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 faith.”

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’ 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,