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Date Created:February 20, 2014

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Civ. No. 2:12-3401 (WJM) 

This case involves the New York City Police Departments surveillance the Muslim community New Jersey following the attacks September 11, 2001.  Plaintiffs are six Muslim individuals, two organizations that operate mosques, two Muslim-owned businesses, and the Muslim Students Association Rutgers University.  Plaintiffs allege that the New York City Police Departments surveillance program targeted Muslims solely the basis religion, thereby violating their First and Fourteenth Amendment rights.  Defendant City New York (the City) filed motion dismiss for lack standing under Federal Rule Civil Procedure 12(b)(1) and for failure state claim under Federal Rule Civil Procedure 12(b)(6).  Plaintiffs opposed.  There was oral argument.  L.Civ.R. 78(b).  For the reasons set forth below, Defendants motion dismiss GRANTED. BACKGROUND early 2002, the New York City Police Department (NYPD the Department) began secret spying program (the Program) infiltrate and monitor Muslim life and around New York City.  (Amended Complaint (hereinafter Complaint)   According Plaintiffs, the Program involved the painstaking documentation the details Muslim life New Jersey.  (Complaint  47d)   
The Complaint alleges that the NYPD used variety surveillance techniques infiltrate Muslim businesses and organizations.  For example, Plaintiffs allege the NYPD conducted continuous video surveillance mosques via cameras posted light polls.  (Complaint  46)  The NYPD photographed and videotaped mosque congregants and collected their license plate numbers.  (Complaint  
Undercover officers infiltrated Muslim organizations and monitored sermons, meetings, conversations, and religious practices.  (Complaint  46-47, 50-51)  The undercover officers created many reports their observations.  These reports named specific individuals without any evidence wrongdoing.  (Complaint  51) their reports, the NYPD allegedly labeled many organizations Locations Concern.  (Complaint  58)  The Complaint alleges that this label designated the subject organizations demonstrating a significant pattern illegal activity.  (Id.)  The Complaint alleges that this label was false and stigmatizing because the reports contain evidence illegal activity.  (see id.) 
The NYPD did not publicize the existence the Program.  The Program became public knowledge August 2011 when the Associated Press broke story about it.  (See Complaint  61; Declaration Peter Farrell (Farrell Decl.)   The Associated Press covertly obtained confidential NYPD documents and published unredacted versions these documents, well articles interpreting the documents.  (Farrell Decl.  Moving Brief 2-3, 17-18)  Upon the Associated Presss publication the documents, City officials publicly commented that the surveillance Program was focused threats and documenting the likely whereabouts terrorists.  (Complaint  61) Following the Associated Press publication about the secret Program, the Attorney General New Jersey conducted investigation and concluded that that NYPD had not violated any New Jersey civil criminal laws.  (Farrell Decl.  
Collectively, Plaintiffs allege that the surveillance Program caused series spiritual, stigmatic, and pecuniary losses.  Plaintiffs report diminished religious expression, employment prospects, property values, and revenue following the Associated Presss publication its story about the Program.    
The organizational Plaintiffs allege that the Program impaired them from engaging members open political and religious discussion and from fulfilling the spiritual needs their members.  (See Complaint  15, 17, 23)  The Plaintiffs that operate mosques report drop attendance.  (Complaint  14)  They also report altering religious services and events avoid being perceived controversial.  (Complaint  23)  Four the individually-named Plaintiffs complain that they have avoided discussing religious and political topics, praying public, attending mosque service order avoid law enforcement scrutiny.  (Complaint  13, 26-30) 
Plaintiffs Syed Hassan, Soofia Tahir, and Zaimah Abdur-Rahim fear that being the subjects surveillance will interfere with their careers.  Hassan U.S. Soldier and Tahir expecting begin career international social work.  Both plaintiffs allege that career advancement will require background checks and security clearances.  Both allege that their affiliations with organizations falsely labeled threats will hinder their career advancement.  (Complaint  13, 29)  Hassan also alleges that his career prospects will harmed because his fellow soldiers and superiors will have diminished trust him and treat him differently upon learning was regular congregant mosque that was the subject surveillance.  (Complaint  13) 
Abdur-Rahim teacher who has worked two different Muslim girls schools Newark, one which was run out her own residence.  (Complaint  31-32)  The NYPD conducted surveillance both these schools.  Abdur-Rahim alleges that result working two monitored schools, her future career prospects will diminished.  (Complaint  32) 
Abdur-Rahim and her husband, Plaintiff Abdul-Hakim Abdullah, are co-owners the home which one the monitored schools was located.  (Complaint  32, 34) police surveillance photograph this school appears the internet connection with the NYPDs surveillance Program.  (Complaint  32)  Abdur-Rahim and Abdullah both allege that the value their home has been diminished because its connection the Program.  (Complaint  32, 34) 
Plaintiffs All Body Shop Inside Outside and Unity Beef Sausage Company are Muslim-owned businesses Newark that were both subjects the surveillance Program.  (Complaint  18-21)  Both these Plaintiffs allege that business declined when became publically known that the NYPD was monitoring them.  (Complaint  18, 20)  Customers told the owner Unity Beef Sausage Company that they felt uncomfortable going the store knowing that the NYPD was monitoring them.  (Complaint  21)  The Plaintiffs that operate mosques also complain pecuniary losses the form decreasing financial support.  (Complaint  15)  
The Complaint does not allege that the surveillance itself was illegal unconstitutional.  Rather, the Complaint alleges that the motivation for the surveillance was solely animus against Muslims, which, true, could mean the City violated Plaintiffs First and Fourteenth Amendment rights free from religious discrimination. 
Plaintiffs seek expungement the surveillance records, injunction end the targeting Plaintiffs the basis religion, well compensatory, economic, and nominal damages.  (Complaint  73) 

The City argues that Plaintiffs Complaint should dismissed for lack standing. case should dismissed under Federal Rule Civil Procedure 12(b)(1) for lack subject matter jurisdiction the Plaintiff has standing.  Ballentine United States, 486 F.3d 806, 810 (3d Cir. 2007).  Plaintiff bears the burden demonstrating standing with the manner and degree evidence required the successive stages the litigation.  New Jersey Physicians, Inc. President U.S., 653 F.3d 234, 239 (3d Cir. 2011) (citing Lujan Defenders Wildlife, 504 U.S. 555, 561 (1992)).  Even the motion dismiss stage [i]t long-settled principle that standing cannot inferred argumentatively from averments the pleadings but rather must affirmatively appear the record.  Id. 239 (quoting FW/PBS, Inc. City Dallas, 493 U.S. 215, 231 (1990)). 
Article III standing fundamental the judiciarys proper role our system government.  DaimlerChrysler Corp. Cuno, 547 U.S. 332, 341 (2006).  If dispute not proper case controversy, the courts have business deciding it, expounding the law the course doing so.  Id. 341.   
The starting point for the analysis Plaintiffs standing Lujan Defenders Wildlife, 504 U.S. 555 (1992). order establish the constitutional minimum standing, party must establish three elements.  First, the plaintiff must have suffered injury fact  invasion legally protected interest which (a) concrete and particularized, and (b) actual imminent, not conjectural hypothetical.  Second, there must causal connection between the injury and the conduct complained  the injury has fairly trace[able] the challenged action the defendant, and not the result [of] the independent action some third party not before the court.  Third, must likely, opposed merely speculative, that the injury will redressed favorable decision. Lujan, 504 U.S. 560-61 (internal citations omitted).  Plaintiffs have not satisfied the first two prongs the test. Injury fact 

Plaintiffs not allege injury fact. Laird Tatum, 408 U.S. (1972), the Supreme Court considered allegations similar those this case and rejected them basis for Article III standing. Laird, plaintiffs sought injunctive relief against the Armys surveillance civilian political activity.  The Armys information gathering system Laird involved the attendance Army intelligence agents meetings that were open the public, the preparation field reports describing the meetings (containing the name the sponsoring organization, the identity the speakers, the number persons present, and indication whether any disorder occurred), and the collecting information from the news media.  Id.  This information was reported Army Intelligence headquarters, disseminated from headquarters major Army posts around the country, and stored computer data bank.  Id. 6-7. 
The Supreme Court identified the issue before whether the jurisdiction federal court may invoked complainant who alleges that the exercise his First Amendment rights being chilled the mere existence, without more, governmental investigative and data gathering activity that alleged broader scope than reasonably necessary for the accomplishment valid governmental purpose.  Id. 10.  Accordingly, the Court found that the plaintiffs lacked standing because [a]llegations subjective chill are not adequate substitute for claim specific present objective harm threat specific future harm [.]  Id. 13-14.  The plaintiffs were not able demonstrate that they were chilled any specific action the Army against them.  Id.  Thus, the Court refused grant the plaintiffs what they really sought through the litigation: a broad-scale investigation, conducted themselves private parties armed with the 
subpoena power federal district court and the power cross examination, probe into the Armys intelligence-gathering activities.  Id. l4. 
The allegations this Complaint mirror those Laird.  For this reason, the court finds that there was injury-in-fact. Causation 
Even Plaintiffs had injury fact, they have not demonstrated the required causation element standing. party does not have standing when the injury-in-fact alleged manifestly the product the independent action third party.  Duquesne Light Co. U.S. E.P.A., 166 F.3d 609, 613 (3d Cir. 1999).  Defendant argues that the Associated Press and not the City the manifest cause Plaintiffs alleged injuries.  (Moving Brief 17.)  Plaintiffs argue that existing case law holds the action newspaper reporting government program independent action third party.  (Plaintiffs Brief 36.)  Defendants argument more persuasive. 
None the Plaintiffs injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation those documents.  Nowhere the Complaint Plaintiffs allege that they suffered harm prior the unauthorized release the documents the Associated Press.  This confirms that Plaintiffs alleged injuries flow from the Associated Presss unauthorized disclosure the documents.  The harms are not fairly traceable any act surveillance.  See Lujan, 504 U.S. 560-61. 
The court also persuaded distinction between this case and Philadelphia Yearly Meeting Religious Soc. Friends Tate, 519 F.2d 1335, (3d Cir. 1975).  Like this case, Philadelphia Yearly involved media coverage police surveillance program.  The media coverage publicly disclosed the names certain groups and individuals whom the Philadelphia Police Department was keeping surveillance records.  Id. 1337. Philadelphia Yearly, the court reiterated the Supreme Courts holding Laird that the surveillance itself was legal and that the surveillances mere existence did not cause concrete injury the Plaintiffs.  Id. 1337-38.   
However, the government Philadelphia Yearly openly cooperated with the press the publicizing the story.  The Third Circuit found this cooperation with the media improper.  Id. 1338.  The court stated: not apparent how making information concerning the lawful activities plaintiffs available non-police groups individuals could considered within the proper ambit law enforcement activity, particularly since alleged that plaintiffs are subject surveillance only because their political views deviate from those the establishment. 
Id. 1338 (3d Cir. 1975). 
Thus, the Philadelphia Yearly court found the claim justiciable the grounds that the police department had absence lawful purpose disclosing nationwide television that certain named persons organizations are subjects police intelligence files. contrast, the City New York did not make any information about the NYPD's Program available non-police groups.  The Associated Press covertly obtained the materials and published them without authorization.  Thus the injury, any existed, not fairly traceable the City. 
Although the Philadelphia Yearly court did find that the plaintiffs had justiciable claim, had Philadelphia Yearly been decided today, the court would have had dismiss for lack standing.  The court Philadelphia Yearly recognized that the plaintiffs alleged injuries were not concrete.  Id. 1339.  Philadelphia Yearly was decided well before Lujan Defenders Wildlife, 504 U.S. 555 (1992). Lujan, the Supreme Court held that standing required concrete and particularized injury.  Lujan, 504 U.S. 560.  Therefore, had Philadelphia Yearly reached the Third Circuit after Lujan, would have been highly improbable that the plaintiffs would have had standing. 
 For these reasons, Plaintiffs have demonstrated neither the injury fact element nor the causation elements standing required survive Rule 12(b)(1) motion. 

Even Plaintiffs did have standing sue, Plaintiffs still have not plead facts sufficient state claim for discrimination violation the First Fourteenth Amendments. 
Federal Rule Civil Procedure 12(b)(6) provides for the dismissal complaint, whole part, the plaintiff fails state claim upon which relief can granted.  The moving party bears the burden showing that claim has been stated.  Hedges United States, 404 F.3d 744, 750 (3d Cir. 2005). deciding motion dismiss under Rule 12(b)(6), court must take all allegations the complaint true and view them the light most favorable the plaintiff.  See Trump Hotels Casino Resorts, Inc. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing Warth Seldin, 422 U.S. 490, 501 (1975)).   
Although complaint need not contain detailed factual allegations, a plaintiffs obligation provide the grounds his entitlement relief requires more than labels and conclusions, and formulaic recitation the elements cause action will not do.  Bell Atl. Corp. Twombly, 550 U.S. 544, 555 (2007).  Thus, the factual allegations must sufficient raise plaintiffs right relief above speculative level, such that plausible its face.  See id. 570; see also Umland PLANCO Fin. Serv., Inc., 542 F.3d 59, (3d Cir. 2008). claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant liable for the misconduct alleged.  Ashcroft Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. 556).  While [t]he plausibility standard not akin probability requirement asks for more than sheer possibility.  Id. 678.  Where complaint pleads facts that are merely consistent with defendants liability, stops short the line between possibility and plausibility entitlement relief.  Id. 662 (quoting Twombly, 550 U.S. 557). 
Where the claim invidious discrimination based religion, Plaintiffs must plead (and ultimately prove) that the Defendant acted with discriminatory purpose.  Ashcroft Iqbal, 556 U.S. 676 (citing Church Lukumi Babalu Aye, Inc. Hialeah, 508 U.S. 520, 540-41 (1993)); Abdul-Akbar McKelvie, 239 F.3d 307, 317 (3d Cir. 2001).  Purposeful discrimination requires more than intent volition intent awareness consequences. involves decisionmakers undertaking course action because of, not merely spite of, [the actions] adverse effects upon identifiable group.  Iqbal, 556 U.S. 676-77 (quoting Personnel Administrator Mass. Feeney, 442 U.S. 256, 279 (1979)). follows that, state claim based violation constitutional right, Plaintiffs must plead sufficient factual matter show that the City adopted and implemented the surveillance program not for neutral, investigative reason but for the purpose discriminating account religion.  Iqbal, 556 U.S. 677, 682. 
[D]etermining whether complaint states plausible claim context-specific, requiring the reviewing court draw its experience and common sense.  Iqbal, 556 U.S. 663-64 (citing Twombly, 550 U.S. 556).  Ashcroft Iqbal particularly instructive here because the similar context.  Both Iqbal and this case grow out the same tensions between security and the treatment Muslims that particular the post-September time period. Iqbal, the plaintiff alleged that was detained high interest suspect and subjected particularly harsh conditions detention based upon his race, religion, national origin.  Although his allegations were consistent with discriminatory purpose, there was more likely explanation for his treatment high interest suspect.  Id. 681. the U.S. Supreme Court stated Iqbal: 
The September attacks were perpetrated Arab Muslim hijackers who counted themselves members good standing Qaeda, Islamic fundamentalist group. Qaeda was headed another Arab MuslimOsama bin Ladenand composed large part his Arab Muslim disciples. should come surprise that legitimate policy directing law enforcement arrest and detain individuals because their suspected link the attacks would produce disparate, incidental impact Arab Muslims, even though the purpose the policy was target neither Arabs nor Muslims. the facts [alleged] the arrests were likely lawful and justified [a] nondiscriminatory intent detain aliens who were illegally present the United States and who had potential connections those who committed terrorist acts. between that obvious alternative explanation for the arrests, Twombly, 550 U.S. 567, and the purposeful, invidious discrimination respondent asks infer, discrimination not plausible conclusion. 
Iqbal, 556 U.S. 682. 
For similar reasons, the Plaintiffs this case have not alleged facts from which can plausibly inferred that they were targeted solely because their religion.  The more likely explanation for the surveillance was desire locate budding terrorist conspiracies.  The most obvious reason for concluding that surveillance the Muslim community began just after the attacks September 11, 2001.  The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.  While this surveillance 
Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely discriminate against Muslims, but rather find Muslim terrorists hiding among ordinary, law-abiding Muslims. 

For the reasons stated above, Defendants motion dismiss GRANTED. appropriate order follows. 
            /s/ William Martini                         _____________________________              
Date: February 20, 2014