New opinion — Court revives major post-9/11 civil rights suit

Hassan v. City of New York — civil rights — reversal — Ambro

Here’s how today’s opinion begins (cites and parentheticals omitted):

Plaintiffs appeal the dismissal of their civil-rights suit
against the City of New York. They claim to be
targets of a wide-ranging surveillance program that the New
York City Police Department began in the
wake of the September 11, 2001 terrorist attacks. 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.” 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

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 equalprotection
rights? If so, taking Plaintiffs’ non-conclusory
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 courts in safeguarding our Constitution, and the
protection of our civil liberties and rights equally during
wartime and in peace.

And the 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 (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
(Murphy, J., dissenting).
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).
We reverse and remand for further proceedings
consistent with this opinion.

Obviously a sweeping and important opinion. I’m looking forward to reading it with care, but I’ve got a Third Circuit opening brief due today so I’ll have to wait.

Joining Ambro were Fuentes and Roth; Roth issued a short concurrence. Arguing counsel were Baher Azmy of the Center for Constitutional Rights for the plaintiffs and Peter Farrell for the city,