June 17, 2013
Did the NYPD’s Spying on Muslims Violate the Law?
Posted on Mar 1, 2012
By Justin Elliott, ProPublica
ProPublica: What other rules does the NYPD operate under?
Patel: The second set is that the NYPD has a profiling order in place, and New York City also has a racial profiling law. They are slightly different. The NYPD order [issued in 2002] does not include religion among the categories that they define as profiling. But the New York City law does. It prohibits police officers from relying on race, ethnicity, religion or national origin as a determinative factor in initiating law enforcement action. Normally, you have quite a difficult time in racial profiling cases showing they’ve used one of these factors as the determinative factor. In this case, if you look at the documents, it seems quite clear that the NYPD had its eyes quite firmly on the Muslim community, so it’s possible it is also in violation of this law.
The third set of rules is, of course, the U.S. and New York state constitutions. Within the [U.S.] Constitution, you’re looking at at least two broad categories of provisions—potential First Amendment claims for free speech, freedom of association and free exercise of religion. The other piece of it would be potential equal protection claims.
ProPublica: Another AP story this week reported that federal grant money and equipment were used in the NYPD surveillance and investigation of the Muslim community. Does that muddy the legal questions about whether the police were following federal rules?
ProPublica: So, if the NYPD did potentially violate the Handschu guidelines and city law you mentioned, what are the penalties?
Patel: Well, the Handschu lawyers already went to court last year and told the judge that the documents that had been released by the AP suggested that there had been violations of the Handschu decree. They asked for discovery so they could check the files of the NYPD to see whether they had violated the prohibition on keeping dossiers. I believe that that discovery will likely be starting soon. So, there’s clearly a remedy through the Handschu mechanism. Because it’s a consent decree, it’s an ongoing thing. The judge has supervisory jurisdiction. There are also issues under the racial profiling law and under the First Amendment.
We’ve also turned to the question of oversight. The FBI, for all its faults, does have a fair amount of oversight—an inspector general internally and congressional oversight. We think a similar thing would be a great idea for the NYPD.
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