Class Action By Muslim Women Against NYPD Settled for $17.5M

 AP reports that New York City has agreed to settle the class action damage claim in Clark v. City of New York for $17.5 million. The suit brought in a New York federal district court under RLUIPA challenged the NYPD's former policy of requiring Muslim women to remove their hijabs when sitting for arrest photos. (See prior posting.) Under the settlement, which still must obtain judicial approval, the $17.5 million will be shared equally by all class members who file a claim, with each getting a minimum of $7,824.  Previously, settling the claims for an injunction and declaratory judgment, the police department agreed to change its arrest photo policy. (See prior posting).

Court Calls for Fuller Explanation for Denying Religious Exemption from COVOD Vaccine Mandate

 In Matter of Daniels v. New York City Police Dept., (Sup. Ct. NY County, April 24, 2023), a New York state trial court remanded to the City of New York Reasonable Accommodations Appeals Panel a claim for a religious exemption from the COVID vaccine mandate brought by a NYPD officer assigned to the Emergency Services Unit.  The initial determination by the NYPD Equal Employment Opportunity Division was communicated through a pre-printed form with three boxes checked off indicating insufficient documentation and explanation as well as a lack of a history of vaccine refusal.  The Appeals Panel merely adopted the EEOD's reasoning.  In calling for a fuller explanation, the court said in part:

The NYPD EEOD's determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action. The court has nothing before it that would enable it to analyze how the pre-printed "reasons" that were checked off on its determination letter related to or defeated the petitioner's request for accommodation. This type of conclusory administrative determination would require the court to speculate as to the thought processes of the person who checked the boxes, and provide its own reasons for those choices, an approach prohibited by longstanding rules of law.

NYPD Administrative Review of Religious Exemption Claim Was Arbitrary

In Matter of Quagliata v New York City Police Department, (NY County Sup. Ct., March 17, 2023), a New York state trial court remanded a case in which an administrative Panel refused to grant an NYPD police officer a religious exemption from New York City's COVID vaccine mandate. The court said in part:

Inasmuch as the Panel’s determination sets forth absolutely no rationale whatsoever for its conclusions, other than to incorporate the conclusory reasons articulated by the NYPD EEOD, the Panel’s determination is facially arbitrary and capricious, and may be annulled on that ground alone....

Even were the court directly to review the NYPD EEOD’s initial determination, it nonetheless would be constrained to conclude that the initial determination also was arbitrary and capricious. The NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action....

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed..., the petitioner’s contentions would have constituted a proper basis for an exemption... 

With respect to ... violation of his First Amendment right to free exercise of religion and discrimination in employment..., the petitioner has not established either that the City’s vaccine mandate or the termination of his own employment were premised upon religion, as he has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic.

Denial of NYPD Officer's Religious Objection to Vaccination Was Arbitrary and Capricious

 In Grullon v. City of New York, (NY County Sup. Ct., Feb. 3, 2023), a New York state trial court held that the New York Police Department's denial in internal appeals of a police officer's religious objections to the Department's Covid vaccine mandate was arbitrary and capricious. The court said in part:

[D]espite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.

The court concluded that the officer is entitled to employment with a reasonable accommodation of weekly Covid testing.

Court Says Idiosyncratic Personal Religious Beliefs May Not Support Religious Accommodation

In In re Moscatelli v. New York City Police Department, (NY Cnty. Sup. Ct., Dec. 22, 2022), a New York trial court annulled an administrative determination that denied a New York City Detective a religious exemption from the city's COVID vaccine mandate. The court held that the administrative determination was arbitrary and capricious, saying that "the NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action." The court went on, however, to say:

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed and explained by the Panel or the NYPD EEOD in the challenged decisions, those contentions would have constituted a proper basis for an exemption. That would have required a forthright engagement by those agencies with the religious contentions and arguments raised by the petitioner.... It would also have required some actual inquiry ... into the petitioner’s prior behavior concerning vaccines and medications. Had those agencies taken that approach, their determinations might have survived judicial scrutiny, as the petitioner provided scanty proof that the rejection of vaccinations or medications that have been developed, improved, or tested using fetal stem cells is an accepted tenet of Catholic doctrine, as opposed to a personal interpretation of doctrine by a lay person or even a few members of the clergy....

[T]he petitioner ... has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic....  Nor has he demonstrated that he had previously declined to be treated with [other] drugs ... which were either developed, improved, or recently tested by their manufacturers for adverse side effects using stem cells from aborted fetuses.

Muslim Women Can Move Ahead With Suit Challenging NYPD Arrest Photo Policy

In Clark v. City of New York, (SD NY, Sept. 17, 2021), a New York federal district court allowed two Muslim women to move ahead with their lawsuit under the 1st Amendment and RLUIPA challenging the New York City police department's requirement that they remove their hijab when sitting for an arrest photo. The court said in part:

Allowing an arrestee to maintain her ordinary appearance in a Booking Photograph does not undermine the legitimate interest of keeping a photographic record of arrestees... In fact, photographing the arrestee in her ordinary appearance likely furthers law enforcement’s interest in identification—rather than impeding such interest—because arrestees who have a sincere religious belief that requires them to wear a head covering are likely to be wearing that same covering when the need to identify them arises.

The court also refused to dismiss one of the plaintiff's assertion of a private right of action under the New York constitution. 

NYPD Settles Suit Over Religious Head Coverings In Mug Shots

 The Hill reported yesterday that the New York City Police Department has settled a lawsuit filed against it by two Muslim women last year challenging NYPD's policy of requiring persons arrested to remove their head coverings for a mug shot. (Full text of complaint in Clark v. City of New York, (SD NY, filed 3/16/2018)). The policy change agreed to in the settlement is described by the news report:

The new policy requires officers to “take all possible steps, when consistent with personal safety” to respect "privacy, rights and religious beliefs," with exceptions for weapons or contraband searches and a risk to safety, and the department will keep track of such instances for at least the next three years.

Certiorari Denied In Challenge To Kaporos Ritual

The U.S. Supreme Court on Monday denied review in Alliance to End Chickens as Kaporos v. New York City Police Department, (Docket No. 18-1322, certiorari denied 5/28/2019). (Order List.)  In the case, New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur ritual of kaporos should be denied. (See prior posting).

Settlement Reached With NYPD In Muslim Surveillance Case

Last week, a settlement agreement (filed in New Jersey federal district court on April 5) (full text) was reached in Hassan v. City of New York. As reported by the New York Times, this settles the last of three major lawsuits challenging the New York City Police Department's surveillance of the Muslim community following 9/11. This suit was brought by Muslims in New Jersey who had been subjects of surveillance.  The 3rd Circuit had refused to dismiss, holding that plaintiffs had adequately stated free exercise and equal protection claims (See prior posting.)  A press release from Muslim Advocates summarizes agreement:

Under the terms of the settlement, the NYPD has confirmed it will reform its discriminatory and unlawful practices by agreeing to:

• Not engage in suspicionless surveillance on the basis of religion or ethnicity;
• Permit plaintiff input to a first-ever Policy Guide, which will govern the Intelligence Bureau’s activities, and to publish the Guide to the public;
• Attend a public meeting with plaintiffs so they can express their concerns about the issues in the lawsuit directly to the NYPD Commissioner or senior ranking official;
• Pay businesses and mosques damages for income lost as a result of being unfairly targeted by the NYPD and pay individuals damages for the stigma and humiliation harms they suffered for being targeted on the basis of their religion.

NYPD Sued Over Mugshot Policy For Muslim Women

AP reported yesterday on a lawsuit filed in federal district court in New York against the New York Police Department by two Muslim women who were forced to remove their hijabs to pose for mugshots.  While the NYPD says that its policy allows persons wearing religious head coverings to be taken to  a separate more private facility before removing the head covering to be photographed, apparently that policy was not followed in the case of the plaintiffs in this lawsuit. The women along with the advocacy group Turning Point for Women and Families brought the lawsuit as a class action. [Thanks to Tom Rutledge for the lead.]

Suit Over Requirement To Remove Hijab For Booking Photo Moves Forward

In G.E. v. City of New York, (ED NY, Sept. 29, 2017), a New York federal district court refused to dismiss at summary judgment stage a free exercise claim by a Muslim woman who was required to remove her hijab for police booking photos.  Initially at the police precinct she was required to remove the head covering, but was allowed to do so in a private room with only a female photographer present.For a subsequent photo at Central Booking, she was required to remove her hijab with men present, despite her request to do so in a private room without men there.  The court said in part:

The City provides nothing in the way of record evidence (or for that matter, legal support) to explain why there were no alternative means of accommodating an arrestee’s religious beliefs at Central Booking at the time when G.E. was arrested – other than to recite the fact that the Central Booking camera was in a fixed location in view of both male and female detainees and staff. Nor does the City explain any resource, staff or other burdens the City would face were it to consider moving the camera, or providing some other accommodation. Not only are these factors central to the rational basis test itself, they are critical to the analysis here because the City did, in fact, change its policy to provide for such accommodation subsequent to G.E.’s arrest.

Various other claims by plaintiff were dismissed.

Revised Settlement Agreement Reached In Suits On NYPD Surveillance of Muslims

The ACLU on Monday announced a revised settlement agreement in two cases involving the New York Police Department's surveillance of Muslims. As previously reported, last November a federal district court judge rejected an initial settlement agreement's modifications of the so-called Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities. The agreement announced Monday responds to the judge's concerns.  The ACLU describes the changes as follows:

Under the new enhancements, the civilian representative has even greater authority, independence, and responsibility. She is empowered to report to the court at any time if there are violations of the Handschu Guidelines, is required to report systematic violations, and must report to the court on an annual basis. The mayor is prohibited from abolishing the civilian representative position without judicial approval, and abolition by order of the court is only permitted if there have not been systemic violations of the Handschu Guidelines for the preceding three years. The civilian representative is specifically authorized to review not just the opening or extension of investigations, but also how they are conducted. In addition, the civilian representative will review the propriety of the use of undercover officers or confidential informants — a source of great concern to communities.

Former NYPD Officer Sues Over Anti-Muslim Discrimination

A suit was filed last week in a New York federal district court by a former NYPD officer. Plaintiff, a Muslim, claims she suffered retaliation and a hostile work environment when she began to wear a hijab while on duty.  The complaint (full text) in Alamrani v. City of New York, (SD NY, filed 2/2/2017),  alleges in part:

From 2009 until 2012, Plaintiff Alamrani was ... constantly assigned to posts which do not allow her to earn overtime and was called discriminatory names on a daily basis like terrorist and Taliban. Also on a daily basis she would be told that she should not be a police officer, that she should not be allowed to wear the Hijab, that nobody wanted to work with her, that she was a disgrace to the NYPD and that nobody liked her along with other deriding comments.

In late 2012, fellow-officers tried to rip her hijab off her head. In subsequent years she was limited to working the night shift, and other retaliatory actions allegedly occurred. The suit claims violations of Title VII as well as of New York City and New York state law.  The Gothamist reports on the lawsuit.

NYPD To Allow Turbans and Beards For Religious Purposes

In an attempt to accommodate Sikh officers, the New York Police Department announced Wednesday that officers who are granted religious accommodation from the Department's Equal Opportunity Office will be allowed to wear one-half inch beards. They may also wear blue turbans  with a hat police shield attached, instead of the traditional police cap. New York Times and the New York Daily News report on the new policy which was announced by Police Commissioner  James O’Neill standing with a group of Sikh officers in turbans after an NYPD Academy graduation ceremony.

Judge Wants Greater Restrictions In Settlement of NYPD Muslim Surveillance Suit

As previously reported, in January the parties to a long-running class action challenging practices of the New York Police Department in surveillance Muslims reached a settlement agreement offering greater protections.  However, in Handschu v. Police Department of the City of New York, (SD NY, Oct. 28, 2016), the court rejected the proposed settlement, insisting on three additional restrictions.  As discussed in an ACLU press release on the decision:

The judge ... called for alterations that would:

Clarify the authority of an individual outside the NYPD (a civilian representative) to ensure the NYPD’s compliance with the “Handschu Guidelines” — which govern NYPD surveillance of political and religious activity — even beyond the terms of the reforms proposed by the settlement.

Require that the civilian representative established by the settlement report periodically to the court on the NYPD’s compliance. 

Require the mayor to seek court approval before abolishing the position of civilian representative.

New York Times reports on the decision.

Investigation Says NYPD Does Not Stick To Guidelines In Surveilling Muslims

The New York Police Department yesterday released an Inspector-General's report titled An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity.  Some 95% of the police investigations reviewed by the IG involved "individuals... predominantly associated with Muslims and/or engaged in political activity that those individuals associated with Islam." Here is an excerpt from the report:

[B]efore NYPD can begin investigating political activity – which could include surveillance within a mosque, church, or synagogue – it must articulate, in writing, the objective basis of need for the investigation and must secure approvals from senior NYPD officials. Further, permission is not open-ended; rather, it runs for a certain period of time, at the end of which NYPD must apply for (and justify) an extension or otherwise end the investigation. The thresholds for obtaining and extending permission in this area are not particularly high. The rules were amended after September 11, 2001, to accommodate the increased threat to the City.

OIG-NYPD’s investigation found that NYPD, while able to articulate a valid basis for commencing investigations, was often non-compliant with a number of the rules governing the conduct of these investigations.

VICE News discusses the NYPD report.

Muslim NYPD Officer Wins Temporary Relief Over Beard Length

Once again (see prior posting) the New York City Police Department's grooming rules are being challenged in court.  According to yesterday's New York Daily News, the NYPD on Tuesday imposed a 30-day suspension without pay on a Muslim officer who works as a law clerk for the Department. The officer, Masood Sayed, refused to shave his one-inch long beard. The NYPD had previously allowed him to wear a beard one millimeter in length, but said a longer beard would create problems with proper sealing of department-issued gas masks.  A federal district court yesterday, finding a likelihood of success by Sayed, barred the NYPD from taking further disciplinary action against him until a July 8 hearing.

Settlement Reached In Suit Over NYPD Surveillance of Muslims

In 2013, a suit captioned Raza v. City of New York was filed in a New York federal district court challenging the constitutionality of the New York Police Department's surveillance program directed at Muslim religious and community leaders, organizations, businesses and at mosques. (See prior posting.) The NYPD was already operating under the Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities.  In 2013, a motion was also filed in that case claiming that the consent decree had been violated. A press release from the ACLU yesterday reports that after several months of negotiations the parties have agreed on a settlement in both cases.  The settlement involves court adoption of modifications to the Handschu Guidelines to offer greater protections.  As summarized by ABC News:

Under the deal, the Handschu guidelines will specifically ban investigations based on race, religion or ethnicity. Other provisions require the department to use the least intrusive investigative techniques possible and to consider "the potential effect on the political or religious activity of individuals, groups or organizations and the potential effect on persons who, although not a target of the investigation are affected by or subject to the technique."

The settlement also sets time limits for ending investigations that ultimately fail to turn up threats — 18 months for preliminary investigations, three years for full investigations and five years for terror conspiracy cases. The civilian representative, appointed by the mayor, will attend monthly meetings of police officials and NYPD lawyers who review the investigations and will have authority to report any suspected violations of the agreement to City Hall or a federal judge.

The full text of the guideline modifications are set out as Exhibit B to the January 7 Notice of Motion for Approval of Settlement in the Handschu case. A Memorandum of Law in support of the motion was filed by plaintiffs.  A Joint Motion Seeking Entry of Settlement was also filed in the Raza case, as was a Stipulation of Settlement.  Under the settlement, the NYPD will also remove a controversial report titled Radicalization in the West from the NYPD website, and the city will pay $1.671 million for plaintiffs' attorneys' fees.

3rd Circuit: Challenge To NYPD Muslim Surveillance Program May Move Forward

Yesterday the U.S. 3rd Circuit Court of Appeals in Hassan v. City of New York, (3d Cir., Oct. 13, 2015), reversed a New Jersey federal district court (see prior posting) and held that Muslim plaintiffs adequately stated free exercise and equal protection claims challenging the NYPD's Muslim surveillance program. Summarizing its holding, the court in an opinion by Judge Ambro said:

In its narrowest form, this appeal raises two questions: Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in federal court to vindicate their religious-liberty and equal protection rights? If so, ..., have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface however, are questions about equality, religious liberty, the role of courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.

In concluding that plaintiffs have standing, the court said in part:

The City ... argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion.... This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.

Reflecting on history's lessons, the court said:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color...

Judge Roth filed a short concurring opinion on the issue of level of scrutiny that should be applied.  She said in part:

I differ from the majority in its failure to determine whether “intermediate scrutiny” or “strict scrutiny” applies here....

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with“intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

AP reports on the decision.

Woman Sues NYPD Over Required Removal of Hijab For Mug Shot

Courthouse News Service and the New York Daily News report on a suit filed Monday in federal court in the Eastern District of New York against the New York Police Department by a Muslim woman forced to remove her hijab (head scarf)  before having her mug shot taken. Mervat Soliman, a 53-year old Egyptian woman,was arrested after a fight with her neighbor over a parking space. Alleging various disrespectful incidents during questioning, when Soliman objected to removing her hijab, police allegedly said: "This is America, we don't care."