactive in the sense that it has not engaged in recent acts of violence or other unlawful activities as described in 1.a., nor is there any immediate threat of harm - yet the composition, goals and prior history of the group suggest the need for continuing law enforcement interest. The investigation may be continued in such cases with whatever scope is warranted in light of these considerations.
d. All Terrorism Enterprise Investigations shall be subject to a review every 6 months by the Chief of Intelligence, or an appropriate executive of the Intelligence Bureau designated by him, to discuss the status of the Terrorism Enterprise Investigation, including, what operational steps should be taken.
e. A Terrorism Enterprise Investigation shall be presumptively limited to a total duration of 5 years, except where the subject of a Terrorism Enterprise Investigation is a designated foreign terrorist organization. This presumptive period of duration may be exceeded in the sole discretion of the Deputy Commissioner of Intelligence, in consultation with the Handschu Committee, where facts and circumstances continue to reasonably indicate that two or more persons are engaged in an enterprise for the purposes stated above and either that some further leads should be lawfully investigated or that there is a legitimate law enforcement purpose to be pursued further. When the presumptive period of duration is exceeded all other provisions regarding a Terrorism Enterprise Investigation continue to apply.
f. An investigation which has been terminated may be reopened upon a showing of the same standard and pursuant to the same procedures as required for initiation of an investigation.
VI. HANDSCHU COMMITTEE
(1) There is hereby established a committee (the “Handschu Committee”) whose members are expected and authorized to attend and participate in monthly meetings at which investigations are presented for opening, extension or closure by the Deputy Commissioner for Intelligence. For each monthly meeting, all attending members will be provided with the investigative statement pertaining to each proposed opening, extension or closing and any corresponding requests to use or extend the use of undercover officers or confidential informants. At the monthly meeting, any member of the Handschu Committee may ask questions and offer opinions regarding the opening, extension or closure of an investigation presented.
(2) Any member of the Handschu Committee may further inquire into the status and conduct of any investigation presented at the meeting, including the use of undercover operations pursuant to section VII herein, provided however that information pertaining to the identity of participants

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in undercover operations, including confidential informants, shall not be disclosed. A member of the Intelligence Bureau with detailed knowledge of operational steps taken in each investigation presented shall be present at the meeting to help address any questions that arise.
(3) Members of the Handschu Committee from the NYPD will include the Deputy Commissioner of Intelligence, the Chief of Intelligence, the Executive Officer of the Intelligence Bureau, the Commanding Officer of IOAS (Intelligence Operations and Analysis Section), the Executive Officer of IOAS, the Commanding Officer (or the Executive Officer) of the Criminal Intelligence Section, the Assistant Commissioner for Intelligence Analysis, the Deputy Commissioner of Legal Matters, Assistant Deputy Commissioner of Legal Matters, Special Counsel for Intelligence Affairs, and/or their successors or persons who occupy similar positions of authority or expertise.
(4) The Special Counsel for Intelligence Affairs shall lead a quarterly discussion for the Handschu Committee related to the NYPD’s compliance during that period in (i) obtaining timely approval in extending or closing investigations, (ii) obtaining timely approval of human source authorizations, and (iii) conducting reviews of Preliminary Inquiries, Full Investigations, and Terrorism Enterprise Investigations every 6 months, as provided in sections V(B)(5), V(C)(4)(d) and V(D)(4)(d) hereof. As part of this quarterly discussion, any member of the Handschu Committee may raise concerns regarding any other aspect of compliance with the Handschu Guidelines. The substance of these quarterly discussions shall be recorded in the minutes of the Handschu Committee meeting.
(5) There shall also be a Civilian Representative on the Handschu Committee who shall, unless unable to do so for good cause, attend and participate in all of the monthly meetings for opening, extension, or closure of investigations and in all of the quarterly discussions led by the Special Counsel for Intelligence Affairs on the same terms and conditions as set forth in paragraphs (1), (2) and (4) above. The Civilian Representative shall be a lawyer who has never previously been an employee of the NYPD. The Civilian Representative shall be appointed by the Mayor upon consultation with the Police Commissioner. The Civilian Representative may be replaced by the Mayor for good cause, with 14 days’ advance notice to Class Counsel prior to such replacement. In the event that the Civilian Representative resigns, the Mayor in consultation with the Police Commissioner will appoint a replacement. The position of Civilian Representative will exist for a minimum of five years from the appointment of the first person to fill that role. After that initial five year period, the position of Civilian Representative will continue unless the Mayor applies to the Court for an amendment to the Revised Handschu Guidelines abolishing the position, upon 30 days’ advance notice to Class Counsel prior to such application. The amendment to the Revised Handschu Guidelines abolishing the position shall be granted by the Court if the Court finds there have not been systematic and repeated violations of the Guidelines to a degree sufficient to show an NYPD policy to act in such a fashion for a period of three years immediately prior to the application, as shown in the reports submitted to the Court by the Civilian Representative.
(a) The Civilian Representative shall submit to a background investigation conducted by the Department of Investigation.

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(b) The NYPD will facilitate an application for a federal security clearance for the Civilian Representative.
(c) The Civilian Representative shall execute a Non-Disclosure Agreement with the NYPD setting forth his or her undertaking that the proceedings of the Handschu Committee, as well as all materials reviewed by the Civilian Representative for or at the meetings of the Committee, shall be kept confidential and shall not be disclosed to any person except as set forth therein.
(d) The Civilian Representative shall be required to familiarize himself or herself with the Revised Handschu Guidelines governing the investigation of political activity by the NYPD.
(e) If the Civilian Representative concludes that an investigation is being opened, extended, or conducted in violation of the Revised Handschu Guidelines, or that the NYPD is otherwise violating the Revised Handschu Guidelines, the Civilian Representative shall record his or her concerns regarding the purported violation and/or his or her objection to the investigation and the grounds for the objection in the minutes of the Handschu Committee meeting.
(f) If the Civilian Representative concludes that an investigation is being opened, extended, or conducted in violation of the Revised Handschu Guidelines, the Civilian Representative shall bring such investigation to the attention of the Police Commissioner. The Civilian Representative shall be provided with means to present his or her conclusion to the Police Commissioner directly (hereafter, “a VI(5)(f) communication”). The Police Commissioner shall inquire into the investigation and report the findings of the inquiry to the Civilian Representative within seven (7) days after receipt of the VI(5)(f) communication.
(g) If the Civilian Representative has concerns about the NYPD’s compliance with the Revised Handschu Guidelines, and the Police Commissioner has not provided a timely response to the Civilian Representative’s VI(5)(f) communication regarding such concerns, or the Civilian Representative is not satisfied with the Police Commissioner’s response, the Civilian Representative may communicate those concerns to the Judge assigned to the Handschu case in the Southern District of New York at any time. In the event the Civilian Representative decides to communicate such concerns to the Court, a copy of the communication shall first be served confidentially upon the Police Commissioner, the Deputy Commissioner of Intelligence, and the Deputy Commissioner of Legal Matters seven (7) days prior to its submission to the Court. The Civilian Representative shall retain final authority over and responsibility for the content of the communication. Submission to the Court shall be effectuated in compliance with Section VI(5)(k) below.
(h) After complying with provision VI(5)(f) hereof, if the Civilian Representative concludes at any time that the NYPD is systematically and repeatedly violating the Revised Handschu Guidelines to a degree sufficient to show a NYPD policy to act in

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such a fashion, the Civilian Representative shall report the alleged systematic violation to the Judge assigned to the Handschu case in the Southern District of New York. In the event the Civilian Representative decides to communicate such concerns to the Court, a copy of the communication shall first be served confidentially upon the Police Commissioner, the Deputy Commissioner of Intelligence, and the Deputy Commissioner of Legal Matters seven (7) days prior to its submission to the Court, provided that the Civilian Representative shall retain final authority over and responsibility for the content of the communication. Submission to the Court shall be effectuated in compliance with Section VI(5)(k) below.
(i) In addition, the Civilian Representative shall file an annual report with the Court related to his or her actions and observations as a member of the Handschu Committee. The annual report will (A) indicate whether the Civilian Representative has objected to any investigations over that period and the basis for that objection; (B) state whether the NYPD has (i) substantially obtained timely approval for extending and closing investigations, (ii) substantially obtained timely approval for the use of human sources, and (iii) substantially fulfilled its obligation to review Preliminary Inquiries, Full Investigations, and Terrorism Enterprise Investigations every 6 months, as provided in sections V(B)(5), V(C)(4)(d) and V(D)(4)(d) hereof; and (C) address any communication during the annual period by the Civilian Representative to the Court under VI(5)(g) or (h). Prior to submission of the annual report to the Court, the Civilian Representative shall first serve copies confidentially to the Police Commissioner, Deputy Commissioner of Intelligence, and Deputy Commissioner of Legal Matters 21 days prior to submission to the Court, provided that the Civilian Representative shall retain final authority over and responsibility for the content of the report.
(j) The report and communications permitted under VI(5)(g), (h) and (i) will not include the number of investigations reviewed over the term, information deemed classified by the federal government, information obtained from other law enforcement or government agencies, information that reveals the identity of an individual or organization, information subject to the law enforcement privilege or other applicable privileges, or information that is otherwise protected by state or federal law.
(k) At the time that the Civilian Representative submits a communication or report to the Court pursuant to VI(5)(g), (h) or (i), notice of the Court’s receipt of a communication or report from the Civilian Representative shall be entered on the Court’s docket. The content of the communication or report to the Court shall, in the first instance, be maintained by the Court confidentially and under seal. The NYPD shall have 21 days from the filing of the communication or report to notify the Court (i) whether it contains privileged information or information that is prohibited from disclosure as set forth in VI(5)(j); (ii) if it believes such information can be protected through redaction of the document; or (iii) if it asserts the need to maintain the entire document confidentially and under seal. The Court shall adjudicate the propriety and scope of any such invocation. If the NYPD does not assert any such concerns about the information contained in the document, or if the Court determines that the document should be made public without redactions despite such objections by the NYPD, a copy of the report or communication

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shall be filed in the public docket and served on class counsel. If the Court determines that redactions can cure the need for the sealing of the entire document, a copy of the report or communication with the redactions shall be filed in the public docket and served on Class Counsel while the original submission by the Civilian Representative shall be maintained under seal. If the Court determines that the communication or report contains privileged information or information that is prohibited from disclosure as set forth in VI(5)(j) and that redaction cannot cure the need for the sealing of the entire document, the communication or report shall be maintained under seal and there shall be an entry on the Court’s docket that the communication or report is being maintained under seal.
(6) Nothing herein shall effect, limit, or diminish the authorization and approval provisions for investigations, which grant exclusive approval authority to the Authorizing Officials or the Deputy Commissioner of Intelligence.
VII. INVESTIGATIVE TECHNIQUES
(1) When conducting investigations under these guidelines, the NYPD may use any lawful investigative technique permitted by these guidelines. The choice of investigative techniques is a matter of judgment, which should take account of:
(i) the objectives of the investigation and available investigative resources;
(ii) the intrusiveness of a technique, considering such factors as the effect on the privacy of individuals and potential damage to reputation;
(iii) the potential effect on the political or religious activity of individuals, groups or organizations and the potential effect on persons who, although not a target of the investigation are affected by or subject to the technique;
(iv) the seriousness of the unlawful act; and
(v) the strength of the information indicating its existence or future commission of the unlawful act.
(2) Where the conduct of an investigation presents a choice between the use of more or less intrusive methods, the NYPD should consider whether the information could be obtained in a timely and effective way by the less intrusive means. The NYPD should not hesitate to use any lawful techniques consistent with these guidelines in an investigation, even if intrusive, where the intrusiveness is warranted in light of the seriousness of the crime or the strength of the information indicating its existence or future commission. This point is to be particularly observed in investigations relating to terrorist activities.
(3) Authorized methods in investigations include, among others, use of confidential informants, undercover activities and operations, eavesdropping and video surveillance (as defined in Article 700 of the NY Criminal Procedure Law), pen registers and trap and trace devices, consensual electronic monitoring, and searches and seizures.
a. Undercover Operations

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(i) Undercover operations, including confidential informants, may be used when taking into account all the circumstances of the investigation, including the need for the information and the seriousness of the threat, it has been determined that the information sought in the investigation could not be reasonably obtained in a timely and effective way by a less intrusive means. The use of undercovers and confidential informants must be authorized by the Deputy Commissioner of the Intelligence Bureau prior to commencement of the undercover operation. The request to use undercovers or confidential informants and action taken on the request must be in writing and must include a description of the facts on which the investigation is based and the role of the undercover.
(ii) The use of an undercover or confidential informant will be approved for a period of 90 days and may be extended for additional periods of 90 days with the approval of the Deputy Commissioner of the Intelligence Bureau. Such extensions may be approved for as long as the investigation continues when it has been determined that the information sought in the investigation could not reasonably be obtained in a timely and effective manner by less intrusive means. The request to extend the use of undercovers and action taken on the request must be in writing and must include the reason for the extension.
(iii) Undercovers are strictly prohibited from engaging in any conduct the sole purpose of which is to disrupt the lawful exercise of political activity, from instigating unlawful acts or engaging in unlawful or unauthorized investigative activities.
b. Eavesdropping and Video Surveillance (as defined in Article 700 of the NY Criminal Procedure Law), Pen Registers and Trap and Trace Devices, and Consensual Electronic Monitoring
(i) All requirements for the use of such methods under the Constitution, applicable statutes, and NYPD regulations or policies must be observed.
(4) Whenever an individual is known to be represented by counsel in a particular matter, the NYPD shall follow applicable law and Department procedure concerning contact with represented individuals in the absence of prior notice to their counsel.
VIII. DISSEMINATION AND MAINTENANCE OF INFORMATION A. Dissemination
The NYPD may disseminate information obtained during the Checking of Leads, Preliminary Inquiries and investigations conducted pursuant to these guidelines to federal, state or local law enforcement agencies, or local criminal justice agencies when such information:
(i) falls within the investigative or protective jurisdiction or litigative responsibility of the agency;
(ii) may assist in preventing an unlawful act or the use of violence or any other conduct dangerous to human life;

Case 2:12-cv-03401-WJM-MF Document 88 Filed 04/05/18 Page 28 of 30 PageID: 707
(iii) is required to be disseminated by interagency agreement, statute, or other law.
B. Maintenance
All documentation required under these Guidelines shall be maintained by the Intelligence Bureau in accordance with general police department practice and applicable municipal record retention and destruction rules, regulations and procedures. Under these rules and practices documents are retained for no less than five years.
IX. COUNTERTERRORISM ACTIVITIES AND OTHER AUTHORIZATIONS In order to carry out its mission of preventing the commission of terrorist acts in or affecting the City of New York and the United States and its people, the NYPD must proactively draw on available sources of information to identify terrorist threats and activities. It cannot be content to wait for leads to come in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by law, with an eye towards early intervention and prevention of acts of terrorism before they occur. This Part accordingly identifies a number of authorized activities which further this end, and which can be carried out even in the absence of a checking of leads, Preliminary Inquiry, or Full Investigation as described in these guidelines. The authorizations include both activities that are specifically focused on terrorism and activities that are useful for law enforcement purposes in both terrorism and non-terrorism contexts. The authorized law enforcement activities of the NYPD include carrying out and retaining information resulting from the following activities.
A. COUNTERTERRORISM ACTIVITIES 1. Information Systems The NYPD is authorized to operate and participate in identification, tracking, and information systems for the purpose of identifying and locating potential terrorists and supporters of terrorist activity, assessing and responding to terrorist risks and threats, or otherwise detecting, prosecuting, or preventing terrorist activities. Systems within the scope of this paragraph may draw on and retain pertinent information from any source permitted by law, including information derived from past or ongoing investigative activities; other information collected or provided by governmental entities, such as foreign intelligence information and lookout list information; publicly available information, whether obtained directly or through services or resources (whether nonprofit or commercial) that compile or analyze such information; and information voluntarily provided by private entities. Any such system operated by the NYPD shall be reviewed periodically for compliance with all applicable statutory provisions and Department regulations and policies.
2. Visiting Public Places and Events For the purpose of detecting or preventing terrorist activities, the NYPD is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally. No information obtained from such visits shall be retained unless it relates to potential unlawful or terrorist activity.
B. OTHER AUTHORIZATIONS

Case 2:12-cv-03401-WJM-MF Document 88 Filed 04/05/18 Page 29 of 30 PageID: 708
1. General Topical Research The NYPD is authorized to carry out general topical research, including conducting online searches and accessing online sites and forums as part of such research on the same terms and conditions as members of the public generally. “General topical research” under this paragraph means research concerning subject areas that are relevant for the purpose of facilitating or supporting the discharge of investigative responsibilities. It does not include online searches for information by individuals’ names or other individual identifiers, except where such searches are incidental to topical research, such as searching to locate writings on a topic by searching under the names of authors who write on the topic, or searching by the name of a party to a case in conducting legal research.
2. Use of Online Resources Generally For the purpose of developing intelligence information to detect or prevent terrorism or other unlawful activities, the NYPD is authorized to conduct online search activity and to access online sites and forums on the same terms and conditions as members of the public generally.
3. Reports and Assessments The NYPD is authorized to prepare general reports and assessments concerning terrorism or other unlawful activities for purposes of strategic or operational planning or in support of other legitimate law enforcement activities.
X. PROTECTION OF PRIVACY AND OTHER LIMITATIONS A. General Limitations The law enforcement activities authorized by this Part do not include maintaining files on individuals solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States. Rather, all such law enforcement activities must have a valid law enforcement purpose and must be carried out in conformity with all applicable statutes and Department regulations and policies.
B. Construction of Part This Part does not limit any activities authorized by or carried out under other Parts of these guidelines. The specification of authorized law enforcement activities under this Part is not exhaustive, and does not limit other authorized law enforcement activities of the NYPD.
XI. RESERVATION Nothing in these guidelines shall limit the general reviews or audits of papers, files, contracts, or other records in the possession of the NYPD or City of New York, or the performance of similar services at the specific request of another government agency. Such reviews, audits, or similar services must be for the purpose of detecting or preventing violations of law which are within the investigative responsibility of the NYPD.
Nothing in these guidelines is intended to limit the NYPD's responsibilities to investigate certain applicants and employees, or to pursue efforts to satisfy any other of its legal rights, privileges,

Case 2:12-cv-03401-WJM-MF Document 88 Filed 04/05/18 Page 30 of 30 PageID: 709
or obligations. These guidelines are set forth solely for the purpose of internal NYPD guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural; enforceable at law by any party in any matter, civil or criminal, nor do they place any limitation on otherwise lawful investigative and litigative prerogatives of the NYPD or City of New York.

 
 Case 2:12-cv-03401-WJM-MF Document 89 Filed 04/11/18 Page 1 of 2 PageID: 710

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
x

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; ZAIMAR ABDUR-RAHIM; and ABDUL HAKIM ABDULLAH,

STIPULATION AND ORDER OF DISMISSAL
12-C V-3401 (WJM)(MF)

-againstTHE CITY Of NEW YORK,

Plaintiffs,
Defendant. x

WhEREAS, the Defendant City of New York (“Defendant”) and Plaintiffs 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, Zaimah Abdur-Rahim, and Abdul-Hakim Abdullah (collectively, “Plaintiffs”) have reached a settlement agreement and now desire to resolve the remaining issues raised in this litigation, without further proceedings and without admitting any fault or liability;

Case 2:12-cv-03401-WJM-MF Document 89 Filed 04/11/18 Page 2 of 2 PageID: 711

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by Plaintiffs and Defendant, that the above-referenced action is hereby dismissed with prejudice.

COUNSEL FOR DEFENDANT

COUNSEL FOR PLAINTIFFS

ZACHARY W. CARTER Corporation Counsel of the
City of New York
By: _s/ Peter G. Farrell Peter G. Farrell Deputy Division Chief 100 Church Street New York, New York 10007 T: (212) 356-3532

By: si Baher A. Azmy Baher A. Azmy Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 T: 212-614-6464
By: si Lawrence S. Lustberg Lawrence S. Lustberg Gibbons P.C. One Gateway Center Newark, New Jersey 07102-53 10 T: 973-596-4500
By: _s/ farhana Khera Farhana Khera Muslim Advocates P.O. Box 71080 Oakland, CA 94612 T: 415-692-1484

SO ORDERED:

TSTATES1TRT JUDGE Dpri0

 
 U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:12-cv-03401-WJM-MF

HASSAN et al v. THE CITY OF NEW YORK Assigned to: Judge William J. Martini Referred to: Magistrate Judge Mark Falk
Case in other court: Third Circuit, 14-01688 Cause: 42:1983 Civil Rights Act

Date Filed: 06/06/2012 Date Terminated: 02/20/2018 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Movant GINA ROMANO

represented by GINA ROMANO 143 ROEBLING ST. BROOKLYN, NY PRO SE

Plaintiff SYED FARHAJ HASSAN

represented by BAHER AZMY CENTER FOR CONSTITUTIONAL RIGHTS 666 BROADWAY 7TH FLOOR NEW YORK, NY 10012 212-614-6464 Email: bazmy@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAWRENCE S. LUSTBERG GIBBONS, PC ONE GATEWAY CENTER NEWARK, NJ 07102-5310 (973) 596-4731 Email: llustberg@gibbonslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

RAVINDER S. BHALLA Florio Perrucci Steinhardt & Fader, LLC 218 Route 17 North Suite 410

Plaintiff THE COUNCIL OF IMAMS IN NEW JERSEY
Plaintiff MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC.
Plaintiff ALL BODY SHOP INSIDE & OUTSIDE

Rochelle Park, NJ 07662 (201) 843-5858 Fax: 201-843-2032 Email: rbhalla@fpsflawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff UNITY BEEF SAUSAGE COMPANY
Plaintiff MUSLIM FOUNDATION INC.
Plaintiff

LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MOIZ MOHAMMED
Plaintiff JANE DOE
Plaintiff SOOFIA TAHIR TERMINATED: 11/02/2017

represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA

Plaintiff ZAIMAH ABDUR-RAHIM
Plaintiff ABDUL-HAKIM ABDULLAH
V. Defendant THE CITY OF NEW YORK

(See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) ATTORNEY TO BE NOTICED
represented by BAHER AZMY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE S. LUSTBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RAVINDER S. BHALLA (See above for address) ATTORNEY TO BE NOTICED
represented by PETER GERARD FARRELL NEW YORK CITY LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 212-356-3532 Email: pfarrell@law.nyc.gov

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

06/06/2012

1 COMPLAINT against THE CITY OF NEW YORK (Filing fee $ 350) with JURY DEMAND, filed by MUSLIM FOUNDATION INC., THE COUNCIL OF IMAMS IN NEW JERSEY, ALL BODY SHOP INSIDE & OUTSIDE, UNITY BEEF SAUSAGE COMPANY, JANE DOE, SYED FARHAJ HASSAN, MOIZ MOHAMMED, MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC.. (Attachments: # 1 Supplement, # 2 Civil Cover Sheet)(ld, ) (Entered: 06/07/2012)

06/06/2012

2 Corporate Disclosure Statement by ALL BODY SHOP INSIDE & OUTSIDE, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY identifying NONE as Corporate Parent.. (ld, ) (Entered: 06/07/2012)

06/07/2012

3 SUMMONS ISSUED as to THE CITY OF NEW YORK Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. Issued By *LEROY DUNBAR* (ld, ) (Entered: 06/07/2012)

06/11/2012 4 APPLICATION/MOTION to Intervene as Pltf. by GINA ROMANO. (sr, ) (Entered: 06/11/2012)

06/28/2012

5 MOTION for Leave to Appear Pro Hac Vice by ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC.. (Attachments: # 1 Motion, # 2 Certification of Glenn Katon, # 3Certification of Farhana Khan, # 4 Certification of Ravinder S. Bhalla, # 5 Text of Proposed Order)(BHALLA, RAVINDER) (Entered: 06/28/2012)

06/28/2012

Set Deadline as to 5 MOTION for Leave to Appear Pro Hac Vice . Motion set for 8/6/2012 before Judge Susan D. Wigenton. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 06/28/2012)

07/19/2012

6 RESPONSE in Opposition filed by ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC. re 5 MOTION for Leave to Appear Pro

Hac Vice Corrected: Motion to Intervene(Attachments: # 1 Text of Proposed Order)(BHALLA, RAVINDER) (Entered: 07/19/2012)

07/31/2012

7 ORDER granting 5 Motion for Leave to Appear Pro Hac Vice re: Glenn Katon & Farhana Khera. Signed by Magistrate Judge Madeline C. Arleo on 7/30/12. (sr, ) (Entered: 07/31/2012)

08/14/2012

Pro Hac Vice fee: $ 300, receipt number NEW014337 Re: Farhana Khera & Glenn Katon. (sr, ) (Entered: 08/14/2012)

08/28/2012 8 NOTICE of Appearance by RAVINDER S. BHALLA on behalf of All Plaintiffs (BHALLA, RAVINDER) (Entered: 08/28/2012)

09/20/2012

9 Request for Summons to be Issued by MUSLIM FOUNDATION INC., ALL BODY SHOP INSIDE & OUTSIDE, JANE DOE, SYED FARHAJ HASSAN, MOIZ MOHAMMED, MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC. as to All Plaintiffs. (BHALLA, RAVINDER) (Entered: 09/20/2012)

10/03/2012 10 AMENDED COMPLAINT against THE CITY OF NEW YORK, filed by MUSLIM FOUNDATION INC., THE COUNCIL OF IMAMS IN NEW JERSEY, ALL BODY SHOP INSIDE & OUTSIDE, UNITY BEEF SAUSAGE COMPANY, JANE DOE, SYED FARHAJ HASSAN, MOIZ MOHAMMED, MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SOOFIA TAHIR, ZAIMAH ABDUR-RAHIM, ABDULHAKIM ABDULLAH.(BHALLA, RAVINDER) (Entered: 10/03/2012)

10/17/2012 11 AFFIDAVIT of Service for Summons, Amended Complaint served on City of New York on 10/4/12, filed by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SOOFIA TAHIR, THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY. (BHALLA, RAVINDER) (Entered: 10/17/2012)

10/19/2012

Answer Due Deadline Update - RE: 11 Affidavit of Service as to THE CITY OF NEW YORK. The answer due date has been set for 10/25/12. (sr, ) (Entered: 10/19/2012)

10/22/2012 12 Application and Proposed Order for Clerk's Order to extend time to answer Attorney PETER G. FARRELL for THE CITY OF NEW YORK added. (FARRELL, PETER) (Entered: 10/22/2012)

10/23/2012

Clerk`s Text Order - The document 12 Application for Clerk's Order to Ext Answer/Proposed Order submitted by THE CITY OF NEW

YORK has been GRANTED. The answer due date has been set for 11/8/12. (sr, ) (Entered: 10/23/2012)

11/06/2012 13 MOTION for Extension of Time to File Answer by THE CITY OF NEW YORK. (FARRELL, PETER) (Entered: 11/06/2012)

11/07/2012 14 ORDER extending defts time to answer amended complaint until 12/6/12. Signed by Judge Susan D. Wigenton on 11/7/12. (sr, ) (Entered: 11/08/2012)

12/06/2012 15 MOTION to Dismiss First Amended Complaint pursuant to FRCP 12(b)(6) and 12(b)(1) by THE CITY OF NEW YORK. Responses due by 12/26/2012 (Attachments: # 1Brief in Support of Motion To Dismiss, # 2 Declaration of Peter G. Farrell with Exhibits, # 3 Text of Proposed Order, # 4 Certificate of Service)(FARRELL, PETER) (Entered: 12/06/2012)

12/07/2012

Set Deadline as to 15 MOTION to Dismiss First Amended Complaint pursuant to FRCP 12(b)(6) and 12(b)(1). Motion set for 1/7/2013 before Judge Susan D. Wigenton. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 12/07/2012)

12/18/2012 16 Letter re 15 MOTION to Dismiss First Amended Complaint pursuant to FRCP 12(b)(6) and 12(b)(1). (BHALLA, RAVINDER) (Entered: 12/18/2012)

12/27/2012 17 TEXT ORDER granting 16 letter request. Ordered by Judge Susan D. Wigenton on 12/27/12. (ak, ) (Entered: 12/27/2012)

12/31/2012 18 NOTICE of Appearance by BAHER AZMY on behalf of All Plaintiffs (AZMY, BAHER) (Entered: 12/31/2012)

01/04/2013 19 Notice of Request by Pro Hac Vice Glenn Katon to receive Notices of Electronic Filings. (BHALLA, RAVINDER) (Entered: 01/04/2013)

01/04/2013 20 Notice of Request by Pro Hac Vice Farhana Khera to receive Notices of Electronic Filings. (BHALLA, RAVINDER) (Entered: 01/04/2013)

01/25/2013 21 MOTION for Leave to Appear Pro Hac Vice by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SOOFIA TAHIR, THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY. (Attachments: # 1 Certification Azmy Cert in Support of Pro Hac

Appearances, # 2 Certification Farah Cert in Support of Pro Hac Appearance, # 3 Certification Schwarz Cert in Support of Pro Hac Apperance)(AZMY, BAHER) (Entered: 01/25/2013)

01/25/2013 22 BRIEF in Opposition filed by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SOOFIA TAHIR, THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY re 15 MOTION to Dismiss First Amended Complaint pursuant to FRCP 12(b)(6) and 12(b)(1) (Attachments: # 1 Declaration Decl. of Glenn Katon, Esq., # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F)(AZMY, BAHER) (Entered: 01/25/2013)

01/25/2013

CLERK'S TEXT NOTE - DOCKET ENTRY NO. 21 WAS SUBMITTED IN ERROR. PLEASE DISREGARD. (dc, ) (Entered: 01/28/2013)

01/28/2013 23 MOTION for Leave to Appear Pro Hac Vice by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SOOFIA TAHIR, THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY. (Attachments: # 1 Certification Azmy Cert in Support of Pro Hac Appearances, # 2 Certification Farah Cert in Support of Pro Hac Appearance, # 3 Certification Schwarz Cert in Support of Pro Hac Apperance, # 4 Text of Proposed Order Proposed Order Re Farah & Schwarz Pro Hac Appearance)(AZMY, BAHER) (Entered: 01/28/2013)

01/30/2013

Set Deadline as to 23 MOTION for Leave to Appear Pro Hac Vice . Motion set for 3/4/2013 before Judge Susan D. Wigenton. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 01/30/2013)

01/31/2013 24 ORDER granting 23 Motion for Leave to Appear Pro Hac Vice RE: Omar Farah & Ghita Schwarz. Signed by Magistrate Judge Madeline C. Arleo on 1/30/13. (sr, ) (Entered: 01/31/2013)

02/11/2013 25 MOTION for Extension of Time to File Response/Reply on Defendant's Motion to Dismiss the First Amended Complaint by THE CITY OF NEW YORK. (FARRELL, PETER) (Entered: 02/11/2013)

02/11/2013 26 ORDER granting an extension of time for the City of NY to submit reply on its' Motion to Dismiss the Amended Complaint until 2/22/13. Signed by Judge Susan D. Wigenton on 2/11/13. (sr, ) (Entered: 02/13/2013)
02/13/2013 27 Mail Returned as Undeliverable. Mail sent to Gina Romano (sr, ) (Entered: 02/13/2013)
02/19/2013 28 Notice of Request by Pro Hac Vice Ghita Schwarz to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 03124837914.) (AZMY, BAHER) (Entered: 02/19/2013)
02/19/2013 29 Notice of Request by Pro Hac Vice Omar A. Farah to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 03124837986.) (AZMY, BAHER) (Entered: 02/19/2013)
02/19/2013 30 ORDER permitting deft City of NY an extension of time to submit reply Re: Motion to Dismiss until 2/22/13. Signed by Judge Susan D. Wigenton on 2/19/13. (sr, ) (Entered: 02/21/2013)
02/22/2013 31 Consent MOTION for Extension of Time to File Response/Reply Brief on Defendant's Motion to Dismiss, Consent MOTION for Leave to File Excess Pages on Reply Briefby THE CITY OF NEW YORK. (FARRELL, PETER) (Entered: 02/22/2013)
02/22/2013 32 ORDER granting the City of NY's request for an an extension of time to submit a reply on its' motion to dismiss until 2/22/13. Signed by Magistrate Judge Madeline C. Arleo on 2/20/13. (sr, ) (Entered: 02/22/2013)
02/22/2013 33 TEXT ORDER re 31 Consent MOTION for Extension of Time to File Response/Reply Brief on Defendant's Motion to Dismiss Consent MOTION for Leave to File Excess Pages on Reply Brief filed by THE CITY OF NEW YORK; is hereby GRANTED.ORDERED by Judge Susan D. Wigenton on 2/22/13. (cds, ) (Entered: 02/22/2013)
02/25/2013 34 REPLY BRIEF to Opposition to Motion filed by THE CITY OF NEW YORK re 15 MOTION to Dismiss First Amended Complaint pursuant to FRCP 12(b)(6) and 12(b)(1) (FARRELL, PETER) (Entered: 02/25/2013)
02/26/2013 35 Mail Returned as Undeliverable. Mail sent to Gina Romano (sr, ) (Entered: 02/26/2013)
04/22/2013 36 ORDER REASSIGNING CASE. Case reassigned to Judge William J. Martini and Magistrate Judge Mark Falk for all further proceedings.

Judge Susan D. Wigenton, Magistrate Judge Madeline C. Arleo no longer assigned to case. Signed by Chief Judge Jerome B. Simandle on 4/22/13. (ak, ) (Entered: 04/23/2013)
05/23/2013 37 Letter from Baher Azmy to Judge Martini. (AZMY, BAHER) (Entered: 05/23/2013)
05/30/2013 38 Letter from B. Azmy Regarding Supplemental Authority. (AZMY, BAHER) (Entered: 05/30/2013)
08/09/2013 39 Letter from Baher Azmy, Esq., counsel for Plaintiffs. (AZMY, BAHER) (Entered: 08/09/2013)
02/20/2014 40 OPINION. Signed by Judge William J. Martini on 2/20/14. (gh, ) (Entered: 02/20/2014)
02/20/2014 41 ORDER granting 15 Motion to Dismiss ***CIVIL CASE TERMINATED. Signed by Judge William J. Martini on 2/20/14. (gh, ) (Entered: 02/20/2014)
03/21/2014 42 NOTICE OF APPEAL as to 40 Opinion, 41 Order on Motion to Dismiss by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SOOFIA TAHIR, THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY. Filing fee $ 505, receipt number 03125575520. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (AZMY, BAHER) (Entered: 03/21/2014)
03/24/2014 43 USCA Case Number 14-1688 for 42 Notice of Appeal (USCA) filed by ALL BODY SHOP INSIDE & OUTSIDE, ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, MUSLIM FOUNDATION INC., UNITY BEEF SAUSAGE COMPANY, MOIZ MOHAMMED, THE COUNCIL OF IMAMS IN NEW JERSEY, MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., SYED FARHAJ HASSAN, JANE DOE, SOOFIA TAHIR. USCA Case Manager Tina (Document Restricted - Court Only)(ca3tmk) (Entered: 03/24/2014)
11/04/2015 44 MANDATE of USCA as to 42 Notice of Appeal (USCA),, filed by ALL BODY SHOP INSIDE & OUTSIDE, ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, MUSLIM FOUNDATION INC., UNITY BEEF SAUSAGE COMPANY, MOIZ MOHAMMED, THE COUNCIL OF IMAMS IN NEW JERSEY, MUSLIM STUDENTS ASSOCIATION OF THE U.S.

AND CANADA, INC., SYED FARHAJ HASSAN, JANE DOE, SOOFIA TAHIR (Finance notified) (Attachments: # 1Opinion, # 2 Clerk Letter to District Court)(om3) (Entered: 11/04/2015)

11/06/2015

Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 11/4/15. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (gh, ) (Entered: 11/06/2015)

11/06/2015 45 ORDER on mandate; case reopened. Signed by Judge William J. Martini on 11/6/15. (gh, ) (Entered: 11/06/2015)

11/17/2015 46 MOTION for Extension of Time to File Answer by THE CITY OF NEW YORK. (FARRELL, PETER) (Entered: 11/17/2015)

11/18/2015 47 ORDER granting extension of time to answer the First Amended Complaint to December 18, 2015. Signed by Magistrate Judge Mark Falk on 11/18/15. (LM, ) (Entered: 11/18/2015)

12/16/2015 48 Second MOTION for Extension of Time to File Answer by THE CITY OF NEW YORK. (FARRELL, PETER) (Entered: 12/16/2015)

12/17/2015 49 Letter from Baher Azmy to Judge Martini in opposition to 48 application for extension of time. (AZMY, BAHER) (Entered: 12/17/2015)

12/18/2015 50 TEXT ORDER: Per the conference call held this morning, Defendants shall answer the amended complaint on or before January 15, 2016. So Ordered by Magistrate Judge Mark Falk on 12/18/15. (LM, ) (Entered: 12/18/2015)

01/15/2016 51 ANSWER to Amended Complaint by THE CITY OF NEW YORK.(FARRELL, PETER) (Entered: 01/15/2016)

02/02/2016 52 ORDER: Scheduling Conference set for 3/2/2016 at 11:00 AM in Newark - Courtroom 9 before Magistrate Judge Mark Falk. Signed by Magistrate Judge Mark Falk on 2/2/16. (LM, ) (Entered: 02/02/2016)

02/18/2016 53 Letter from Defendant and Plaintiffs Jointly Requesting Extension. (FARRELL, PETER) (Entered: 02/18/2016)

02/18/2016 54 TEXT ORDER: Upon review of the letter dated February 18, 2016, the joint requests for an extension of applicable deadlines and to adjourn the March 2, 2016 conference are GRANTED. There shall be

a status conference via telephone before the Undersigned on March 29, 2016, at 10:00 a.m. Defendant's counsel shall arrange and initiate the conference call. So Ordered by Magistrate Judge Mark Falk on 2/18/16. (LM, ) (Entered: 02/18/2016)

02/18/2016 55 NOTICE of Appearance by LAWRENCE S. LUSTBERG on behalf of ABDUL-HAKIM ABDULLAH, MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., THE COUNCIL OF IMAMS IN NEW JERSEY (LUSTBERG, LAWRENCE) (Entered: 02/18/2016)

02/18/2016 56 NOTICE of Appearance by LAWRENCE S. LUSTBERG on behalf of ALL BODY SHOP INSIDE & OUTSIDE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., UNITY BEEF SAUSAGE COMPANY (LUSTBERG, LAWRENCE) (Entered: 02/18/2016)

02/18/2016 57 NOTICE of Appearance by LAWRENCE S. LUSTBERG on behalf of ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, JANE DOE, SOOFIA TAHIR (LUSTBERG, LAWRENCE) (Entered: 02/18/2016)

02/18/2016 58 NOTICE of Appearance by LAWRENCE S. LUSTBERG on behalf of SYED FARHAJ HASSAN (LUSTBERG, LAWRENCE) (Entered: 02/18/2016)

03/18/2016 59 Letter from Lawrence Lustberg. (LUSTBERG, LAWRENCE) (Entered: 03/18/2016)

03/28/2016 60 Letter from Lawrence S. Lustberg. (Attachments: # 1 Declaration of Aziz Huq, # 2 Declaration of Lawrence S. Lustberg, # 3 Text of Proposed Order, # 4 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 03/28/2016)

03/29/2016 61 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on June 14, 2016 at 11:30 a.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 3/29/16. (LM, ) (Entered: 03/29/2016)

03/29/2016 62 ORDER permitting Aziz Huq to appear pro hac vice. Signed by Magistrate Judge Mark Falk on 3/29/16. (sr, ) (Entered: 03/29/2016)

03/29/2016

Pro Hac Vice fee: $ 150, receipt number NEW029142 RE: Aziz Huq (sr, ) (Entered: 03/30/2016)

03/29/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 3/29/2016. (LM, ) (Entered: 03/31/2016)

03/30/2016 63 Letter from Lawrence S. Lustberg. (Attachments: # 1 Text of Proposed Order)(LUSTBERG, LAWRENCE) (Entered: 03/30/2016)

04/01/2016 64 Notice of Request by Pro Hac Vice Aziz Huq to receive Notices of Electronic Filings. (LUSTBERG, LAWRENCE) (Entered: 04/01/2016)

04/01/2016

Pro Hac Vice counsel, AZIZ HUQ, has been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and file papers, enter appearances and receive payments on judgments, decrees or orders. (sr, ) (Entered: 04/01/2016)

04/01/2016 65 CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge Mark Falk on 3/31/16. (sr, ) (NM) (Entered: 04/01/2016)

06/14/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 6/14/2016. (LM, ) (Entered: 07/06/2016)

06/16/2016 66 Letter from Lawrence S. Lustberg. (Attachments: # 1 Text of Proposed Order)(LUSTBERG, LAWRENCE) (Entered: 06/16/2016)

06/21/2016 67 CONSENT ORDER, that discovery in this matter shall be stayed for an additional periodof 90 days, in order so that the parties can continue to exchange information informally and discuss a potential amicable resolution of this matter, and scheduling a telephone Status Conference on 9/13/2016 10:00 AM before Magistrate Judge Mark Falk. Signed by Magistrate Judge Mark Falk on 6/20/16. (sr, ) (Entered: 06/21/2016)

07/07/2016 68 Mail Returned as Undeliverable. Mail sent to Gina Romano (sr, ) (Entered: 07/08/2016)

09/13/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 9/13/2016. (LM, ) (Entered: 09/13/2016)

09/13/2016 69 ORDER scheduling an in-person conference on 12/20/16 at 10:30 a.m. Signed by Magistrate Judge Mark Falk on 9/13/16. (sr, ) (Entered: 09/13/2016)

10/18/2016 70 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on October 20, 2016 at 2:45 p.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 10/18/16. (LM, ) (Entered: 10/18/2016)

10/20/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 10/20/2016. (LM, ) (Entered: 10/24/2016)

12/19/2016 71 Letter from Lawrence S. Lustberg. (LUSTBERG, LAWRENCE) (Entered: 12/19/2016)

12/19/2016 72 TEXT ORDER: Please be advised that the in-person conference before the Undersigned on December 20, 2016 will now proceed as a telephone conference at 10:30 a.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 12/19/16. (LM, ) (Entered: 12/19/2016)

12/20/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 12/20/2016. (LM, ) (Entered: 01/03/2017)

12/22/2016 73 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on February 10, 2017 at 3:15 p.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 12/22/16. (LM, ) (Entered: 12/22/2016)

01/30/2017 74 TEXT ORDER: Please be advised that the telephone conference before the Undersigned on 2/10/2017 is hereby rescheduled to February 22, 2017 at 3:00 p.m. The same requirements stated in the Court's prior order apply. Ordered by Magistrate Judge Mark Falk on 1/30/17.(LM, ) (Entered: 01/30/2017)

02/22/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 2/22/2017. (LM, ) (Entered: 02/23/2017)

02/23/2017 75 ORDER, scheduling an in-person Settlement Conference on 4/18/2017 02:30 PM before Magistrate Judge Mark Falk. Signed by Magistrate Judge Mark Falk on 2/23/17. (sr, ) (Entered: 02/23/2017)

04/17/2017 76 Letter from Lawrence S. Lustberg. (LUSTBERG, LAWRENCE) (Entered: 04/17/2017)

04/18/2017 77 TEXT ORDER: Please be advised that the in-person conference before the Undersigned on 4/18/17 is hereby rescheduled to May 23, 2017 at 9:45 a.m. The same requirements stated in the Court's prior order apply. Ordered by Magistrate Judge Mark Falk on 4/18/17.(LM, ) (Entered: 04/18/2017)

05/19/2017 78 Letter from Peter G. Farrell. (FARRELL, PETER) (Entered: 05/19/2017)

05/22/2017 79 TEXT ORDER: Please be advised that the in-person conference before the Undersigned on May 23, 2017 will now proceed as a telephone conference at 9:45 a.m. Counsel for Defendant City of New York is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 5/22/17. (LM, ) (Entered: 05/22/2017)

05/23/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 5/23/2017. (LM, ) (Entered: 05/23/2017)

05/23/2017 80 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on June 15, 2017 at 3:00 p.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 5/23/17. (LM, ) (Entered: 05/23/2017)

06/15/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 6/15/2017. (LM, ) (Entered: 06/16/2017)

06/19/2017 81 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on July 19, 2017 at 3:30 p.m. Defendant's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 6/19/17. (LM, ) (Entered: 06/19/2017)

07/19/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 7/19/2017. (LM, ) (Entered: 07/19/2017)

09/08/2017 82 Letter from BAHER AZMY. (AZMY, BAHER) (Entered: 09/08/2017)

10/02/2017 83 ORDER, scheduling an in-person Settlement Conference on 10/11/2017 02:00 PM before Magistrate Judge Mark Falk. Signed by Magistrate Judge Mark Falk on 10/2/17. (sr, ) (Entered: 10/02/2017)

10/11/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Settlement Conference held on 10/11/2017. (LM, ) (Entered: 10/24/2017)

11/01/2017 84 STIPULATION of Dismissal by SOOFIA TAHIR. (LUSTBERG, LAWRENCE) (Entered: 11/01/2017)

02/15/2018 85 ORDER scheduling an in-person conference on 2/20/18 at 10:00 a.m. Signed by Magistrate Judge Mark Falk on 2/15/18. (sr, ) (Entered: 02/15/2018)

02/20/2018 86 Order Administratively Terminating Action - 60 Day, Pending Consummation of Settlement. Administrative Termination deadline set for 4/23/2018. Signed by Judge William J. Martini on 2/20/18. (gh, ) (Entered: 02/20/2018)

02/20/2018

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Settlement Conference held on 2/20/2018. (LM, ) (Entered: 02/22/2018)

04/05/2018 87 STIPULATION of Dismissal by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY. (AZMY, BAHER) (Entered: 04/05/2018)

04/05/2018 88 STIPULATION OF SETTLEMENT by ABDUL-HAKIM ABDULLAH, ZAIMAH ABDUR-RAHIM, ALL BODY SHOP INSIDE & OUTSIDE, SYED FARHAJ HASSAN, JANE DOE, MOIZ MOHAMMED, MUSLIM FOUNDATION INC., MUSLIM STUDENTS ASSOCIATION OF THE U.S. AND CANADA, INC., THE COUNCIL OF IMAMS IN NEW JERSEY, UNITY BEEF SAUSAGE COMPANY. (AZMY, BAHER) (Entered: 04/05/2018)

04/11/2018 89 STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge William J. Martini on 4/11/18. (gh, ) (Entered: 04/11/2018)

 
 804 F.3d 277 (2015)
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; Abdul-Hakim Abdullah, Appellants v.
The CITY OF NEW YORK.
No. 14-1688.
United States Court of Appeals, Third Circuit.
Argued January 13, 2015. Opinion filed: October 13, 2015.
282*282 Baher A. Azmy, Esquire, (Argued), Ghita Schwarz, Esquire, Omar Farah, Esquire, Center for Constitutional Rights, New York, N.Y., Glenn Katon, Esquire, Farhana Khera, Esquire, Adil Haq, Esquire, Muslim Advocates, Oakland, CA, Lawrence S. Lustberg, Esquire, Joseph A. Pace, Esquire, Portia Dolores Pedro, Esquire, Gibbons, Newark, NJ, Counsel for Appellants.
Zachary W. Carter, Corporation Counsel of the City of New York, Richard P. Dearing, Esquire, Peter G. Farrell, Esquire, (Argued), Celeste Koeleveld, Esquire, Alexis Leist, Esquire, Anthony DiSenso, Esquire, William Oates, Esquire, Cheryl Shammas, Esquire, Odile Farrell, Esquire, New York City Law Department, New York, N.Y., Counsel for Appellee.
Ayesha N. Khan, Esquire, Gregory M. Lipper, Esquire, Alexander J. Luchenitser, Esquire, Americans United for Separation of Church and State, Washington, DC, Counsel for Amicus Appellant, Americans United for Separation of Church and State.
Benjamin C. Block, Esquire, William Murray, Esquire, Covington & Burling LLP, Washington, DC, Stephen J. Schulhofer, Esquire, New York, N.Y., Robert L. Rusky, Esquire, San Francisco, CA, Counsel for Amicus Appellants, Karen Korematsu, Jay Hirabayashi, Holly Yasui.
283*283 Brian D. Boyle, Esquire, Walter E. Dellinger, III, Esquire, Deanna M. Rice, Esquire, Nausheen Hassan, Esquire, O'Melveny & Myers LLP, Washington, DC, Counsel for Amicus Appellants, 100 Blacks in Law Enforcement Who Care, Chris Burbank, Eric Adams.

Gregory J. Wallance, Esquire, W. Stewart Wallace, Esquire, Kaye Scholer LLP, New York, N.Y., Michael Robertson, Esquire, Kaye Scholer LLP, Washington, DC, Counsel for Amicus Appellants, Asian American Legal Defense and Education Fund, American Arab AntiDiscrimination Committee, Universal Muslim Association of America Advocacy, South Asian Americans Leading Together, Shia Rights Watch, New Jersey Muslim Lawyers Association, National Network for Arab American Communities, National Lawyers Guild New York City Chapter, Muslim Public Affairs Council, Muslim Legal Fund of America, Muslim Consultative Network, Muslim Bar Association of New York, Muslim American Civil Liberties Coalition, Creating Law Enforcement Accountability and Responsibility, Arab American Association of New York, Asian Americans Advancing Justice-Asian Law Caucus, South Asian Organization, Project SALAM.
Ronald K. Chen, Esquire, Rutgers University Constitutional Rights Clinic, Newark, NJ, Edward Barocas, Esquire, Jeanne LoCicero, Esquire, Alexander Shalom, Esquire, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, Counsel for Amicus Appellants, American Civil Liberties Union of New Jersey, LatinoJustice PRLDEF, Mexican American Legal Defense and Educational Fund, Bill of Rights Defense Committee, Garden State Bar, Association, Hispanic Bar Association of New Jersey, Association of Black Women Lawyers of New Jersey.
Bruce D. Brown, Esquire, Gregg P. Leslie, Esquire, Jamie T. Schuman, Esquire, Reporters Committee for Freedom of the Press, Arlington, VA, Jennifer A. Borg, Esquire, North Jersey Media Group Inc., Woodland Park, NJ, Counsel for Amicus Appellants, Reporters Committee for Freedom of the Press, North Jersey Media Group Inc.
Michael W. Price, Esquire, Faiza Patel, Esquire, Brennan Center for Justice at NYU School of Law, New York, N.Y., Counsel for Amicus Appellant, Brennan Center for Justice at New York University School of Law
Allen P. Pegg, Esquire, Hogan Lovells U.S. LLP, Miami, FL, Counsel for Amicus Appellants, Sikh Coalition, Interfaith Alliance Foundation, National Council of the Churches of Christ in the USA, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Islamic Society of North America, Bend the Arc: A Jewish Partnership for Justice, Hindu Temple Society of North America, Auburn Theological Seminary, National Council of Jewish Women, Universal Muslim Association of America, American Humanist Association, Sikh American Legal Defense and Education Fund, Muslim Alliance in North America National Religious Campaign Against Torture, Reconstructionist Rabbinical Association, Imam Mahdi Association of Marjaeya, Muslims for Peace, T'ruah: The Rabbinic Call for Human Rights, Ta'leef Collective, Muslim Congress, Unitarian Universalist Legislative Ministry of New Jersey, Queens Federation of Churches, Inc., Northern California

Islamic Council, Council of Islamic Organization of Greater Chicago, Islamic Shura Council of Southern California.

Before: AMBRO, FUENTES, and ROTH, Circuit Judges.
284*284 OPINION OF THE COURT

AMBRO, Circuit Judge.

TABLE OF CONTENTS I. INTRODUCTION

284 II. BACKGROUND

285

A. Plaintiffs' Allegations

285

1. The Program

285

2. Reports and Informational Databases

286

3. Fall-Out from the Program's Disclosure to the

Public

287

B. District Court

288 III. STANDING

289

A. Injury-in-Fact

289

B. Fair Traceability

292

C. Redressability

293 IV. CONSTITUTIONAL CLAIMS

294

A. Equal-Protection Claim

294

1. Do Plaintiffs Plausibly Allege Intentional

Discrimination?

294

i. Plaintiffs Plausibly

Allege a Surveillance Program with a

Facially

Religious Classification

294

ii. Intentional Discrimination Does Not Require an Invidious

Motive.

297

2. Is the Alleged Discrimination Nonetheless Legally Justified?

298

i. Level of Scrutiny

298

ii. Evaluation of Means and Ends

305

B. First-Amendment Claims

307 V. CONCLUSION

309

I. INTRODUCTION

Plaintiffs appeal the dismissal of their civil-rights suit against the City of New York (the "City"). They claim to be targets of a wide-ranging surveillance program that the New York City Police Department (the "NYPD") began in the wake of the September 11, 2001 terrorist attacks (the "Program"). Plaintiffs allege that the Program is based on the false and

stigmatizing premise that Muslim religious identity "is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large." First Am. Compl. ¶ 6 (the "Complaint" or "Compl."). They bring this lawsuit "to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith." Id. ¶ 8.
In its narrowest form, this appeal raises two questions: Do Plaintiffs — themselves allegedly subject to a discriminatory surveillance program — have standing to sue in federal court to vindicate their religious-liberty and equal-protection rights? If so, taking Plaintiffs' nonconclusory allegations as true, have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface, however, are questions about equality, religious liberty, the role of 285*285 courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.
II. BACKGROUND
A. Plaintiffs' Allegations
Lead Plaintiff Syed Faraj Hassan and others of or associated with the Islamic faith (collectively "Plaintiffs") assert that, since January 2002, the City has through the NYPD conducted the Program in secret "to monitor the lives of Muslims, their businesses, houses of worship, organizations, and schools in New York City and surrounding states, particularly New Jersey." See Pls.' Br. 2 (citing Compl. ¶¶ 36, 38). As this case comes before us on the City's Motion to Dismiss, we must take all facts alleged in Plaintiffs' Complaint as true and draw all reasonable inferences that arise therefrom in their favor.See Fed.R.Civ.P. 12(b)(6).
1. The Program
Plaintiffs contend that the NYPD launched the Program following the September 11, 2001 terrorist attacks with the goal of "infiltra[ting] and monitor[ing] Muslim life in and around New York City." Compl. ¶ 2. They claim that it "target[s] Muslim entities and individuals in New Jersey for investigation solely because they are Muslim or believed to be Muslim" rather than "based upon evidence of wrongdoing." Id. ¶¶ 7, 47. Plaintiffs claim that the Program, going on its tenth year when the Complaint was filed, "has never generated a single lead." Id. ¶ 2.
Per the Complaint, the NYPD "uses a variety of methods to spy on Muslims." Id. ¶ 39. Among the techniques that it employs are to "snap pictures, take video, and collect license plate numbers of [mosque] congregants" and to "mount surveillance cameras on light poles,

aimed at mosques," which "[o]fficers can [then] control [remotely] ... with their computers" and which generate footage used "to help identify worshippers." Id. ¶ 46. Plaintiffs also allege the NYPD sends "undercover officers" — some of which are called "mosque crawlers" and "rakers" — into mosques, student organizations, businesses, and neighborhoods that "it believes to be heavily Muslim." Id. ¶¶ 47, 49-50. By "monitor[ing] sermons and conversations in mosques" and "surveil[ling] locations such as bookstores, bars, cafes, and nightclubs," officers "document[] ... American Muslim life" in "painstaking detail[]" and "report back to the NYPD." Id. ¶ 47.
While Plaintiffs believe that some of this surveillance activity is passive (such as "tak[ing] video and photographs at mosques, Muslim-owned businesses, and schools," id. ¶ 39, and recording "the subject of conversations overheard at mosques," id. ¶ 47), in other cases NYPD officers more actively engage with the persons monitored. One alleged spying method of the latter type is to "sen[d] undercover officers to [Muslim-affiliated] locations to engage in pretextual conversations to elicit information from proprietors and patrons." Id. ¶ 39. Officers also "sometimes pose" as members of certain groups and organizations under investigation. Id. ¶ 50. The Complaint illustrates one such example where an NYPD "officer ... went on a rafting trip with a[] [Muslim Students Association (MSA)] and monitored and recorded how often the student participants on the trip prayed" and their "discuss[ion of] religious topics." Id.
Not only does the alleged Program "utilize[] numerous forms of surveillance," id. ¶ 45, but that surveillance is also widespread. Plaintiffs claim, for instance, that the NYPD "has strived to have an informant inside every mosque within a 250-mile radius of New York City" and has 286*286 "place[d] informants or undercover officers in all or virtually all MSAs" at "colleges and universities in New York, New Jersey, Connecticut, and Pennsylvania ... without any indication whatsoever of criminal activity or any connection whatsoever to wrongdoing." Id. ¶¶ 47, 49. In all, the NYPD has allegedly "surveill[ed] ... at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two [MSAs], in addition to an untold number of individuals who own, operate, and visit those establishments." Id. ¶ 3.
Plaintiffs claim that, in addition to singling out organizations and businesses for surveillance that in some way are visibly or openly affiliated with Islam (such as mosques or businesses with prayer mats or other Islamic identifications), "the Program also intentionally targets Muslims by using ethnicity as a proxy for faith." Id. ¶ 40. Plaintiffs aver, for instance, that the NYPD "has designated twenty-eight countries... constitut[ing] about 80% of the world's Muslim population" and "American Black Muslim" as "ancestries of interest." Id. ¶ 41. But the Program is still decidedly focused on religion. Thus, rather than "surveil all people and establishments with `ancestries of interest,'" the NYPD "expressly chooses to exclude people and establishments with such `ancestries' if they are not Muslim." Id. ¶ 42. This includes

"Egyptians if they are Coptic Christians, Syrians if they are Jewish, or Albanians if they are Catholic or Orthodox Christian." Id.Conversely, Plaintiffs claim that the NYPD has examined other immigrant communities in Newark, New Jersey "for the presence of Muslims," such as the "Portuguese and Brazilian immigrant communities" notwithstanding that "Portugal and Brazil [are] ... not found on [the NYPD's] list of twenty-eight `ancestries.'" Id. ¶ 44.
2. Reports and Informational Databases
Plaintiffs allege that the Program has resulted in "a series of reports documenting in detail the information obtained from [the NYPD's] surveillance of New Jersey Muslim communities." Id. ¶ 5. These "includ[e] a report focusing on the Muslim community in Newark" (the "Newark report"), id.; "more than twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community," id. ¶ 3; "analytical report[s] on every mosque within 100 miles" of New York City, id. ¶ 47; and a weekly "MSA Report on schools, including reports on Rutgers New Brunswick and Rutgers Newark," id. ¶ 51.
The information and records collected and compiled are extensive and varied. Among these are "pictures, ... video, ... and license plate numbers of [mosque] congregants," id.¶ 46; intelligence about "where religious schools are located," id. ¶ 47; indications of religious affiliation and Muslim patronage of shops, restaurants, and grocery stores, id.;lists of "businesses owned or frequented by Muslims," id.; and "names of professors, scholars, and students" affiliated with MSAs, id. ¶ 51. The City also allegedly "compiles databases of new Muslim converts who take Arabic names, as well as Muslims who take names that are perceived to be `Western.'" Id. ¶ 55.
Besides names and other identifying information of individuals, businesses, and organizations, the NYPD reports include seemingly mundane and innocuous details about Muslim community life in New Jersey, such as: (1) "flyers are posted in shops advertising for Quran tutoring;" (2) "a picture of a mosque hangs in a grocery store;" (3) "a restaurant serves `religious Muslims;'" (4) "customers visit a Dunkin' 287*287 Donuts after Friday prayer;" (5) "a restaurant is located near a particular mosque;" (6) "employees or customers of establishments are observed wearing `traditional clothing;'" (7) "Muslim prayer mats are hanging on the wall at an Indian restaurant;" and (8) "a store posts a sign that it will be closed on Friday in observance of Friday prayer." Id. ¶ 47. Finally, NYPD officers have compiled "the subject[s and details] of conversations overheard at mosques." Id. In one 2006 report, for instance, they "document[ed] twenty-three conversations at twenty mosques," though "[n]one of the information collected showed any indication of criminal activity." Id.

3. Fall-Out from the Program's Disclosure to the Public
Plaintiffs claim that, despite "initial secrecy," public knowledge of the alleged Program's existence "has become widespread in New Jersey and elsewhere." Id. ¶ 45. They also contend that a number of the allegedly generated reports "ha[ve] been widely publicized," id. ¶ 20, and that each Plaintiff has been "either specifically named in an NYPD spying report or is a member of at least one mosque or other association named in such a report," Pls.' Br. 21 (citing Compl. ¶¶ 12-15, 17-26, 28-29, 31-32, 34).
Plaintiffs have learned since the news broke, for instance, that the NYPD's so-called "Newark report" designates several of them as a "Location of Concern," defined "as, among other things, a `location that individuals may find co-conspirators for illegal actions,' and a `location that has demonstrated a significant pattern of illegal activities.'" Compl. ¶ 58. Similarly, the NYPD's "U.S. — Iran report" describes organizations believed to pose serious threats to New York City, such as Hezbollah and Hamas, along with a list of "Other Shi'a Locations in the vicinity of NYC," which include Plaintiff Muslim Foundation Inc. ("MFI") and Masjid-e-Ali mosque (owned and operated by MFI), "as well as three additional mosques attended by Plaintiff Hassan." Id. ¶ 60.
While Plaintiffs allege that the Program is stigmatizing by itself, they also claim these specific defamatory statements targeting them in particular have intensified their harms and that "New York City officials" have exacerbated these injuries by publicly "acknowledg[ing] the [Program's] existence" and "describing it as focused on `threats' and as an attempt to document the `likely whereabouts of terrorists.'" Id. ¶ 61. "Discussing the surveillance, [former] Mayor Bloomberg has stated publicly" that "[w]e're doing the right thing. We will continue to do the right thing." Id. ¶ 64. And "[former Police] Commissioner Kelly has said" that "[w]e're going to continue to do what we have to do to protect the [C]ity." Id. Plaintiffs state that these and other "official proclamations," which "falsely suggest that Muslims alone present a unique law enforcement threat," indicate "that [City officials] believe the NYPD's targeting of Muslims for surveillance on the basis of their religion is appropriate and will continue." Id. ¶¶ 64-65.
Plaintiffs also contend that, in large part because of the Program's alleged stigmatizing and reputational consequences, the surveillance has affected their worship and religious activities. For example, Plaintiff Hassan, a soldier in the U.S. Army who has worked in military intelligence, asserts that "[h]e has decreased his mosque attendance significantly" because of his belief that "being closely affiliated with mosques under surveillance by law enforcement" will jeopardize his ability to hold a security clearance and will tarnish his reputation among his fellow soldiers and diminish 288*288 their trust in him. Id. ¶¶ 11-13.

Likewise, Plaintiffs Moiz Mohammed, Jane Doe, and Soofia Tahir state that they now avoid (or have avoided) discussing their faith openly or at MSA meetings for fear of being watched and documented, id. ¶¶ 24-30, and Plaintiff Mohammad alleges that "[t]he stigma now attached to being a Muslim member of the MSA has caused [him] to avoid discussing his faith or his MSA participation in public and to avoid praying in places where non-Muslims might see him doing so," id. ¶ 25.
The individual Plaintiffs are not the only ones affected. The organizational Plaintiffs allege that the Program "has undermined their ability to fulfill their mission[s by] deterring potential members from joining and casting doubt on [their] ability to maintain the confidentiality of their membership." Pls.' Br. 6 (citing Compl. ¶ 17). According to the Complaint, two mosques that are members of Plaintiff Council of Imams in New Jersey, and that are named in the NYPD's Newark report, "have ... seen a decline in attendance ... as a result of the [NYPD's] surveillance" because their congregants can no longer worship freely knowing that lawenforcement agents or informants are likely in their midst. Compl. ¶ 15. Similarly, "[a]s affinity student groups, MSAs subject to surveillance... are diminished in their ability to establish viable student organizations that students will feel secure joining and participating in" and are less able "to embark upon integral partnerships with campus administrators and other organizations and [to] fulfill the spiritual needs of their members in a confidential manner." Id. ¶ 17. And Plaintiff MFI has changed its religious and educational programming to avoid controversial topics likely to stigmatize its membership further and to attract additional NYPD attention. Id. ¶ 23.
Finally, several Plaintiffs also contend that financial harm has accompanied their alleged religious, reputational, and stigmatizing injuries. For example, Plaintiffs All Shop Body Inside & Outside and Unity Beef Sausage Company claim that the surveillance has damaged their "business[es] by scaring away customers," id. ¶¶ 19, 21, and Plaintiffs Zaimah Abdur-Rahim and Abdul-Hakim Abdullah allege that the publication of the address and a photograph on the Internet of their home "in connection with the NYPD's surveillance... has decreased [its] value ... and diminished [its] prospects for sale," id. ¶¶ 31-32, 34. Also, two of Plaintiff Council of Imams in New Jersey's member mosques have witnessed "[l]osses in ... financial support," which further "harm[s] both mosques' ability to fulfill their religious missions." Id. ¶ 15.
B. District Court
In June 2012, Plaintiffs sued the City pursuant to 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for discriminating against them as Muslims in violation of the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. They seek expungement of any unlawfully obtained

records pertaining to them, a judgment declaring that the City has violated their First and Fourteenth Amendment rights, an order enjoining their future discriminatory surveillance, and damages.
The District Court granted the City's Motion to Dismiss the Complaint in February 2014 pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. First, the Court held that Plaintiffs failed to identify 289*289 any cognizable "injury-in-fact" (let alone one "fairly traceable" to the City's surveillance). Second, it concluded that Plaintiffs failed to state a claim because "[t]he more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies" than a desire to discriminate. Hassan v. City of New York,No. 12-cv-3401, 2014 WL 654604, at *7 (D.N.J. Feb. 20, 2014). It therefore entered judgment in the City's favor. Plaintiffs now appeal these rulings.
III. STANDING
As did the District Court, we begin with Plaintiffs' standing to have a federal court decide their claims. Standing to sue is required for jurisdiction in a federal forum. Derived from Article III of our Constitution, it is the threshold inquiry in every case, one for which "[t]he party invoking federal jurisdiction bears the burden of [proof]." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Analyzing this requirement entails a three-part inquiry. Has at least one plaintiff suffered an "injury in fact"? Id. If so, is that injury "fairly... trace[able] to the challenged action of the defendant"? Id. at 560, 112 S.Ct. 2130 (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). And if the answer to both is yes, will that injury be "likely ... redressed by a favorable decision"?Id. at 561, 112 S.Ct. 2130 (quoting Simon, 426 U.S. at 38, 96 S.Ct. 1917).
When answering these questions, "we must assume that the party asserting federal jurisdiction is correct on the legal merits of his claim, that a decision on the merits would be favorable[,] and that the requested relief would be granted." Cutler v. U.S. Dep't of Health & Human Servs., 797 F.3d 1173, 1179 (D.C.Cir.2015) (internal quotation marks omitted). In other words, to withstand a "facial attack" at the motion-to-dismiss stage, a plaintiff need only plausibly allege facts establishing each constitutional requirement.Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
A. Injury-in-Fact
A plaintiff alleges injury-in-fact when it claims that it has, or is in imminent danger of having, suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "`actual or imminent, not conjectural and hypothetical.'" Lujan, 504 U.S. at 560, 112 S.Ct.

2130 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)) (internal quotation marks omitted). The burden is low, requiring nothing more than "`an identifiable trifle' of harm." Joint Stock Soc'y v. UDV N. Am., Inc., 266 F.3d 164, 177 (3d Cir.2001) (Alito, J.) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)).
While Plaintiffs point to at least four other injuries they contend also meet this requirement, "[t]he indignity of being singled out [by a government] for special burdens on the basis of one's religious calling," Locke v. Davey, 540 U.S. 712, 731, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (Scalia, J., dissenting), is enough to get in the courthouse door. Unequal treatment is "a type of personal injury [that] ha[s] long [been] recognized as judicially cognizable," Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984), and virtually every circuit court has reaffirmed[1] — as has the Supreme Court — that a 290*290 "discriminatory classification is itself a penalty," Saenz v. Roe, 526 U.S. 489, 505, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), and thus qualifies as an actual injury for standing purposes, where a citizen's right to equal treatment is at stake. See also Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 657, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) ("The `injury in fact' ... is the denial of equal treatment....").[2]
None of the City's arguments to the contrary are persuasive. First, its argument that unequal treatment is only injurious when it involves a tangible benefit like college admission or Social Security takes too cramped a view of Article III's injury requirement. As the Supreme Court has noted,
discrimination itself, by perpetuating "archaic and stereotypic notions" or by stigmatizing members of the disfavored group as "innately inferior" and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.
Heckler, 465 U.S. at 739-40, 104 S.Ct. 1387 (citation omitted) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)); see also, e.g., Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1074 (3d Cir.1995) (per curiam) ("[A] victim of discrimination suffers a dehumanizing injury as real as, and often of far more severe and lasting harm than, a blow to the jaw." (internal quotation 291*291marks omitted)). After all, "[t]he fundamental concern of discrimination law is to redress the dignitary affront that decisions based on group characteristics represent, not to guarantee specific economic expectancies." Sandberg v. KPMG Peat Marwick, L.L.P.,111 F.3d 331, 335 (2d Cir.1997).
The City next argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion. City Br. 35. This argument does not stand the test of time.

Our Nation's history teaches the uncomfortable lesson that those not on discrimination's receiving end can all too easily gloss over the "badge of inferiority" inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret. Compare Plessy v. Ferguson, 163 U.S. 537, 551, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) ("[If] enforced separation of the two races stamps the colored race with a badge of inferiority ... [,] it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."), with Brown v. Bd. of Educ., 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ("To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.").
Moving on, we are similarly unpersuaded by the City's alternative argument that Plaintiffs' alleged injuries are not "particularized." It is true that "only... a complainant [who] possesses something more than a general interest in the proper execution of the laws ... is in a position to secure judicial intervention." Stark v. Wickard, 321 U.S. 288, 304, 64 S.Ct. 559, 88 L.Ed. 733 (1944). But where a plaintiff is "asserting [his or her] own [equality] right," a claim of discrimination, even where it affects a broad class, "is not an abstract concern or `generalized grievance.'" Ad Hoc Comm. of Concerned Teachers v. Greenburgh # 11 Union Free Sch. Dist., 873 F.2d 25, 29 (2d Cir.1989) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Because Plaintiffs in this case claim to be the very targets of the allegedly unconstitutional surveillance, they are unquestionably "affect[ed] ... in a personal and individual way." Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130.
Further, that hundreds or thousands (or even millions) of other persons may have suffered the same injury does not change the individualized nature of the asserted rights and interests at stake. See, e.g., Sch. Dist. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (calling religious freedom an "individual" right); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)(referring to a citizen's "personal right to equal protection of the laws" (emphasis in original)). Standing is easily recognized, for instance, in the case of "a widespread mass tort," even though "large numbers of individuals suffer the same common-law injury."FEC v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). And for good reason: "[t]o deny standing to persons who are in fact injured[,] simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody." Massachusetts v. EPA, 549 U.S. 497, 526 n. 24, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (emphasis omitted) (quoting SCRAP, 412 U.S. at 688, 93 S.Ct. 2405). Harm to all — even in the nuanced world of standing law — cannot be logically equated with harm to no one.

292*292 Against this background, the City's reliance on Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), is misplaced. The plaintiffs there alleged only a "chilling effect" on third parties' speech caused by "the mere existence, without more, of [non-discriminatory] governmental investigative and data-gathering activity." Id. at 10-11, 92 S.Ct. 2318. Plaintiffs here, by contrast, allege that the discriminatory manner by which the Program is administered itself causes them direct, ongoing, and immediate harm. Because "standing ... is only a problem where no harm independent of the First Amendment is alleged," Gill v. Pidlychak, 389 F.3d 379, 383 (2d Cir.2004) (Calabresi, J.), and Laird doesn't stand for the proposition that public surveillance is either per seimmune from constitutional attack or subject to a heightened requirement of injury, that case's "narrow" holding, see 408 U.S. at 15, 92 S.Ct. 2318, doesn't reach the facts of this case.
Indeed, in several post-Laird cases we have recognized that, while surveillance in public places may not of itself violate any privacy right,[3] it can still violate other rights that give rise to cognizable harms. See, e.g., Hall v. Pa. State Police, 570 F.2d 86, 91 (3d Cir.1978) ("Although it may be assumed that the state may arrange for photographing all suspicious persons entering the bank, it does not follow that its criterion for selection may be racially based, in the absence of a proven compelling state interest." (citation omitted)); cf. Anderson v. Davila, 125 F.3d 148, 160-61 (3d. Cir.1997) (Roth, J.) (while public governmental surveillance alone was not cognizable, identical surveillance conducted in retaliation for one's exercise of First Amendment rights gave rise to a separate injury cognizable under Article III).
B. Fair Traceability
The second requirement of injury-in-fact is a causal connection between a defendant's alleged conduct and the plaintiff's harm. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The City contends that Plaintiffs have failed to satisfy this requirement because the Associated Press ("AP"), not the NYPD, revealed the Program to the public and did so without the City's permission. In short, it argues, "What you don't know can't hurt you. And, if you do know, don't shoot us. Shoot the messenger."
Aside from its distortions of the factual record,[4] the City's argument is legally untenable293*293 because (to repeat) the discrimination itself is the legally cognizable injury. Indeed, discrimination often has been likened to a "dignitary tort," see, e.g., Curtis v. Loether,415 U.S. 189, 195 n. 10, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (quoting Charles O. Gregory & Harry Kalven, Jr., Cases and Materials on Torts 961 (2d ed.1969)), where "[t]he tort is said to be damage itself," 2 Dan B. Dobbs, Dobbs Law of Remedies § 7.4(1), at 334 (2d ed.1993). And, as with other "torts" in this category, "the affront to the other's dignity ... is as keenly felt by one who only knows after the event that an indignity has been perpetrated upon him as by one who is conscious of it while it is being perpetrated." Restatement (First)

of Torts § 18 cmt. e (1934). Because we view the claimed discrimination itself as the primary injury alleged, it "follows from our definition of `injury in fact'" that the City "is the `cause'" of that injury rather than any member of the press. Ne. Fla. Chapter of Associated Gen. Contractors, 508 U.S. at 666 n. 5, 113 S.Ct. 2297.
Finally, even if only the collateral consequences of the discrimination — rather than the unequal treatment itself — could count as Article III injury, the City "wrongly equat[es] ... injury `fairly traceable' to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation." Constitution Party of Pa. v. Aichele, 757 F.3d 347, 366 (3d Cir.2014) (second alteration in original) (quoting Bennett v. Spear, 520 U.S. 154, 168-69, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). That is incorrect. "[T]here is room for concurrent causation in the analysis of standing, and, indeed, `an indirect causal relationship will suffice, so long as there is a fairly traceable connection.'" Id.(citation omitted) (quoting Toll Bros. v. Township of Readington, 555 F.3d 131, 142 (3d Cir.2009) (internal quotation marks omitted)); see also Block v. Meese, 793 F.2d 1303, 1309 (D.C.Cir.1986) (Scalia, J.) ("[T]he question of core, constitutional injury-in-fact ... requires no more than de facto causality."); Pitt News v. Fisher, 215 F.3d 354, 361 (3d Cir.2000) ("but for" causation sufficient to establish traceability to establish standing).
C. Redressability
The last requirement of Article III standing is redressability, which requires the plaintiff to show that "it ... [is] `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotingSimon, 426 U.S. at 38, 96 S.Ct. 1917). Redressability is "easily established in a case where," as here, "the alleged injury arises from an identifiable discriminatory policy."Smith v. Meese, 821 F.2d 1484, 1494 (11th Cir. 1987). While we cannot predict "the exact nature of the possible relief ... without a full development of the facts, an order enjoining the policy and requiring non-discriminatory investigation and enforcement would redress the injury." Id.
As for past harms, the potential avenues for redress depend on how a particular plaintiff's injury shows itself. Those plaintiffs able to prove "actual injur[ies]" — i.e., those other than "the abstract value of [the] constitutional right[s]," such as out-of-pocket losses or emotional distress — may recover compensatory damages. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); see also Carey v. Piphus, 435 U.S. 247, 264-66, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). For other plaintiffs, "the major purpose of the suit may be to obtain a public declaration that the[y are] right and w[ere] improperly treated," see Restatement (Second) of Torts § 901 cmt. c (1979), along with nominal 294*294 damages that serve as "a symbolic vindication of [their] constitutional right[s]," Schneider v. County of San Diego, 285 F.3d 784, 794 (9th Cir.2002) (quoting Floyd

v. Laws, 929 F.2d 1390, 1403 (9th Cir.1991)). Given the range of available remedies, redressability is easily satisfied.
* * * * * *
Confident in our jurisdiction to hear this case, we now turn to the merits of Plaintiffs' constitutional claims and begin with equal protection.
IV. CONSTITUTIONAL CLAIMS
A. Equal-Protection Claim
The Equal Protection Clause of the Fourteenth Amendment to our Constitution provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. Plaintiffs claim the City is contravening that mandate and violating their rights by surveilling them pursuant to a Program that investigates persons not because of any reasonable suspicion of wrongdoing (or other neutral criterion) but solely because of their Muslim religious affiliation.
A "claim of selective investigation" by the police draws on "`ordinary equal protection standards.'" Flowers v. City of Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009) (quotingWayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). As with other equal-protection claims, we ask whether the City intentionally discriminates against a reasonably identifiable group and whether that intentional discrimination is nonetheless legally justified.
1. Do Plaintiffs Plausibly Allege Intentional Discrimination?
To state an equal-protection claim, Plaintiffs must allege (and ultimately prove) "intentional discrimination." Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 276, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). It is not enough for them to allege that they are Muslim and that the NYPD surveilled more Muslims than members of any other religion. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, Plaintiffs' religious affiliation must have been a substantial factor in that different treatment. Davis, 426 U.S. at 235, 96 S.Ct. 2040; Feeney, 442 U.S. at 276, 99 S.Ct. 2282.
i. Plaintiffs Plausibly Allege a Surveillance Program with a Facially Religious Classification.

There are a variety of theories to consider in an equal-protection claim of this type. First, Plaintiffs could point to a policy that is facially discriminatory, meaning that the policy "by its own terms" singles out Muslims "for different treatment." 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.4 (10th ed.2012); see, e.g., Adarand, 515 U.S. at 213, 227-29, 115 S.Ct. 2097. Second, they could identify a policy that "either shows no classification on its face or else indicates a classification which seems to be legitimate," yet one that NYPD officers apply to Muslims with a greater "degree[] of severity" than other religious groups. Rotunda & Novak, supra, § 18.4; see, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Or, third, Plaintiffs could identify a facially neutral policy that the City purposefully "designed to impose different burdens" on Muslims and that (even if applied evenhandedly) does in fact have the intended adverse effect. Rotunda & Novak, supra, § 18.4; see, e.g., Village of Arlington Heights v. Met. Hous. 295*295 Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
Here, Plaintiffs seek to proceed by way of the first of these three methods, arguing their "allegations leave no doubt that the ... [Program] relies on an express classification of Muslims for disfavored treatment." See Pls.' Br. 10. This is a viable legal theory. Where a plaintiff can point to a facially discriminatory policy, "the protected trait by definition plays a role in the decision-making process, inasmuch as the policy explicitly classifies people on that basis."[5] Cmty. Servs. v. Wind Gap Mun. Auth., 421 F.3d 170, 177 (3d Cir.2005)(quoting DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 726 (3d Cir. 1995)). Put another way, direct evidence of intent is "supplied by the policy itself." Massarsky v. Gen. Motors Corp., 706 F.2d 111, 128 (3d Cir.1983) (Sloviter, J., dissenting).
The City nonetheless attacks the plausibility of the allegations, arguing that Plaintiffs point to only "conclusory allegations... spread throughout [the] ... [C]omplaint," which "as a matter of law cannot be credited." City Br. 56. It further asserts that, "[o]nce the conclusory allegations are pushed aside, the remaining factual allegations are insufficient to find a facially discriminatory classification." Id.
We disagree with this characterization. While the City compares Plaintiffs' claims to the conclusory allegations in Iqbal, those were far from what we have here. In our case, Plaintiffs allege specifics about the Program, including when it was conceived (January 2002), where the City implemented it (in the New York Metropolitan area with a focus on New Jersey), and why it has been employed (because of the belief "that Muslim religious identity... is a permissible proxy for criminality," Compl. ¶ 36). The Complaint also articulates the "variety of methods" by which the surveillance is carried out. See, e.g., id.¶ 39 ("tak[ing] videos and photographs at mosques, Muslim-owned businesses and schools"); id. ("monitor[ing Muslim] websites, listservs, and chat rooms"); id. ¶ 46 ("snap[ping] pictures, tak[ing] video, and collect[ing] license plate numbers of congregants as they arrive at mosques to pray"); id. ¶ 47 ("us[ing] undercover officers... to monitor daily life

in [Muslim] neighborhoods ... and sermons and conversations in mosques"); id. ¶ 49 ("plac[ing] informants or undercover officers in all or virtually all MSAs"). These allegations are hardly "bare assertions ... amount[ing] to nothing more than a `formulaic recitation of the elements' of a constitutional discrimination claim."Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Despite the City's demand for more information about when, by whom, and how the policy was enacted and where it was written down, "the Twombly-Iqbal duo have notinaugurated an era of evidentiary pleading." Santana v. Cook Cnty. Bd. of Review, 270 F.R.D. 388, 390 (N.D.Ill.2010) (emphasis in original); see also Twombly, 296*296 550 U.S. at 570, 127 S.Ct. 1955 (rejecting the proposition that notice pleading "require[s] heightened fact pleading of specifics"). Nor do "factual allegations ... become impermissible labels and conclusions simply because the additional factual allegations explaining and supporting the articulated factual allegations are not also included." In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 753 (E.D.Pa.2014) (internal quotation marks omitted). While it is possible that Plaintiffs will ultimately falter in meeting their burden of proof, the collection of evidence is the object of discovery.
Moreover, even if the pleading of "evidence" rather than "grounds for relief" were required (which it is not), the Complaint includes numerous examples of persons that the NYPD is surveilling because of their religious affiliation.[6] See, e.g., Compl. ¶ 14 (the Masjid al-Haqq and Masjid Ali K. Muslim mosques); id. ¶ 17 (MSAs for Rutgers University campuses at Newark and New Brunswick); id. ¶ 18 (All Body Shop Inside & Outside); id. ¶ 20 (Unity Beef Sausage Co.); id. ¶ 22 (the Masjid-e-Ali mosque); id. ¶ 31 (Al-Hidaayah Academy); id. (Al Muslimaat Academy). These allegations supplement those that the NYPD "surveil[led] ... at least twenty mosques, fourteen restaurants, eleven retail stores, two grade schools and two [MSAs] in New Jersey," id. ¶ 38; "creat[ed] over twenty precinct-level maps of the City of Newark," id.; and attempted to place an "informant inside every mosque within a 250-mile radius of New York City" as well as prepared an "analytical report on every mosque within 100 miles," id. ¶ 47.
Finally, because Plaintiffs allege that all of these persons and entities were surveilled without any reasonable suspicion of wrongdoing (as noted above, they assert that, "[i]n all its years of operation, the Program has never generated a single [criminal] lead," id. ¶ 2), this case can be easily contrasted with others where the law-enforcement investigation at issue was almost certainly explained by a reasonable suspicion of wrongdoing.[7] Cf. George v. 297*297 Rehiel, 738 F.3d 562, 586 (3d Cir.2013) ("The TSA Officials' suspicion was an obvious alternative explanation for their conduct, which negates any inference of retaliation."). That we might be able to conjure up some non-discriminatory motive to explain the City's alleged conduct is not a valid basis for dismissal. It is "only when [a] defendant's

plausible alternative explanation is so convincing" to render the "plaintiff's explanation ... im plausible" that a court may dismiss a complaint. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011) (emphasis in original).
In sum, because Plaintiffs have pleaded ample "factual content [that] allows [us] to draw the reasonable inference that the [City] is liable for the misconduct alleged," Iqbal, 556 U.S. at 663, 129 S.Ct. 1937, we decline to dismiss their Complaint on the ground that they have not plausibly alleged a surveillance program with a facially discriminatory classification.
ii Intentional Discrimination Does Not Require an Invidious Motive.
The City also argues that, even assuming Plaintiffs have plausibly alleged a facial classification based on religious affiliation, their allegations of discriminatory "purpose" are implausible because "the more likely explanation for the NYPD's actions is public safety rather than discrimination based upon religion." City Br. 49. Its reasoning is essentially twofold: "the surveillance is alleged to have begun just after the [September 11, 2001] terrorist attacks," id., and "[t]he police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself," id.(alteration in original) (quoting Hassan, 2014 WL 654604, at *6).
Here's the City's problem: there's a difference between "intent" and "motive." "[A] defendant acts intentionally when he desires a particular result, without reference to the reason for such desire. Motive, on the other hand, is the reason why the defendant desires the result." 2 Harry Sanger Richards et al., American Law and Procedure § 8, at 6 (1922). In other words, "intent" asks whether a person acts "intentionally or accidentally," while "motive" asks, "If he did it intentionally, why did he do it?" 1 John William Salmond, Jurisprudence § 134, at 398 (7th ed.1924) (emphasis in original); see also Black's Law Dictionary 881 (Bryan Garner ed., 10th ed. 2014) ("While motive is the inducement to do some act, intent is the mental resolution or determination to do it."). This fundamental "distinction between motive and intent runs all through the law."Johnson v. Phelan, 69 F.3d 144, 155 (7th Cir.1995) (Posner, C.J., concurring in part and dissenting in part).
In focusing on what the City contends was its "legitimate purpose[]" of "analy[zing]... potential [security] threats and vulnerabilities," City Br. 50, it wrongly assumes that invidious motive is a necessary element of discriminatory intent. It is not. All you need is that the state actor meant to single out a plaintiff because of the protected characteristicitself. See, 298*298 e.g., Snyder v. Louisiana, 552 U.S. 472, 485, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269-70, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). In a school-segregation case, for instance, "the `intent' which triggers a finding of unconstitutionality is not an intent to harm black

students, but simply an intent to bring about or maintain segregated schools." United States v. Sch. Dist. of Omaha, 521 F.2d 530, 535 (8th Cir.1975). Likewise, a prosecutor who strikes a juror on the basis of race discriminates intentionally even if motivated by a sincere desire to win his case. See, e.g., Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
So too here. While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, "intentional discrimination" need not be motivated by "ill will, enmity, or hostility" to contravene the Equal Protection Clause. Floyd v. City of New York, 959 F.Supp.2d 540, 662 (S.D.N.Y.2013) (quoting Ferrill v. Parker Grp., Inc., 168 F.3d 468, 473 n. 7 (11th Cir.1999)); see also Cmtys. for Equity v. Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 694 (6th Cir. 2006) (distinguishing between "an intent to treat two groups differently" and "an intent to harm"); Garza v. County of Los Angeles, 918 F.2d 763, 778 n. 1 (9th Cir. 1990) (Kozinski, J., concurring in part and dissenting in part) ("[T]here can be intentional discrimination without an invidious motive."). Thus, even if NYPD officers were subjectively motivated by a legitimate law-enforcement purpose (no matter how sincere), they've intentionally discriminated if they wouldn't have surveilled Plaintiffs had they not been Muslim.
2. Is the Alleged Discrimination Nonetheless Legally Justified?
Once a plaintiff demonstrates treatment different from others with whom he or she is similarly situated and that the unequal treatment is the result of intentional discrimination, "the adequacy of the reasons for that discrimination are... separately assessed at equal protection's second step" under the appropriate standard of review.SECSYS, LLC v. Vigil, 666 F.3d 678, 689 (10th Cir.2012). To apply this traditional legal framework to the facts of this case, we must determine the appropriate standard of review (i.e., rational basis, intermediate scrutiny, or strict scrutiny) and then ask whether it is met.[8]
i. Level of Scrutiny
At a minimum, intentional discrimination against any "identifiable group" is subject to rationalbasis review, which requires the classification to be rationally related to a legitimate governmental purpose. Johnson v. Cohen, 836 F.2d 798, 805 n. 9 (3d Cir.1987). Where a "quasi-suspect" or "suspect" classification is at issue, however, the challenged action must survive "intermediate scrutiny" or "strict scrutiny."[9] Intermediate scrutiny (applicable to quasi-suspect classes like gender 299*299 and illegitimacy) requires that a classification "be substantially related to an important governmental objective."Clark v. Jeter, 486 U.S. 456,

461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). In contrast, strict scrutiny (applicable to suspect classes like race and nationality) is an even more demanding standard, which requires the classification be "narrowly tailored ... [to] further [a] compelling governmental interest[]." Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). Strict and intermediate scrutiny (which we collectively refer to as "heightened scrutiny" to distinguish them from the far less demanding rational-basis review) in effect set up a presumption of invalidity that the defendant must rebut.
Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation[10] trigger heightened scrutiny under the Equal Protection Clause. See Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 Fla. L.Rev. 909, 919 (2013); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L.Rev. 1753, 1783 (1996). We therefore confront a question of first impression in this Circuit.
Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court's decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race. United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (naming "race" and "religion" as examples of "unjustifiable standard[s]" for a "decision whether to prosecute" (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962))); Burlington N. R.R. v. Ford, 504 U.S. 648, 651, 112 S.Ct. 2184, 119 L.Ed.2d 432 (1992) (referring to "race" and "religion" as "classif[ications] along suspect lines"); Friedman v. Rogers, 440 U.S. 1, 17, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (calling "race, religion, [and] alienage... inherently suspect distinctions"); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (same); United States v. Batchelder, 442 U.S. 114, 125 n. 9, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (listing "race" and "religion" as "unjustifiable standard[s]" under our Constitution (quoting Oyler, 368 U.S. at 456, 82 S.Ct. 501));Steele v. Louisville & Nashville R.R., 323 U.S. 192, 209, 65 S.Ct. 226, 89 L.Ed. 173 (1944) (Murphy, J., concurring) ("The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color.").
This line of comment can be traced back to the famous footnote four of the Supreme300*300 Court's 1938 decision in Carolene Products, where the Court suggested that discriminatory legislation should "be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment" if "directed at particular religious,or national, or racial minorities." United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (citations omitted) (emphasis added). And even before Carolene Products, the Court considered religious discrimination to be a classic example of "a denial of the equal protection of the laws to the less favored classes." Am.

Sugar Ref. Co. v. Louisiana, 179 U.S. 89, 92, 21 S.Ct. 43, 45 L.Ed. 102 (1900); see alsoHall v. De Cuir, 95 U.S. 485, 505, 24 L.Ed. 547 (1877) ("Directors of schools in Iowa ... [cannot] deny a youth of proper age admission to any particular school on account of nationality, color, or religion.").
It is true that these statements are dicta. But even so, Supreme Court dicta "requires serious consideration," United States v. Marzzarella, 614 F.3d 85, 90 n. 5 (3d Cir.2010),"especially ... when, as here, we encounter a decades-long succession of statements from the Court," Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 410 (4th Cir.2005) (D. Motz, J., concurring in the judgment). Moreover, this dicta is consistent with our own.Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir.2013) (identifying "race, religion, [and] alienage" as "inherently suspect distinctions" (quoting Schumacher v. Nix,965 F.2d 1262, 1266 (3d Cir.1992) (internal quotation marks omitted)); United States v. DeJesus, 347 F.3d 500, 51011 (3d Cir.2003) (Fuentes, J.) (referring in dictum to "religious affiliation" as "a protected class")); Tolchin v. Supreme Court of New Jersey,111 F.3d 1099, 1114 (3d Cir.1997) (naming "race, religion or alienage" as "suspect distinctions"); United States v. Friedland, 83 F.3d 1531, 1537 (3d Cir.1996) ("[T]he government can[not] refuse to move for a downward[] departure under 18 U.S.C. § 3553(e) [if] ... base[d]... on a constitutionally suspect ground such as race or religion.").
We also are guided by other appellate courts that have subjected religious-based classifications to heightened scrutiny. For instance, both the Eighth and Tenth Circuit Courts have held without fanfare that "[r]eligion is a suspect classification," Abdulhaseeb v. Calbone, 600 F.3d 1301, 1322 n. 10 (10th Cir.2010); Patel v. U.S. Bureau of Prisons,515 F.3d 807, 816 (8th Cir. 2008), and the Second and Ninth have done the same in so many words, see, e.g., United States v. Brown, 352 F.3d 654, 668 (2d Cir.2003) (Calabresi, J.) (holding that the exercise of a peremptory strike due to a venire member's religious affiliation would violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because "religious classifications ... trigger strict scrutiny"); Christian Sci. Reading Room Jointly Maintained v. City of San Francisco, 784 F.2d 1010, 1012 (9th Cir.1986) ("It seems clear that an individual religion meets the requirements for treatment as a suspect class."), amended, 792 F.2d 124 (9th Cir.1986).[11]
301*301 Today we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review. Before turning more fully to our reasoning, however, we pause to reiterate that the term "heightened scrutiny," as we use it, encompasses both "intermediate scrutiny" and "strict scrutiny." Because the City bears the burden of production and proof with respect to both, see infra Part IV(A)(2), we need not — and should not[12] — determine in connection with its motion to dismiss which of the two applies, and we leave that question for the District Court in the first instance when and if it becomes necessary to decide it.

In designating a particular classification as "suspect" or "quasi-suspect" under the Equal Protection Clause, the Supreme Court generally considers a variety of factors "grouped around [the] central idea" of "whether the discrimination embodies a gross unfairness that is [so] sufficiently inconsistent with the ideals of equal protection to term it `invidious.'" Watkins v. U.S. Army, 875 F.2d 699, 724-25 (9th Cir.1989) (en banc)(Norris, J., concurring in the judgment). Among these are "whether the ... class is defined by a[n] [immutable] trait that `frequently bears no relation to ability to perform or contribute to society'" and "whether the class has been saddled with unique disabilities because of prejudice or inaccurate stereotypes." Id. at 725 (quoting Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion)). But while these factors are those most often considered, "[n]o single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment ...; experience, not abstract logic, must be the primary guide."City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 472 n. 24, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part).
Courts first have looked with particular suspicion on discrimination based on "immutable human attributes." Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979) (plurality opinion). Accordingly, a classification is more likely to receive heightened scrutiny if it discriminates against individuals based on a characteristic that they either cannot 302*302 realistically change or ought not be compelled to change because it is fundamental to their identities. See, e.g., Baskin v. Bogan, 766 F.3d 648, 655 (7th Cir.2014) (Posner, J.) (framing this issue as whether "the unequal treatment [is] based on some immutable or at least tenacious characteristic of the people discriminated against" as opposed to a "characteristic[] that [is] easy for a person to change, such as the length of his or her fingernails"); Watkins, 875 F.2d at 726 (Norris, J., concurring in the judgment) ("[T]he Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.").
Religious affiliation falls within this category. As we have recognized in the immigration context,[13] religious affiliation is typically seen as "capable of being changed," yet "of such fundamental importance that individuals should not be required to modify it."[14]Ghebrehiwot v. Attorney Gen. of U.S., 467 F.3d 344, 357 (3d Cir.2006) (quoting Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir.2005)); see also Baskin, 766 F.3d at 655 (Posner, J.) (listing "religion" as an example of "a deep psychological commitment" that would qualify for heightened scrutiny). Moreover, while some immutable characteristics, such as intellectual disability, are so often correlated with "a person's ability to participate in society" that we frequently deem them to be constitutionally permissible bases for discrimination, see Baskin, 766 F.3d at 655, a person's religious affiliation is at the other end of that spectrum.

Religious discrimination, "by [its] very nature," has long been thought "odious to a free people whose institutions are founded upon the doctrine of equality." Bell v. Maryland,378 U.S. 226, 288, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) (Goldberg, J., concurring)(quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943)); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 653, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ("[For] Jefferson and those who followed him[,]... [r]eligious minorities as well as religious majorities were to be equal in the eyes of the political state."); President James Madison, Religious Freedom: A Memorial and Remonstrance Against the General Assessment, in "A Bill Establishing Provision for the Teachers of the Christian Religion," Presented to the General Assembly of Virginia, at the Session of 1785 (1819) ("A just Government ... will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his 303*303 person and his property; by neither invading the equal rights of any Sect, nor suffering any sect to invade those of another.").
Courts also are more likely to subject classifications that are "closely associated with inequality" to a more searching inquiry. Windsor v. United States, 699 F.3d 169, 196 (2d Cir.2012), aff'd on other grounds, ___ U.S. ___, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Thus, if the classification is accompanied by a history of "discrimination based on archaic and overbroad assumptions," Roberts v. U.S. Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), or if it has been traditionally used as a tool for the oppression and subordination of minority groups, see, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495-96, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion), heightened scrutiny often is more appropriately applied.
The history of religious discrimination in the United States is intertwined with that based on other protected characteristics, including national origin and race.[15] Saint Francis Coll. v. AlKhazraji, 481 U.S. 604, 611-12, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)(noting that "[t]he Ninth edition of the Encyclopedia Britannica ... referred to Arabs, Jews, and other ethnic groups such as Germans, Hungarians, and Greeks, as separate races" (citations omitted)); Fong Yue Ting v. United States, 149 U.S. 698, 717, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) (referring to "Chinese laborers" as "of a distinct race and religion");In re Halladjian, 174 F. 834, 838 (C.C.D.Mass.1909) ("A Hindoo ... differs in color no less from a Chinaman than from an Anglo-Saxon...."); Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29, 33 (2013) (noting that "the conflation of Arab and Muslim identity was deeply entrenched within the courts during the Naturalization Era" and that "Islam was treated as an ethno-racial identity").
It is thus unsurprising that tampering with religious affiliation brings into play the same concerns of inequality. Though "[n]othing but the most telling of personal experiences in religious persecution suffered by our forebears could have planted our belief in liberty of

religious opinion any more deeply in our heritage," Schempp, 374 U.S. at 214, 83 S.Ct. 1560 (citation omitted), we have struggled to guarantee religious equality since our Nation's founding. See generally Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 9-10, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987); Schware v. Bd. of Bar Exam'rs of N.M., 353 U.S. 232, 236, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Murdock v. Pennsylvania,319 U.S. 105, 109, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Different religious groups have borne the brunt of majority 304*304 oppression during different times, and the battle against religious prejudice continues. See, e.g., U.S. Patriot Act of 2001, Pub.L. 107-56, § 102(a)(3), 115 Stat. 274 ("The acts of violence that have been taken against Arab and Muslim Americans since the September 11, 2001, attacks against the United States should be and are condemned by all Americans who value freedom."); Brief in Support of Appellants by Amici Curiae the Asian American Legal Defense & Education Fund & 17 Other Non-Governmental Organizations Supporting Civil Rights for American Muslims 11-22.
In light of this history, distinctions between citizens on religious grounds pose a particularly acute "danger of stigma and stirred animosities." Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 728, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (Kennedy, J., concurring in the judgment); see also Wright v. Rockefeller, 376 U.S. 52, 67, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964) (Douglas, J., dissenting) ("When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion... are generated...."); Kunz v. New York, 340 U.S. 290, 313, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (Jackson, J., dissenting) ("If any two subjects are intrinsically incendiary and divisive, they are race and religion."). That "[c]enturies of experience testify that laws aimed at one ... religious group ... generate hatreds and prejudices which rapidly spread beyond control," Am. Commc'ns Ass'n, C.I.O. v. Douds, 339 U.S. 382, 448, 70 S.Ct. 674, 94 L.Ed. 925 (1950) (Black, J., dissenting), also counsels in favor of heightened scrutiny.
A final relevant consideration is whether the Legislative and Executive Branches have concluded that a form of discrimination is inherently invidious. In holding gender to be a "quasi-suspect" classification deserving of intermediate scrutiny, the Supreme Court noted, for instance, in Frontiero that, because Congress is "a coequal branch of Government," its "conclu[sion] that classifications based upon sex are inherently invidious ... [was] not without significance to the question [then] under consideration."411 U.S. at 687-88, 93 S.Ct. 1764.
Many of the same statutes that foreclose sex-based discrimination, including Title VII of the Civil Rights Act of 1964 cited by the Frontiero Court, see id. at 687, 93 S.Ct. 1764, also forbid religious discrimination. See, e.g., 42 U.S.C. § 2000e-2 (making it an "unlawful employment practice" for an employer to discriminate based on "race, color, religion, sex, or national origin"). And from the passage of the Civil Rights Act of 1875,[16] to those designed to

strengthen national security in our post-September 11 world,[17]that commitment to the "sacrosanct ... concept" of equality among "all religious ... groups," see U.S. Patriot Act of 2001 § 102(a)(3), is embodied throughout the U.S. Code. See, e.g., 2 U.S.C. § 1311(a) (employment); 12 U.S.C. 305*305 § 3106a(1)(B), (2)(B) (banking); 12 U.S.C. § 4545 (fair housing); 22 U.S.C. § 2504(a) (Peace Corps service); 49 U.S.C. § 40127 (air transportation and use of private airports).
The same commitment to religious equality is seen in the pronouncements of the Executive Branch, from those of our first President, George Washington, to our current President, Barack Obama. See, e.g., President George Washington, Address to the Members of the New Church in Baltimore (Jan. 1793), in 2 Jared Sparks, Life of George Washington Commander-in-Chief of the American Armies: to Which Are Added, His Diaries and Speeches; and Various Miscellaneous Papers Relating to His Habits & Opinions 314, 314-15 (1839) ("In this enlightened age, and in this land of equal liberty, it is our boast that a man's religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining and holding the highest offices that are known in the United States."); President Harry Truman, Special Message to the Congress on Civil Rights (Feb. 2, 1948) ("Racial, religious and other invidious forms of discrimination deprive the individual of an equal chance to develop and utilize his talents and to enjoy the rewards of his efforts."); President Theodore Roosevelt, Sixth Annual Message to Congress (Dec. 3, 1906) ("[W]e must treat with justice and good will all immigrants who come here under the law[,] ... [w]hether they are Catholic or Protestant, Jew or Gentile...."); President Barack Obama, State of the Union Address (Jan. 28, 2014) ("[W]e believe in the inherent dignity and equality of every human being, regardless of race or religion, creed or sexual orientation.").
For these reasons, we conclude that classifications on the basis of religious affiliation are subject to heightened scrutiny under the Equal Protection Clause.
ii. Evaluation of Means and Ends
The final step in evaluating an equal-protection claim is to examine the challenged action's "means" and "ends" and the "fit" between the two. The specific analysis differs depending on the level of scrutiny that applies. The higher the scrutiny required, the more persuasive must be the governmental objective and the snugger the means-ends fit. Thus, while it usually matters little for purposes of rational-basis review that a governmental interest is not exceedingly important or that "other means are better suited to the achievement of governmental ends," heightened scrutiny demands a much stronger justification and a much tighter relationship "between the means employed and the ends served." Tuan Anh Nguyen v. INS, 533 U.S. 53, 77-78, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) (O'Connor, J., dissenting).

Also increasingly demanding is the standard of proof. While the rational-basis standard usually puts the burden of proof on the classification's opponent and "permits a court to hypothesize interests that might support [the governmental] distinctions," id. at 77, 121 S.Ct. 2053 (emphasis added) (citing Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980)), the burden of justification under both intermediate and strict scrutiny "is demanding and ... rests entirely on the State," United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). See also Hogan, 458 U.S. at 724, 102 S.Ct. 3331 (discussing the standard and burden for intermediate scrutiny); Fisher v. Univ. of Tex. at Austin, ___ U.S. 306*306 ___, 133 S.Ct. 2411, 2419, 186 L.Ed.2d 474 (2013) (strict scrutiny).
Here, the City argues that "[a] comprehensive understanding of the makeup of the community would help the NYPD figure out where to look — and where not to look — in the event it received information that an Islamist radicalized to violence may be secreting himself in New Jersey." City Br. 50. It even goes so far as to assert that "it would beirresponsible for the NYPD not to have an understanding of the varied mosaic that is the Muslim community to respond to such threats." Id. (emphasis added). But because heightened scrutiny applies in this case, we cannot accept the City's invitation to dismiss Plaintiffs' Complaint based on its assurance that the Program is justified by national-security and public-safety concerns. Rather, the burden of producing evidence to overcome heightened scrutiny's presumption of unconstitutionality is that of the City, cf.Aiken v. City of Memphis, 37 F.3d 1155, 1163 (6th Cir.1994) (en banc) ("When, as here, a race-based affirmative action plan is subjected to strict scrutiny, the party defending the plan bears the burden of producing evidence that the plan is constitutional."), and must be met after its Motion to Dismiss.
To be clear, we acknowledge that a principal reason for a government's existence is to provide security. But while we do not question the legitimacy of the City's interest, "[t]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose." City of Indianapolis v. Edmond, 531 U.S. 32, 42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Rather, heightened scrutiny requires that the relationship between the asserted justification and discriminatory means employed "be substantiated by objective evidence." Patrolmen's Benevolent Ass'n of New York v. City of New York, 310 F.3d 43, 53 (2d Cir.2002). "[M]ere speculation or conjecture is insufficient," id., as are appeals to "`common sense' which might be inflected by stereotypes," Reynolds v. City of Chicago, 296 F.3d 524, 526 (7th Cir.2002) (Posner, J.). See also Lomack v. City of Newark, 463 F.3d 303, 310 (3d Cir.2006) (citing with approval Patrolmen's Benevolent Ass'n, 310 F.3d at 52-53).
And "[e]ven in the limited circumstance" where a suspect or quasi-suspect classification "is permissible to further [an important or] compelling state interest, the government is still `constrained in how it may pursue that end.'" Grutter v. Bollinger, 539 U.S. 306, 333, 123

S.Ct. 2325, 156 L.Ed.2d 304 (2003) (second alteration in original) (quoting Shaw v. Hunt, 517 U.S. 899, 908, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (internal quotation marks and citation omitted)). While "[a] classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality," Heller, 509 U.S. at 321, 113 S.Ct. 2637 (internal quotation marks omitted), strict scrutiny requires that "the classification at issue ... `fit' with greater precision than any alternative means," Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion) (citing John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L.Rev. 723, 727 n. 26 (1974)). Intermediate scrutiny falls somewhere in between the two, asking if there is a "direct, substantial relationship between objective and means." Hogan, 458 U.S. at 725, 102 S.Ct. 3331.
No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted 307*307 interest appears most compelling that we must be most vigilant in protecting constitutional rights. "[H]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure." Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 635, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (Marshall, J., dissenting); see also Grutter, 539 U.S. at 351, 123 S.Ct. 2325 (Scalia, J., concurring in part and dissenting in part) ("The lesson ofKorematsu [v. United States, 323 U.S. 214, 223, 65 S.Ct. 193, 89 L.Ed. 194 (1944)] is that national security constitutes a `pressing public necessity,' though the government's use of [a suspect classification] to advance that objective must be [appropriately] tailored."); Skinner, 489 U.S. at 635, 109 S.Ct. 1402 (Marshall, J. dissenting) ("The World War II relocation-camp cases and the Red scare and McCarthy-era internal subversion cases are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it." (citations omitted)).
Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government's representations that the use of such classifications was necessary to the national interest. Hirabayashi, 320 U.S. 81, 63 S.Ct. 1375; Korematsu, 323 U.S. 214, 65 S.Ct. 193. In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears. See United States v. Hohri, 482 U.S. 64, 66, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987); see also Act to Implement Recommendations on the Commission of Wartime Relocation and Internment of Civilians, Pub.L. 100-383, § 2(a), 102 Stat. 903-04 (1988). Given that "unconditional deference to [the] government['s]... invocation of `emergency' ... has a lamentable place in our history," Patrolmen's Benevolent Ass'n, 310

F.3d at 53-54 (citing Korematsu, 323 U.S. at 223, 65 S.Ct. 193), the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.
In sum, because Plaintiffs have plausibly alleged that the City engaged in intentional discrimination against a protected class, and because that classification creates a presumption of unconstitutionality that remains the City's obligation to rebut, Plaintiffs have stated a claim under the Equal Protection Clause of the Fourteenth Amendment.
B. First-Amendment Claims
We finally reach Plaintiffs' claims under the Religion Clauses of the First Amendment. They allege violations of both the Establishment Clause and the Free Exercise Clause, which respectively prohibit the making of any "law respecting an establishment of religion" or "prohibiting the free exercise thereof." U.S. Const. Amend. I.
Plaintiffs bring both claims under the theory that the First Amendment demands strict governmental neutrality among religious sects. While it is intuitive that discriminatory conduct that inhibits a person's full religious expression may run afoul of the Free Exercise Clause of the First Amendment, under the facts here the same is counterintuitive for the Establishment Clause, as the latter 308*308 "tend[s] to [involve] challenge[s] to governmental endorsement." Catholic League for Religious & Civil Rights v. City of San Francisco, 624 F.3d 1043, 1050 n. 20 (9th Cir.2010) (en banc) (emphasis added). But see Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir.2008) (McConnell, J.) ("[S]tatutes involving discrimination on the basis of religion, including interdenominational discrimination, are subject to heightened scrutiny whether they arise under the Free Exercise Clause, the Establishment Clause, or the Equal Protection Clause...." (citations omitted)). However, a full discussion of either Religion Clause and its application to our case is unnecessary, as we confine ourselves to the City's arguments raised in its Motion to Dismiss. Those arguments are unpersuasive.
The City first argues that, "according to a three month fact finding investigation by the New Jersey Attorney General, the surveillance Program did not violate New Jersey civil or criminal law." City Br. 44. That this argument could defeat a federal constitutional claim, let alone on a motion to dismiss, borders on the frivolous. Aside from a court's inability to consider such matters extraneous to the pleadings under Federal Rule of Civil Procedure 12(b)(6), it is the United States Constitution — not the "civil or criminal law" of New Jersey — that Plaintiffs seek to enforce. But even more fundamentally, the New Jersey Attorney General's legal conclusion is not helpful in determining whether the City violated Plaintiffs' constitutional rights. "It is emphatically the province and duty of the judicial department" —

not the New Jersey executive — "to say what the law is."Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).
The City's only other argument (aside from a few scattered citations to free-speech and privacy cases that have little application to Plaintiffs' religion claims) is buried in a footnote in its brief amidst a discussion of the Equal Protection Clause:
[Plaintiffs have also failed to] allege[] a classification that violates the Free Exercise and Establishment Clauses of the First Amendment because such claims [similarly] require a showing of discriminatory purpose. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) ("Here, as in equal protection cases, we may determine the city council's object from both direct and circumstantial evidence.") [sic]; Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (in order to survive an Establishment Clause challenge, the government practice must (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster excessive state entanglement with religion).
City Br. 58 n. 20 (emphasis added). A sentence-long argument buried in a footnote is hardly a satisfactory way to tackle two of the most jurisprudentially challenging and nuanced areas of our law. Schempp, 374 U.S. at 246, 83 S.Ct. 1560 (Brennan, J., concurring) (noting "the difficulty... endemic to issues implicating the religious guarantees of the First Amendment"); Robinson v. City of Edmond, 160 F.3d 1275, 1282 (10th Cir.1998) (recognizing that the Establishment Clause is "an area notorious for its difficult case law"); Harris v. City of Zion, 927 F.2d 1401, 1410-11 (7th Cir.1991) ("[C]ases arising under the Religion Clauses of the [F]irst [A]mendment have presented some of the most perplexing questions in constitutional law."). We therefore consider this argument waived. John Wyeth & Brother Ltd. 309*309 v. CIGNA Int'l Corp., 119 F.3d 1070, 1076 n. 6 (3d Cir.1997) (Alito, J.) ("[A]rguments raised in passing (such as in a footnote), but not squarely argued, are considered waived.").
But even if we were to consider the City's halfhearted assertion that allegations of overt hostility and prejudice are required to make out claims under the First Amendment, this argument would easily fail, just as did the identical argument with respect to the Equal Protection Clause. While the contours of neither the Free Exercise nor the Establishment Clause are static and well defined, courts have repeatedly rejected the notion that either Clause "is ... confined to actions based on animus." Laurence H. Tribe, American Constitutional Law §§ 5-16, at 956 (3d ed. 2000) ("[A] law that is not neutral or that is not generally applicable can violate the Free Exercise Clause without regard to the motives of those who enacted the measure."); see also Shrum v. City of Coweta, 449 F.3d 1132, 114445 (10th Cir.2006) (McConnell, J.) ("Proof of hostility or discriminatory motivation may be sufficient to prove that a challenged governmental action is not neutral, but the Free Exercise

Clause is not confined to actions based on animus." (citations omitted));Allen v. Morton, 495 F.2d 65, 72 (D.C.Cir.1973) (Tamm, J., concurring) (noting that, under the Establishment Clause, "good motives cannot save impermissible actions"). At bottom, the City needs something other than this threadbare argument based on the absence of subjective hostility to avoid a non-swinging strikeout.
V. CONCLUSION
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, 65 S.Ct. 193 (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, 65 S.Ct. 193 (Murphy, J., dissenting).
What occurs here in one guise is not new. We have been down similar roads before. JewishAmericans 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. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight — that "[l]oyalty is a matter of the heart and mind[,] not race, creed, or color." Ex parte Mitsuye Endo, 323 U.S. 283, 302, 65 S.Ct. 208, 89 L.Ed. 243 (1944).
We reverse and remand for further proceedings consistent with this opinion.
ROTH, Circuit Judge, concurrence.
I agree that plaintiffs have demonstrated standing and made sufficient allegations of violations of equal-protection rights ... I differ from the majority in its failure to determine whether "intermediate scrutiny" or "strict scrutiny" applies here. In our determinations so far, we have also, I believe, 310*310 made the findings necessary to resolve the issue of the appropriate level of scrutiny.

In my opinion, "intermediate scrutiny" is appropriate here. I say this because "intermediate
scrutiny" is the level applied in gender discrimination cases. I have the immutable
characteristic of being a woman. I am happy with this condition, but during my 80 years on
this earth, it has caused me at times to suffer gender discrimination. My remedy now for any
future gender discrimination would be reviewed with "intermediate scrutiny." For that reason,
I cannot endorse a level of scrutiny in other types of discrimination cases that would be
stricter than the level which would apply to discrimination against me as a woman.
[1] See, e.g., Davis v. Guam, 785 F.3d 1311, 1315 (9th Cir.2015) ("[E]qual treatment under law is a judicially cognizable interest ... even if it brings no tangible benefit to the party asserting it."); Am. Civil Liberties Union of N.M. v. Santillanes, 546 F.3d 1313, 1319 (10th Cir.2008) ("The injury in fact is the denial of equal treatment.");Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 790 (4th Cir.2004) ("Discriminatory treatment ... qualif[ies] as an actual injury for standing purposes."); Lutheran Church-Mo. Synod v. FCC, 154 F.3d 487, 493 (D.C.Cir.1998) ("[T]he claim that the litigant was denied equal treatment is sufficient to constitute Article III `injury in-fact.'"); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1214 n. 2 (5th Cir.1991) ("[I]llegitimate unequal treatment is an injury unto itself....").
[2] Plaintiffs' personal interest in religious equality falls squarely within the zone of those protected by the constitutional guarantees in question. While their claims certainly strike at the heart of the Equal Protection Clause of the Fourteenth Amendment, the First Amendment's guarantee of freedom of religion includes freedom from religious discrimination. See, e.g., Permoli v. Municipality No. 1 of New Orleans, 44 U.S. 589, 597, 3 How. 589, 11 L.Ed. 739 (1845) ("Equality before the law is of the very essence of liberty, whether civil or religious.");Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1257 (10th Cir.2008) (McConnell, J.) ("From the beginning, this nation's conception of religious liberty included, at a minimum, the equal treatment of all religious faiths without discrimination or preference."); cf. Karl Loewenstein, Some General Observations on the Proposed "International Bill of Rights" 17 (1942).
"[T]he Religion Clauses ... and the Equal Protection Clause as applied to religion ... all speak with one voice on this point: Absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits." Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (O'Connor, J., concurring in part and concurring in the judgment in part); see also, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 845, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Larson v. Valente, 456 U.S. 228, 244-45, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982); comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Gillette v. United States, 401 U.S. 437, 449, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
[3] We do not take a position on whether Plaintiffs could have brought suit to vindicate such an interest. They do not allege a violation of some constitutional right to privacy, but to equal treatment.
[4] Far from attesting to the NYPD and AP's respective roles in revealing the once-secret Program, the affidavit of defense counsel on which the City relies merely states that the AP reported on the NYPD's conduct and "released [unredacted] documents to the public at large beginning in ... August 2011." Decl. of Peter G. Farrell ¶ 3. It is impossible to infer reasonably, let alone conclude, from this statement that the AP was the first (or only) public source of the information or that the NYPD played no role for which it may be held legally responsible.
Moreover, even if they were required to do so, Plaintiffs have produced ample evidence in rebuttal showing that: (1) "[a] former NYPD informant ... independently [of the AP] revealed the NYPD's practice of targeting innocent Muslims" by "sp[eaking] publicly in great detail about his part in the NYPD's policy and practice of surveilling Muslims on the basis of religion," Decl. of Glenn Katon ¶ 4; and (2) "[s]ince the AP began publishing reports regarding the NYPD's policy and practice of targeting Muslims for surveillance, senior New York City officials have acknowledged and endorsed the NYPD's tactics," thus "propagat[ing] and amplif[ying] the harm," id. ¶ 3.
[5] To the extent the City focuses on Plaintiffs' failure to allege the existence of a written policy, there is no requirement that a policy be reduced to written form. See, e.g., Johnson v. California, 543 U.S. 499, 502, 509, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (holding that an "unwritten [prison] policy of racially segregating prisoners in double cells" was subject to strict scrutiny). As the Ninth Circuit has explained, "[t]he primary — indeed, perhaps only — difference [between a suit involving a written and unwritten policy] is an evidentiary one."Hoye v. City of

Oakland, 653 F.3d 835, 855 (9th Cir.2011). While a "[p]laintiff[] ha[s] no difficulty establishing what a policy is when the policy is written," "[a]n unwritten policy, by contrast, is usually harder to establish." Id.
[6] To the extent the City means to argue that Plaintiffs have failed to allege plausibly that even these exemplars have not been singled out by reason of their religious affiliation, we disagree. Plaintiffs' allegations, which draw on the sources of circumstantial evidence commonly used to make out a prima facie case of intentional discrimination in a disparate-treatment suit of this type, easily satisfy the plausibility threshold required to survive a motion to dismiss. See, e.g., Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 410 (2d Cir.1990)("maintenance of records of the race of the arrestees"); Marshall v. Colum. Lea Reg'l Hosp., 345 F.3d 1157, 1170 (10th Cir.2003) (McConnell, J.) (racial designation on a driving-citation form "where none was called for");Jean v. Nelson, 711 F.2d 1455, 1495-96 (11th Cir.1983) (statistical evidence showing "glaring" effect on protected class); Floyd v. City of New York, 959 F.Supp.2d 540, 587 (S.D.N.Y.2013) (disparities between minority groups in "hit rates" combined with other evidence); Rodriguez v. Cal. Highway Patrol, 89 F.Supp.2d 1131, 1141 (N.D.Cal. 2000) (statistical evidence).
[7] This of course is not to say that an absence or presence of reasonable suspicion in a particular case determines the viability of a plaintiff's equal-protection claim. Cf. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."); United States v. Scopo, 19 F.3d 777, 786 (2d Cir.1994) (Newman, C.J., concurring) ("Though the Fourth Amendment permits a pretext arrest, if otherwise supported by probable cause, the Equal Protection Clause still imposes restraint on impermissibly class-based discriminations.").
But although a lack of reasonable suspicion does not afford a presumption that a law-enforcement officer initiated an investigation on the basis of a protected characteristic, it is certainly one factor that may be considered by a finder of fact. See Bennett v. City of Eastpointe, 410 F.3d 810, 822 n. 1 (6th Cir. 2005) ("While the stop was justified from a Fourth Amendment perspective ... [,] the lack of suspicion ... may properly be considered in the plaintiffs' selective-enforcement claim."); Anderson v. Cornejo, 284 F.Supp.2d 1008, 1055 (N.D.Ill.2003) (citing "the lack of adequate suspicion for a strip search" as probative of the fact that a customs officer "acted, at least in part, because [the plaintiff was] an African-American woman").
[8] Although other modes of analysis have also been employed, see, e.g., Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 2596, 192 L.Ed.2d 609 (2015), we find it appropriate to apply the conventional two-part framework in the context of this case.
[9] "Strict scrutiny" is also triggered in the case of a "fundamental right." While "the right to free exercise of religion" is fundamental, Lewis, 518 U.S. at 404, 116 S.Ct. 2174, Plaintiffs proceed in this case on the theory that religious affiliation is a protected class.
[10] We refer in this opinion only to discrimination based on religious affiliation rather than involvement. Case law distinguishes between the two. See, e.g., United States v. DeJesus, 347 F.3d 500, 510 (3d Cir.2003) (Fuentes, J.) ("Because we affirm the District Court's finding that the government's strikes were based on the jurors' heightened religious involvement rather than their religious affiliation, we need not reach the issue of whether a peremptory strike based solely on religious affiliation would be unconstitutional."); United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.1998) (Posner, C.J.) (explaining that "[i]t is necessary to distinguish among religious affiliation, a religion's general tenets, and a specific religious belief"), modified, 136 F.3d 1115 (7th Cir.1998). Nor do we mean to state a position on the separate "question of whether all religions together constitute a suspect or quasi-suspect class." Christian Sci. Reading Room Jointly Maintained v. City of San Francisco, 807 F.2d 1466, 1467 n. 1 (9th Cir.1986) (Norris, J., dissenting from the denial of rehearing en banc) (stating this as a separate issue that the panel expressly declined to decide).
[11] Some appellate courts have recognized the question as an open one, see, e.g., St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir.2007); Wirzburger v. Galvin, 412 F.3d 271, 283 (1st Cir.2005); Taylor v. Johnson, 257 F.3d 470, 473 n. 2 (5th Cir.2001) (per curiam), but we are not aware of a single circuit court holding that religious classifications are subject to only rational-basis review.
We also note that numerous state courts either have held that religious affiliation is a suspect classification or have issued opinions with strong dicta to that effect. See, e.g., Bagley v. Raymond Sch. Dep't, 728 A.2d 127, 137 (Me.1999); Marrujo v. N.M. State Highway Transp. Dep't, 118 N.M. 753, 887 P.2d 747, 751 (1994); Bd. of Cnty. Comm'rs of Saguache v. Flickinger, 687 P.2d 975, 982 n. 9 (Colo.1984) (en banc); State v. Correll, 626 S.W.2d 699, 701 (Tenn.1982); Burmaster v. Gravity Drainage Dist. No. 2 of St. Charles Parish, 366 So.2d 1381, 1386 n. 3

(La.1978); Gunn v. Lane County, 173 Or.App. 97, 20 P.3d 247, 251 (2001); LaCava v. Lucander, 58 Mass.App.Ct. 527, 791 N.E.2d 358, 363 (2003). But see State v. Purcell, 199 Ariz. 319, 18 P.3d 113, 121 (Ct.App.2001) ("In addition to being a fundamental right, religious affiliation also may be a suspect classification under the Equal Protection Clause." (emphasis added)); State v. Davis, 504 N.W.2d 767, 771 (Minn.1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994); Casarez v. State, 913 S.W.2d 468 (Tex.Crim.App.1994).
[12] Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905))); Liverpool, N.Y. & Phila. S.S. Co. v. Comm'rs of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885) ("In the exercise of [its] jurisdiction, [the Court must] ... never ... formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."); Ala. State Fed'n of Labor v. McAdory,325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945) ("It has long been [the Court's] considered practice not ... to decide any constitutional question in advance of the necessity for its decision.").
[13] Other courts have drawn on the definition of "immutable" in immigration cases when defining the term in the context of an equal-protection suit. Latta v. Otter, 771 F.3d 456, 464 n. 4 (9th Cir.2014) (quoting an immigration case for the proposition that "[s]exual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them" (alteration in original)), cert. denied, ___ U.S. ___, 135 S.Ct. 2931, 192 L.Ed.2d 609 (2015).
[14] Aziz Z. Huq, The Signaling Function of Religious Speech in Domestic Counterterrorism, 89 Tex. L.Rev. 833, 852 (2011) (recognizing that religion lies "at the core of many individuals' understanding of their identity"); David B. Salmons, Comment, Toward a Fuller Understanding of Religious Exercise: Recognizing the Identity-Generative and Expressive Nature of Religious Devotion, 62 U. Chi. L.Rev. 1243, 1258 (1995) (noting the "fundamental role [that religious preference] play[s] in shaping an individual's concept of identity and personhood"); Note, Reinterpreting the Religion Clauses: Constitutional Construction and Conceptions of the Self, 97 Harv. L.Rev. 1468, 1474 (1984) ("A society that failed to protect religion would foreclose the individual's choice of the most fundamental part of his identity.").
[15] Indeed, the close relationship among race, religion, ethnicity, and national origin is reflected by the allegations in Plaintiffs' Complaint. See, e.g., Compl. ¶ 40 ("In addition to targeting Muslims by focusing on mosques, Muslimowned businesses, and other Muslim-associated organizations as subjects of surveillance, the Program also intentionally targets Muslims by using ethnicity as a proxy for faith."); id. ¶ 41 ("As part of the Program, the Department has designated twenty-eight countries and `American Black Muslim' as `ancestries of interest.'"); id. ¶ 53 ("To facilitate future surveillance of entire American Muslim communities, the NYPD has created maps indicating the locations of mosques, restaurants, retail establishments, and schools owned by or serving Muslims, as well as ethnic populations from heavily Muslim countries."); id. ¶ 55 ("The NYPD also inspects records of name changes and compiles databases of new Muslim converts who take Arabic names, as well as Muslims who take names that are perceived to be `Western.'").
[16] Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 ("[I]t is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political....").
[17] See, e.g., U.S. Patriot Act of 2001, Pub.L. 107-56, § 102(a)(3), b(3), 115 Stat. 274 ("The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups.... [T]he Nation is called upon to recognize the patriotism of fellow citizens from all ethnic, racial, and religious backgrounds.").