NYCLA Letter to Mayor de Blasio on Discriminatory Surveillance Against Muslim New Yorkers

 

NYCLA Letter to Mayor de Blasio on Discriminatory Surveillance Against Muslim New Yorkers

 

May 21, 2014

 

Hon. Bill de Blasio

Mayor

City Hall

New York, NY 10007

 

Dear Mayor de Blasio:

 

The members of the New York County Lawyers’ Association’s (“NYCLA”) Civil Rights and Liberties Committee (the “Committee”) write today with regard to suspicionless surveillance of Muslim communities by the New York Police Department (“the NYPD”). We commend Commissioner Bratton’s swift action to disband the NYPD’s Demographics Unit. We must, however, urge you to take further steps to restore the civil rights and liberties of members of the City’s Muslim communities; to put an end to all programs that permit suspicionless surveillance of Muslim New Yorkers; and to insure that standards are implemented that preclude the discriminatory targeting of minority communities.

 

1. RECOMMENDATIONS

 

Today, Muslims residing in New York City face far fewer threats of racial profiling than when the Demographics Unit was operational; however, other threats to Muslim New Yorkers’ civil liberties remain. We urge you to take the following steps to protect Muslim New Yorkers’ constitutional rights:

 

• Withdraw Corporation Counsel’s defense to Handschu v. City of New York and Raza v. City of New York two pending lawsuits challenging the NYPD’s decade-long suspicionless surveillance of the City’s Muslims. Despite the disbanding of the Demographics Unit, Corporation Counsel’s continuing defense is inconsistent with your administration’s commitment to the City’s Muslim communities. Further, the Police Department’s retention of dossiers on law-abiding Muslims, compiled by the Demographics Unit and maintained until the prospective end of litigation, violates the privacy of thousands of unfairly targeted Muslims.

• Reestablish the “specific information” standard governing NYPP investigations. Though the Demographics Unit no longer operates, the persistence of a lower investigatory standard, which gave rise to the impugned activities of the Unit, may invite constitutionally dubious investigatory practices in the future. Moreover, on the campaign trail you endorsed a return to the previous “specific information” standard, stating investigation “that is not based on specific leads should not continue.”

• Disband the NYPD’s City wide Debriefing Team. The activities of this team raise many of the same civil liberties concerns as did the Demographics Unit.

 

2. DISCUSSION

 

A, Pending Litigation

 

Since 2013, the City of New York has opposed two federal lawsuits alleging civil rights violations of Muslim communities by the Demographics Unit. While both suits sought the disbanding of the impugned unit, they also sought further injunctive relief that has yet to be granted. In Raza, brought by three Muslim private citizens and two mosques, Plaintiffs allege NYPD surveillance of protected activities violated their rights under the state and federal constitutions, In Handschu, a case previously settled by Consent Decree, Plaintiffs allege the NYPD’s surveillance of Muslims violated the terms of the settlement guidelines. Plaintiffs’ claims in both cases are based in part on information contained in internal Demographics Unit documents that were made public by the Associated Press. Plaintiffs in both cases seek to prohibit the NYPD from engaging in surveillance based solely or predominantly upon religion; to expunge all records created as a result of the impugned practices; and to appoint an independent monitor or auditor to ensure compliance. We appreciate that your ongoing review of NYPD surveillance has already yielded results but we have noted the City’s vow to maintain Demographics Unit’s files until the outcome of the litigation. Given the NYPD’s past actions and your administration’s commitment to enhancing New Yorkers’ civil rights, however, we ask that you discontinue the defense of these suits and consent to the injunctive relief sought by the plaintiffs. The implementation of strict investigatory standards has historically played an important role in reforming police practices and safeguarding civil rights. A landmark class action lawsuit was launched in 1971 challenging the NYPD’s surveillance of plaintiffs political activities. The lawsuit was settled in 1986 when the City signed a Consent Decree (“Consent Decree”) and Hon. Charles S. Haight Jr. of the Southern District of New York issued guidelines to ensure that future police surveillance respected New Yorkers’ civil rights. The original Guidelines established a police-civilian Authority with oversight of Intelligence Unit investigations and required “specific evidence” of unlawful activity in order to launch an investigation. These Guidelines remained in force until 2003, when they were relaxed in response to counterterrorism concerns raised by the NYPD. It is the Modified Handschu Guidelines (“Modified Guidelines”) under which the NYPD operates today.

 

As revised, the Modified Guidelines eschew the “specific evidence” standard, permitting NYPD officers to conduct a preliminary inquiry when they find a “possibility of unlawful activity” and a full investigation when they find a “reasonable indication” of such activity. The Modified Guidelines further permit NYPD officers to “visit any place and attend any event that is open to the public,” While the Modified Guidelines leave intact a joint police-civilian “Authority,” the modification stripped the body of its investigation- vetting function and, perhaps as a consequence, the Authority has not received a single civilian complaint since 2003. Lowered to a sub-probable cause standard, and stripped of practical oversight, the relaxed post 9/11 Modified Guidelines invited generalized anti- Muslim bias and religious profiling, in place of legitimate intelligence-gathering operations based on specific leads.

 

When the Demographics Unit was operational and functioning under the Modified Guidelines, its actions had a serious impact on the civil rights of Muslim New Yorkers. The NYPD mapped Muslim-owned businesses and singled them out for surveillance.

 

 The NYPD used the religious beliefs of business owners and customers as a basis for increased scrutiny. Muslim places of worship and religious organizations were infiltrated and subjected to surveillance as police “trained video cameras on mosques…[and] collected license plates of worshippers.” In a case that is now the basis of allegations in Raza, Plaintiff Shamiur Rahman was employed by the NYPD as an informant “mosque crawler,” reporting on the day-to-day religious activities of imams, collecting information on the activities of congregants, and filing surveillance reports from the 2012 Muslim Day Parade.

 

The unfair targeting of protected activities by the Demographics Unit would not have been possible under the specific evidence standard. We applaud your administration for disbanding the NYPD’s Demographics Unit, and urge you to affirmatively direct the NYPD to embrace a standard of proof for all of its operations that comports with constitutional norms.

C. Constitutional Issues Raised by the Activities of the NYPD’s Citywide Debriefing Team

 

The persistence of the modified investigatory standard is particularly troubling in light of recent news reports that the NYPD continues to maintain a program that unlawfully targets Muslim New Yorkers and Muslim organizations for surveillance. An analysis of reports generated by the NYPD’s Citywide Debriefing Team reveals that police sought to recruit Muslim informants without regard to their proximity to or knowledge of criminal activity. Questioning of Muslim prisoners, including those held on minor infractions and violations, frequently involved discussion of religion, mosques attended, and lawful religious activities and events.

 

The Citywide Debriefing Team’s actions raise similar constitutional concerns to those implicated in the operations of the now-defunct Demographics Unit. As pled in Raza, the chilling effect of such surveillance on Muslim communities raises First Amendment concerns relating to freedoms of speech and assembly, as well as Establishment Clause concerns. The continued existence of the Citywide Debriefing Program places a similar chilling effect on Muslim New Yorker’s constitutional rights.

 

3. CONCLUSION

 

In closing, we commend the significant steps your administration has taken to restore the civil rights and liberties of New York City’s minority communities. We urge you to take the additional necessary steps to close the chapter in our City’s history of suspicionless surveillance and discriminatory policing.

 

Sincerely,

 

Samuel B. Cohen, Esq.

NYCLA Civil Rights and Liberties Committee Chair

 

Elliot Dolby-Shields, Esq.

NYCLA Civil Rights and Liberties Committee Vice-Chair

 

Ria Julien, Esq.

NYCLA Civil Rights and Liberties Committee

Domestic Surveillance Subcommittee Chair, Primary Author

 

Eleanor Cappogrosso, Esq.

NYCLA Civil Rights and Liberties Committee

Domestic Surveillance Subcommittee Member, Contributor

 

jennie Kim, Esq.

NYCLA Civil Rights and Liberties Committee

Domestic Surveillance Subcommittee Member, Contributor

1.The views expressed are those of the Committee only, have not been approved by the New York County Lawyers’ Association Board of Directors and do not necessarily represent the views of the Board,

2. See Def. Br., Handschu v. Special Services Div., N;. 7j Civ. 2203 (CSH) (S.D.N.Y. May 17, 2013), available at http://www.nyc.gov/html/nypd/downloads/pdf/pr/defendants_brief_in_opposition_to_motion.pdf;

3.See also Def. Answer, Raza et al. v. City of New York et al, No. 13 Civ. 3448 (PKC)(JMA) (Sept. 9, E.D.N.Y. 2013), available at https://www.aclu.org/sites/default/files/assets/raza_nypd_answer.pdf.

Bill de Blasio, Meet the Candidates: Call Bill de Blasio, The Brian Lehrer Show, Sept. 4, 2013, available at http://www.wnyc.org/story/315506-candidate-de-blasio/.

4. See e.g., New York Police Recruit Muslims To Be Informers, N.Y. TIMES, May 10,2014, available at http://www.nytimes.com/2014/05/ll/nyregion/new-york-police-recruit-muslims-to-be-informers.htmL

5. Compl, Dist. LEXIS 166820,. (E.D.N.Y. June 18,2013), available at

https://www.aclu.org/sites/default/files/assets/nypd_surveillance_complaint_-_final_06182013__1 .pdf.

6.Notice of Motion for Injunctive Relief and of Appointment of an Auditor or Monitor, No. 71 Civ. 2203 (CSH) (S.D.N.Y, Feb. 4, 2013), available at

http://www.nyclu.org/files/releases/Handschu_Notice_of_MotionforInjunctiveRelief_2.4.13 .pdf.

7. Handschu, 349 F.Supp. 766 (S.D.N.Y. 1972) (” Handschu F) (alleging violations of the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the Constitution).

8. Handschu, 605 F.Supp. 1384 (S.D.N.Y.1985), affd 787 F.2d 828 (2d Cir.1986) (“Handschu III).

Handschu, 273 F.Supp.2d 327 (S.D.NY. 2003) (Handschu IV”).

10. Id. at 346.

11. Id. 

12. Matt Sledge, NYPD Oversight Board Still Sits On Sidelines Despite Controversial Police Spying, BUFFINGTON POST NEW YORK, April 14, 2014, available at http://www.huffingtonpost.com/20 l4/04/14/nypd­ oversight_n_5147265.html.

13. See, e.g., Egyptian Locations of Interest Report, NYPD INTELLIGENCE Division: DEMOGRAPHICS UNIT (July 7, 2006), available at http://hosted.ap.org/specials/interactives/documents/nypd/nypd-egypt.pdf; NYPD Intelligence Division, Demographics Unit, Syrian Locations of Concern Report 1, available at

http://hosted.ap.org/specials/interactives/documents/nypd/nypd-syria.pdf; NYPD Intelligence Division, Demographics Unit, Albanian Locations of Concern Report 6-7,41, available at http://hosted.ap.org/specials/interactives/documents/nypd/nypd-albania.pdf.

14. See, e.g., Matt Apuzzo & Adam Goldman, Documents show NY police watched devout Muslims, ASSOCIATED PRESS, Sept. 6,2011, available at http://www.ap.org/Content/AP-In-The-News/2011 /Documents-show-NY-police- watched-devout-Muslims.

15. Matt Apuzzo & Adam Goldman, Informant: NYPD Paid Me to Bait Muslims, ASSOCIATED PRESS, Oct. 23,2012,, available at http://www.ap.org/Content/AP-In-The-News/2012/Informant-NYPD-paid-me-to-bait-Muslims.

16. See supra, footnote 12 .