Syed Hassan v. City of New York

Court of Appeals for the Third Circuit
804 F.3d 277 (2015)

ELI5:

Rule of Law:

A government policy that intentionally targets individuals for surveillance based solely on their religious affiliation constitutes a facially discriminatory classification subject to heightened scrutiny under the Equal Protection Clause. Such a policy inflicts a cognizable injury-in-fact sufficient to establish standing for those targeted.

Facts:

Following the September 11, 2001 terrorist attacks, the New York City Police Department (NYPD) initiated a widespread surveillance program.
The Program allegedly targeted Muslim individuals, businesses, mosques, and student organizations in New York City and surrounding areas, particularly New Jersey.
The NYPD used various methods, including undercover officers known as 'mosque crawlers,' informants, photography and video of congregants, and monitoring of sermons and websites.
The Program allegedly used ethnicity as a proxy for religion, designating certain countries and 'American Black Muslim' as 'ancestries of interest' but excluding non-Muslims from those same ethnic groups.
Information gathered was compiled into reports, such as a 'Newark report' which designated certain plaintiffs and their establishments as 'Locations of Concern.'
Public disclosure of the Program led Plaintiffs to feel stigmatized, with some decreasing their mosque attendance, avoiding open religious discussions, and suffering financial harm to their businesses.
The plaintiffs allege the Program never generated a single lead for a criminal investigation.
Plaintiff Syed Faraj Hassan, a U.S. Army soldier, asserted he reduced his mosque attendance out of fear that being associated with a surveilled mosque would jeopardize his security clearance.

Procedural Posture:

Syed Faraj Hassan and other Muslims and Muslim organizations sued the City of New York in the U.S. District Court for the District of New Jersey.
The complaint alleged violations of the First and Fourteenth Amendments and sought declaratory and injunctive relief, as well as damages.
The City of New York filed a motion to dismiss under FRCP 12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim.
The District Court granted the City's motion, holding that the plaintiffs had not alleged a cognizable injury for standing and that the more likely explanation for the surveillance was counterterrorism, not discrimination.
The plaintiffs (appellants) appealed the District Court's dismissal to the U.S. Court of Appeals for the Third Circuit, with the City of New York as the appellee.

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Issue:

Does a government surveillance program that allegedly targets individuals for investigation solely based on their religious affiliation, without any individualized suspicion of wrongdoing, violate the Equal Protection Clause of the Fourteenth Amendment?

Opinions:

Majority - Ambro

Yes. A government surveillance program that targets individuals solely based on religious affiliation violates the Equal Protection Clause. The court first held that plaintiffs had standing to sue because being singled out by the government for discriminatory treatment is a cognizable injury-in-fact. This dignitary harm is fairly traceable to the City's program, not the media's disclosure of it, and is redressable by the court. On the merits, the court found that plaintiffs plausibly alleged the Program was facially discriminatory because it intentionally classified people for surveillance based on their religion. The City's argument that its motive was public safety, not religious animus, is irrelevant to the question of discriminatory intent, which only requires that the government meant to treat one group differently. The court held for the first time in the circuit that classifications based on religious affiliation are subject to heightened scrutiny. This holding is based on Supreme Court dicta (Carolene Products), the fundamental nature of religion, the history of religious discrimination, and the consensus of the other branches of government. Because heightened scrutiny applies, the burden shifts to the City to justify its program, a burden it cannot meet on a motion to dismiss.

Concurrence - Roth

Yes. While concurring in the judgment, this opinion differs from the majority by arguing the court should have determined which specific level of heightened scrutiny applies. The concurrence advocates for intermediate scrutiny, the standard used in gender discrimination cases. The author reasons that since discrimination against her as a woman would be reviewed under intermediate scrutiny, she cannot endorse a stricter level of review for other forms of discrimination.

Analysis:

This decision establishes religious affiliation as a suspect or quasi-suspect classification in the Third Circuit, subjecting government actions based on it to heightened scrutiny under the Equal Protection Clause. By rejecting the government's national security justification at the pleading stage, the court sent a strong signal against broad, group-based surveillance programs that lack individualized suspicion. The opinion explicitly invokes the historical error of Korematsu v. United States to warn against judicial deference to executive actions that infringe on constitutional rights in the name of security, making this case a significant precedent for civil liberties in the post-9/11 era.

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