Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015). This opinion by Judge Ambro yesterday is one of the most important decisions that the Third Circuit has made in some time. The case involves New York City Police Department’s program of surveillance of Muslims, including, allegedly, “every mosque within a 250-mile radius of New York City,” and at “all or virtually all [Muslim Student Associations] in New York, New Jersey, Connecticut, and Pennsylvania,” among other places. The individual plaintiffs alleged that “the surveillance has affected their worship and religious activities,” causing them to curtail their attendance at mosques and reduce or eliminate their public discussions of their faith. Organizational plaintiffs assert that the surveillance has undermined their ability to fulfill their missions by discouraging persons from associating with those organizations.
Plaintiffs sued New York City under the Civil Rights Act, 42 U.S.C. §1983, for allegedly violating their rights under the Free Exercise and Establishment of Religion clauses of the First Amendment, and their right to equal protection under the Fourteenth Amendment. The District Court granted the City’s motion to dismiss for failure to state a claim. On appeal, the Third Circuit reversed.
Judge Ambro ruled that, contrary to the District Court’s conclusion, plaintiffs had standing. His opinion is an excellent response to the crabbed view of standing that too often obtains in federal court. On each of the three elements of standing– injury in fact, traceability (“a causal connection between a defendant’s alleged conduct and the plaintiff’s harm”), and redressability, Judge Ambro persuasively rejected the City’s positions. He then proceeded to rule that plaintiffs had sufficiently alleged each of their claims. One of the key elements of that ruling was that “intentional discrimination based on religious affiliation must survive heightened equal-protection review” (which he stated includes both “strict scrutiny” and “intermediate scrutiny,” though he did not say which of those two tests should be employed here) not merely rational basis review.
In ringing language, Judge Ambro concluded his opinion by observing that it is in times of threats to national security that there is the greatest need to protect civil rights. “What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. 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 (1944).
This is a lengthy opinion (with a one-page concurrence by Judge Roth on the issue of the correct standard for equal protection review, in which Judge Roth states that she is “happy with [her] condition” as a woman, and that since discrimination claims by women are given “intermediate scrutiny,” so should the claims here). But it is a magnificent one. It is well worth reading in full, and it will be long remembered.