Landmark Settlement Protects American Muslims From Discriminatory NYPD Surveillance

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 American Civil Liberties Union, the Creating Law Enforcement Accountability & Responsibility (CLEAR) project of Main Street Legal Services at CUNY School of Law, the New York Civil Liberties Union, 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 in Handschu argued 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.