Pro Bono Amicus Brief Cited by Court of Appeals in Religious Profiling Case

November 9, 2015

An amicus brief filed by Kaye Scholer on behalf of 17 American Muslim civil rights organizations was cited by the Third Circuit Court of Appeals in its October 13 Hassan v. City of New York decision. Of the many amicus briefs filed in this case, our firm’s brief was the only one cited by the Court of Appeals.

Hassan v. City of New York is a federal lawsuit alleging that an extensive counter-terrorism program initiated by the NYPD in the years following 9/11 surveilled American Muslims and their communities based solely on their faith, and not on any suspicion of wrongdoing, in violation of their civil rights. The district court dismissed the suit for failure to state a claim because the program, in the court’s view, was designed for the legitimate purpose of uncovering terrorist plots. In support of plaintiffs’ appeal, our amicus brief set forth empirical evidence to undermine the district court’s sua sponte assumption that surveillance of entire Muslim communities was necessary to meet the NYPD’s objectives. We highlighted the immeasurable contributions made by Muslims to American society, the widespread belief that they are proponents of terrorism despite copious evidence to the contrary, and the discrimination and resultant harm that they suffer as a result of this misconception.

In reversing the district court’s decision and reinstating the suit, the Third Circuit ruled for the first time that a heightened level of scrutiny applies to a government program that burdens citizens based on their religion. The Third Circuit explained the need for this heightened standard by juxtaposing the country’s time-honored commitment to religious liberty with the continuing prejudice that American Muslims face to this day—citing our brief. Under this standard, the court found that the government’s citation to national security interests in defense of its program, while important interests to uphold, was insufficient, at the pleading stage, to defeat plaintiffs’ claims of intentional religious discrimination. 

The successful Kaye Scholer team consisted of litigation special counsel Gregory Wallance (above left), litigation staff attorney Stewart Wallace (above right), first year associates (then summer associates) John Hunt and Jennifer Oh, and former associate Michael Robertson.

This is the second amicus brief in a row that Gregory and Stewart have worked on that a US Court of Appeals has cited in support of its decision, in that instance the Second Circuit affirming the denial of a Hague Convention petition in Ermini v. Vittori.

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