By Hina Shamsi, Director, ACLU National Security Project
A settlement in the American Civil Liberties Union (ACLU) challenge to NYPD surveillance of New York Muslims has been announced, heralding new safeguards to protect against bias-based and unjustified investigations of Muslim and other minority communities.
The settlement was announced in Raza v. City of New York, a lawsuit on behalf of three New York Muslims, two mosques, and a Muslim non-profit organization, who alleged they were swept up in the NYPD’s dragnet surveillance of Muslims.
The ACLU, the New York Civil Liberties Union, and the CLEAR project at CUNY School of Law filed the suit in 2013. The law firm of Morrison & Foerster LLP also joined the litigation.
The lawsuit charged that the NYPD mapped Muslim communities and their institutions, sent officers and informants into mosques to monitor innocent religious leaders and congregants, and used other invasive means to spy on Muslims.
The settlement, which is subject to court approval, imposes a number of important safeguards.
These include an anti-religious-discrimination policy, safeguards to constrain intrusive investigatory practices, a limitation on the use of undercover officers and informants, and — critically — the appointment of an outside civilian representative to ensure all safeguards are followed and enforced.
This settlement is a win for New York Muslims and for all New Yorkers, who have a right to be free from discriminatory police surveillance and to practice their religion without stigma or fear.
It’s also a win for the rest of the country as it marks the first time that any meaningful safeguards have been imposed to prevent discriminatory surveillance of American Muslim communities.
At a time of rampant anti-Muslim hysteria and discrimination nationwide, this settlement sends a forceful message throughout the country, demonstrating that law enforcement can and must do its job without resorting to discriminatory practices.
As a result of the proposed settlement, the NYPD will explicitly recognize the right to be free from investigations in which race, religion, or ethnicity is a substantial or motivating factor.
There will now be presumptive time limits on investigations, precluding open-ended and unjustified investigations, as well as mandatory six-month reviews of ongoing investigations.
The NYPD will also be required to consider the potential impact of its investigative techniques on religious activity. It will limit its use of undercovers or informants to situations in which the NYPD determines that the information sought cannot be obtained in a reasonably timely and effective way by less intrusive means.
Additionally, to initiate a preliminary inquiry, the NYPD will need articulable and factual allegations indicating possible criminal activity. In other words, the NYPD will not be able to open these investigations on the basis of a mere hunch — or bias.
Critically, the settlement would also install a civilian representative within the NYPD, who will have the power and obligation to serve as a check on investigations directed at political and religious activity.
Finally, the NYPD will remove from its website its “Radicalization in the West” report, which sets out a discredited, junk-science-based theory purporting to identify how individuals transform into terrorists. That report provided the analytic underpinnings of discriminatory surveillance against Muslims. The NYPD affirms that it does not and will not rely on the report to open or extend investigations.