January 7, 2016 — In a landmark settlement announced today, the New York City Police Department has agreed to reforms designed to protect New York Muslims and others from discriminatory and unjustified surveillance. As a further safeguard, the settlement installs a civilian representative within the NYPD to act as a check on investigations involving political or religious activity.
The settlement was reached in two lawsuits, Raza v. City of New York and Handschu v. Special Services Division.
Raza was brought in June 2013 by the New York Civil Liberties Union, the American Civil Liberties Union, the Creating Law Enforcement Accountability & Responsibility (CLEAR) project of Main Street Legal Services at CUNY School of Law, and the law firm Morrison & Foerster LLP on behalf of religious and community leaders, mosques and a charitable organization, alleging they were swept up in the NYPD’s dragnet surveillance of Muslims. The suit charged that the NYPD violated the U.S. and New York State Constitutions by singling out and stigmatizing entire communities of New Yorkers based on their religion. The case sought systemic reforms to prevent law enforcement abuses.
Separately, lawyers, including the NYCLU, in Handschu filed papers in 2013 arguing that the NYPD’s investigations of Muslims violated a long-standing consent decree in that case, which was a class action to protect New Yorkers’ lawful political and religious activities from unwarranted NYPD surveillance.
The agreement is subject to court approval in both the Raza and Handschu cases and is the result of negotiations undertaken for over a year. The rules currently governing NYPD surveillance of political and other First Amendment-protected activity are called the Handschu Guidelines. They were originally ordered by the Handschu court in 1985 and were weakened in 2003 following NYPD requests to the court.
The proposed settlement includes modification of the guidelines along two principal lines: incorporating new safeguards and installing a civilian representative within the NYPD to reinforce all safeguards.
The settlement and reforms include these changes:
- Prohibiting investigations in which race, religion or ethnicity is a substantial or motivating factor.
- Requiring articulable and factual information regarding possible unlawful activity before the NYPD can launch a preliminary investigation into political or religious activity.
- Requiring the NYPD to account for the potential effect of investigative techniques on constitutionally-protected activities such as religious worship and political meetings.
- Limiting the NYPD’s use of undercovers and confidential informants to situations in which the information sought cannot reasonably be obtained in a timely and effective way by less intrusive means.
- Putting an end to open-ended investigations by imposing presumptive time limits and requiring reviews of ongoing investigations every six months.
- Installing a civilian representative within the NYPD with the power and obligation to ensure all safeguards are followed and to serve as a check on investigations directed at political and religious activities. The civilian representative must record and report any violations to the police commissioner, who must investigate violations and report back to the civilian representative. If violations are systematic, the civilian representative must report them directly to the judge in the Handschu case.
- Removing from the NYPD website the discredited and unscientific Radicalization in the West report, which justified discriminatory surveillance, and affirming that the report is not and will not be relied upon to open or prolong NYPD investigations.
Because the settlement involves modifications to the court-ordered Handschu Guidelines, and because Handschu is a class action, the federal judge presiding over the Handschu case must approve them. Before he does so, the court will hold a hearing at which members of the plaintiff class can speak.
Below are reactions to the agreement:
Arthur Eisenberg, NYCLU legal director:
“This settlement is a win for all New Yorkers. It will curtail practices that wrongly stigmatize individuals simply on the basis of their religion, race or ethnicity. At the same time, the NYPD's investigative practices will be rendered more effective by focusing on criminal behavior. The preservation of constitutional freedoms and the protection of public safety are not incompatible.”
Hina Shamsi, ACLU National Security Project director:
“For the first time, this watershed settlement puts much needed constraints on law enforcement’s discriminatory and unjustified surveillance of Muslims. At a time of rampant anti-Muslim hysteria and prejudice nationwide, this agreement with the country’s largest police force sends a forceful message that bias-based policing is unlawful, harmful, and unnecessary. We hope the NYPD’s reforms help make clear that effective policing can and must be achieved without unconstitutional religious profiling of Muslim or any other communities.”
Imam Hamid Hassan Raza, lead plaintiff in the Raza suit:
“In America, we have the right to stand up and speak out in response to unfairness and injustice, just as throughout this country’s history, other minorities have done the same thing and secured their rights. We believe we have made important progress with this settlement, not only for New York Muslim communities but for other minorities in New York and beyond.”
Ramzi Kassem, CLEAR founding director and CUNY professor of law:
“Despite the fear and stigma that unwarranted NYPD spying has fostered in Muslim communities, representatives of those communities and their allies organized and took a courageous stand to demand change, through this lawsuit and in many other ways. This settlement offers all New Yorkers a solid platform from which to pursue further reform.”
In addition to Shamsi, Kassem, and Eisenberg, lawyers on the Raza case include Beth Haroules of the NYCLU, Patrick Toomey and Ashley Gorski of the ACLU, Naz Ahmad of CLEAR, and Hector Gallegos, Kyle Mooney and Adam Hunt of Morrison & Foerster LLP.
Lawyers on the Handschu case are Eisenberg, Jethro M. Eisenstein, Martin R. Stolar, Paul G. Chevigny and Franklin Siegel.