APL-2016-00219
New York County Clerk’s Index Nos. 101559/13 & 101560/13
Court of Appeals
of the
State of New York
In the Matter of the Application of
TALIB W. ABDUR-RASHID and SAMIR HASHMI,
Petitioners-Appellants,
– against –
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents-Respondents.
For a Judgment Pursuant to Article 78 of the
New York Civil Practice Laws and Rules
BRIEF FOR AMICUS CURIAE NEW YORK CITY
COUNCIL’S BLACK, LATINO AND ASIAN CAUCUS
IN SUPPORT OF PETITIONERS-APPELLANTS
KELLEY DRYE & WARREN LLP
Attorneys for Amicus Curiae
101 Park Avenue
New York, New York 10178
Tel.: (212) 808-7800
Fax: (212) 808-7897
Date Completed: December 29, 2017
i
TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2
ARGUMENT ............................................................................................................ 4
I. The NYPD’s Application of Glomar Undermines the Legislative
Intent of New York State’s FOIL Statute ....................................................... 4
A. New York State’s FOIL is Intended to Ensure that the Public
has Open Access to Government Records ........................................... 4
B. Recognition of the Glomar Doctrine has been Explicitly
Rejected by the New York State Legislature ....................................... 6
II. Glomar is a Purely Federal Doctrine that has No Application for State
and City Agencies like the NYPD .................................................................. 7
A. The Glomar Doctrine is Designed to Operate within a Carefully
Regulated Federal System for which NYPD Procedure has No
Analog .................................................................................................. 7
B. The NYPD Cannot Use Glomar to Bypass State Procedure and
Violate General Principles of Federal Preemption ............................12
C. NYPD’s Use of the Glomar Response Raises Equal Protection
Concerns .............................................................................................16
CONCLUSION .......................................................................................................22
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Bandele v City of New York,
No. 07-CV-3339 (S.D.N.Y. Apr 26 2007) ......................................................... 21
Brown v City of Oneonta,
221 F.3d 329 (2d Cir. 2000) ............................................................................... 18
Capital Newspapers Division of Heart Corp. v. Whalen,
69 N.Y.2d 246 (1987) ........................................................................................... 6
Chavez v Illinois State Police,
251 F.3d 612 (7th Cir 2001) ............................................................................... 18
Davis v City of New York,
902 F. Supp.2d 405 (S.D.N.Y. 2013) ................................................................. 20
De Canas v. Bica .......................................................................................... 13, 15, 16
Floyd v City of New York,
959 F. Supp. 2d 540 (S.D.N.Y. 2013) ................................................................ 21
Hassan v City of New York,
804 F.3d 277 (3d Cir. 2015) ............................................................................... 20
Hayden v Paterson,
594 F.3d 150 (2d Cir. 2010) ............................................................................... 19
Ligon v City of New York,
925 F. Supp.2d 478 (S.D.N.Y. 2013) ................................................................. 20
Millions March NYC v. New York City Police Dep’t,
Index No. 100690/17 (Sup. Ct. N.Y. County May 23, 2017) ............................ 17
People v New York City Transit Auth.,
59 N.Y.2d 343 (1983) ......................................................................................... 18
Phillippi v CIA,
546 F.2d 1009 (D.C. Cir. 1976) ........................................................................ 2, 6
iii
Raza v City of New York,
No. 13-cv-3448 (E.D.N.Y. July 18, 2013) ......................................................... 21
Stinson v City of New York,
No. 10-cv-04228 (S.D.N.Y. Aug 31, 2010) ....................................................... 21
U.S. v Carolene Products Co,
304 US 144 (1938) .............................................................................................. 17
Village of Arlington Heights v Metropolitan Hous. Dev. Corp,
429 US 252 (1977) ........................................................................................ 19, 20
Yick Wo v Hopkins,
118 US 356 (1886) ........................................................................................ 17, 19
Statutes
18 C.F.R. § 3a.11 (1982) ...................................................................................... 8n12
50 U.S.C. § 413(a)(1) ............................................................................................... 10
Exec. Order 11652, 40 C.F.R. § 11 (1972) ........................................................ 15n23
Exec. Order No. 13292, 3 C.F.R. § 13292 (2003) ............................................. 14n22
Exec. Order No. 13526, 32 C.F.R. § 2001 (2010) ............................................passim
Executive Order 8381, 5 F.R. § 1147 (1940) ............................................................. 8
Freedom of Information Act, 5 U.S.C. § 552, et. seq. ............................................... 6
N.Y. City Charter § 28(a) .......................................................................................... 1
N.Y. Const. Art. XI ............................................................................................ 17n25
Public Officers Law Art. 6, § 84 ............................................................................ 5n1
INTEREST OF AMICUS CURIAE, BLACK, LATINO AND ASIAN
CAUCUS OF THE NEW YORK CITY COUNCIL
This matter before the Court of Appeals is of critical importance to the 24
duly elected members of the City Council who make up the Black, Latino, and
Asian Caucus (“the Caucus”). The Caucus collectively represents nearly half of
New York City’s nine million residents from all five boroughs. Members of the
Caucus are charged with the “…order, protection and government of persons and
property; for the preservation of the public, health, comfort, peace and prosperity
of the city and its inhabitants.” N.Y. City Charter § 28(a).
Amici submit this brief to help the court consider the concerning
implications of the New York City Police Department’s (“NYPD”) expansive
interpretation of the Freedom of Information Law (“FOIL”) and its disparate
impact on the Muslim and African American community, and other minority
communities of New York State. For the first time since the inception of the FOIL
statute, a municipal law enforcement entity seeks to unilaterally adopt a federal
doctrine known as Glomar and arbitrarily side-step FOIL’s comprehensive
scheme.
The First Department Appellate Division’s ruling vitiates the necessary
checks and balances established in New York’s FOIL statute – ultimately handing
the NYPD boundless legislative authority to reclassify gathered information and
2
arbitrarily deny the right of transparency to minority petitioners. Amici urge this
court to reverse.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case arose out of two distinct 2012 FOIL requests submitted in
response to the Pulitzer Prize-winning findings by the Associated Press (“AP”)
revealing the NYPD’s Muslim surveillance program. The AP report alleged that
organizations with which Imam Talib Abdur-Rashid and Mr. Samir Hashmi (a
Rutgers University student and officer in the Muslim Students Association) were
affiliated had been subject to surveillance. Accordingly, both applicants sought
files concerning any such investigation or surveillance of themselves and of the
organizations to which they belong. The NYPD responded that it could neither
confirm nor deny the existence of any records, relying on a federal doctrine
invoked in regards to national security interests, first recognized in Phillippi v CIA,
546 F.2d 1009 (D.C. Cir. 1976), and known colloquially as a “Glomar Denial”
(“Glomar”). In so doing, the NYPD circumvented New York State’s FOIL policies
and procedures.
To the knowledge of amici, this case represents the first time a local law
enforcement agency in the United States has relied upon the Glomar doctrine in
response to a FOIL request. Establishing this precedent would create on-going
constitutional violations that ignore the legislative intent and statutory safeguards
3
thoughtfully implemented by the elected officials of New York State in the FOIL
statute.
Accordingly, the order of the court below should be reversed for three
reasons:
First, the NYPD’s position conflicts with the statutory framework of New
York’s FOIL. In evoking Glomar, the NYPD undermine traditional statutory
interpretation and the intent of State Legislature by relying upon a federal doctrine
that governs classification of secret records exclusively by federal agencies.
Second, the NYPD’s application of Glomar disregards constitutionally
necessary federal checks and balances, and is preempted by the federal legislature.
In its application of Glomar, the NYPD ignores the importance of a federal
system built on the robust participation of the President and Congress. Presidents
from Eisenhower to Obama have maintained a classification system through the
issuance of consecutive executive orders that places burdens upon the classifying
agency to safeguard and then declassify national security information. Glomar is
merely one element of this carefully regulated, purposively balanced system. The
NYPD has not demonstrated it has any similar system of checks and balances in
operation.
In addition, federal preemption principles preclude the NYPD from applying
Glomar. Since the NYPD does not operate within the framework of the federal
4
government, or under its direction, the NYPD cannot cherry-picking the powers of
the Glomar doctrine without State or City legislative authority or guidance. In
using Glomar, and the “NYPD Secret” classification mechanism, the NYPD is
impermissibly regulating in a field presently and historically occupied by the
federal government.
Third, the NYPD’s use of Glomar raises Equal Protection concerns under
the Fourteenth Amendment. In the more than forty years since the enactment of
New York FOIL statute, the NYPD has only recently applied Glomar and then
only to Muslim and African American applicants concerned about surveillance,
such as in the case of the instant applicants. These three cases reveal a two-tiered
FOIL regime: one tier for members of certain minority groups, and another tier for
the rest of society.
ARGUMENT
I. The NYPD’s Application of Glomar Undermines the Legislative Intent
of New York State’s FOIL Statute
A. New York State’s FOIL is Intended to Ensure that the Public has
Open Access to Government Records
The statutory text, and legislative background, behind New York State’s
FOIL statute clearly indicates the legislature’s intention to ensure that the public
has open access to government records.
The central importance of transparency in regards to state activity is clearly
expressed in the FOIL legislative declaration which states:
5
… a free society is maintained when government is responsive and
responsible to the public, and when the public is aware of
governmental actions. The more open a government is with its
citizenry, the greater the understanding and participation of the public
in government... The people's right to know the process of
governmental decision-making and to review the documents and
statistics leading to determinations is basic to our society. Access to
such information should not be thwarted by shrouding it with the
cloak of secrecy or confidentiality. The legislature therefore declares
that government is the public's business and that the public,
individually and collectively and represented by a free press, should
have access to the records of government in accordance with the
provisions of this article.1
Section 89(3)(a) of the New York FOIL statute codifies the legislature’s
intent to ensure open access to agency documents.2 The statute mandates that
public agencies “shall” either make the records requested available, or deny
disclosure based on a prescribed exemption.
This policy of free information exchange is carefully balanced by the
requirements of national security within the statute, on its face. The statute’s
inclusion of the eleven enumerated exemptions under which a public agency may
deny access to certain records demonstrates the legislature’s recognition that
agencies need to maintain confidentiality in specific instances. Evidently, the state
legislature intentionally adopted a statute which comprehensively balances the civil
liberty and security interests at issue, with preclusive weight. The overarching
1 Public Officers Law Art. 6, § 84.
2 Id. at § 89(3)(a).
6
mandate however, as recognized by this Court, is for the FOIL statute “to be
liberally construed and its exemptions narrowly interpreted so that the public is
granted maximum access to the records of the government.” Capital Newspapers
Division of Heart Corp. v Whalen, 69 N.Y.2d 246, 252 (1987).
The State legislature clearly intended that public agencies either make their
records available or invoke an exemption justifying the decision not to do so.
B. Recognition of the Glomar Doctrine has been Explicitly Rejected
by the New York State Legislature
Although the FOIL is modeled after the Federal Freedom of Information Act
(“FOIA”)3, the lack of an equivalent Glomar doctrine in the state statute highlights
the legislature’s unwillingness to make such a response available to state agencies.
The concept of Glomar denial was first recognized in 1976 by the D.C. circuit in
Phillippi v CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). In 1977, a year later, a
reconstituted FOIL was enacted. The revised state statute presumed greater
accessibility of public records than its 1974 edition and established no analogous
provision to the Glomar doctrine. Subsequent amendments to the FOIL, most
3 5 U.S.C. § 552, et. seq.
7
significantly in 19824, 19895, 20056, 20067, 20088, and in December 2017 have
reinforced the legislature’s objective of ensuring record availability, not limiting it.
The most recent amendments provide a remedy to a requesting party in the form of
attorney’s fees from governmental agencies that unreasonably refuse to release
documents.
To allow the NYPD to invoke a provision that does not exist in the statute,
and to allow the judiciary to give credence to such an argument, undermines the
role of the state legislature and undercuts its constitutional function. These core
issues of access to government, public accountability, and security should not be
decided by a local police official or creative counsel, but instead through the
rigorous consideration of duly elected state officials.
II. Glomar is a Purely Federal Doctrine that has No Application for State
and City Agencies like the NYPD
A. The Glomar Doctrine is Designed to Operate within a Carefully
Regulated Federal System for which NYPD Procedure has No
Analog
4 See, e.g., Michael J. Grygeil, New York Open Government Guide, 6 RCFP i, 1 (2011)
(describing the full history of the New York State FOIL Amendments).
5 Id. (discussing the addition of a prohibition against the willful concealment or destruction of
any record with the intent of preventing public inspection).
6 Id. (discussing the addition of a specific timeframes available to an agency to respond to a
request for records).
7 Id. (discussing the requirement atht all agencies that have “reasonable means available” to
accept record requests in email format and to respond via email when requested to do so).
8 Id. (discussing the update to FOIL intended to reflect advances in information technology and
the costs associated with providing access to information that is maintained
electronically).
8
The NYPD seeks to benefit from a deliberative federal apparatus to classify
sensitive information for which it has no analog and fails to operate the legal
requirements that classification and retention of those records entail.
The federal Glomar regime does not operate in a vacuum. Federal agencies
applying Glomar do so as one element in a broad, highly regulated federal system
designed to keep in balance national security interests with the public’s right to
transparency. This system has a long and storied history of carefully considered,
debated and calibrated regulation by Congress and the Executive.
Our modern-day system of classification was established by President
Franklin Roosevelt through the issuance of Executive Order 8381.9 Since then,
presidents have re-visited this issue, as has Congress. The most recent regulation of
the federal classification system, Executive Order 13526, issued by President
Obama, establishes that a select, qualified number of individuals may classify
information but only on the basis that disclosure could damage national security.10
Executive Order 13526 also creates the National Declassification System.11
There are three levels of classification, namely: “Top Secret”, “Secret”, and
“Confidential”.12 The designation of classification is predicated on the harm
9 Exec. Order No. 8381, 5 F.R. § 1147 (1940).
10 Exec. Order No. 13526, 32 C.F.R. § 2001 (2010).
11 Id.
12 18 C.F.R. § 3a.11 (1982).
9
unauthorized disclosure may reasonably cause to our national security.
Accordingly, the designation, “Top Secret” is applied to information where the
unauthorized disclosure would reasonably create an “exceptionally grave damage”
to national security.13 The next level “Secret” would result in “serious damage” to
national security.14 For the lowest level, “Confidential,” the standard requires that
the information would “damage” the national security of the United States.15
There are a number of considerations the original classifying officer must
take into account that implicate the duration of classification, how the information
is stored, and declassification instruction. Pursuant to Executive Order 13526, the
information must be marked for declassification “as soon as it no longer meets the
standards for classification.”16 However, if the officer is unable to make a
determination, then based upon sensitivity, the default is either 10 years or 25
years.17 The presumption is upon the officer is to classify (if at all) at the lowest
level necessary. Finally, the officer must also provide a “concise reason for
classification that, at a minimum, cites the applicable classification categories.”18
13 Id. at § 3a.11(a)(1).
14 Id. at § 3a.11(a)(2).
15 Id. at § 3a.11(a)(3).
16 32 C.F.R. § 2001 (2010).
17 Id.
18 Id.
10
It is critical to note that for each level, the original classifying officer must
identify or describe the specific danger potentially presented by the information’s
disclosure. The Executive Order specifically provides, “[i]n no case shall
information be classified, continue to be maintained as classified, or fail to be
declassified in order to: 1. conceal violations of law, inefficiency, or
administrative error; (or) 2. prevent embarrassment to a person, organization, or
agency.
Moreover, Executive Order 13526 establishes an internal mechanism for
challenging the classification of information and equally importantly, protocols for
declassification and downgrading.19 Classified information is required to be
declassified “as soon as it no longer meets the standards for classification.”
The U.S. Congress has also asserted itself on these matters repeatedly over
the past eight decades or so, conducting extensive hearings, passing a variety of
statutes, and exercising substantial oversight authority, designed to prevent the
over-classification of information and the resulting impairment of the public’s
access to government records. See, e.g., 50 U.S.C. § 413(a)(1) (directing the
President to keep the congressional intelligence committees fully informed of
national intelligence practices.) This extensive system of Executive Orders,
statutes, and regulations carefully balances the civil liberties enshrined in the U.S.
19 32 C.F.R. § 2001 (2010).
11
Constitution with the inherent need to protect the national security of the United
States. It is within this highly regulated environment that Glomar was conceived
and is best applied.
By contrast, the NYPD’s surveillance procedure is grossly under-regulated
and largely opaque. The NYPD collects vast amounts of surveillance information,
stores and records the personal data of individuals without a corollary statutory
framework or procedure to the federal system, ensuring civil liberties are duly
considered. There is, further, a blatant lack of transparency: the public does not
know the process in place for evaluating the sensitivity of this information, how
long that information is prevented from authorized disclosure, or even how it is
stored.
According to press reports, at some point in 2003, NYPD started labeling its
documents “NYPD Secret”, a label with no legal basis. 20 When press
organizations requested the regulations and rules that NYPD relies upon to classify
these documents, NYPD rejected their FOIL requests.21 Fourteen years later the
NYPD maintains an impenetrable structure that allows it to hold information
indefinitely.
20 Matt Sledge, NYPD ‘Secret’ Classification for Documents ‘Means Diddly’ in Eyes of Legal
Experts, Huffington Post (Sept. 16, 2013).
21 NYPD Rejects Freedom of Information Law Request for their Freedom of Information Law
Handbook, Gothamist, (Mar. 21, 2014).
12
This is in stark contrast with the Executive Order issued by President Obama
which is available online and is incredibly detailed and transparent. The rules for
determining how to classify a document cannot themselves be classified; the
federal system has made these rules public since the inception of the classification
program.
There is no record of rule-making or any other action that would permit
independent entities including the judiciary from evaluating collection and
retention policies. Nor does the NYPD appear to have a process for downgrading
or declassification. This lack of process and procedure leaves the NYPD’s system
rife with the risk of abuse, and may violate constitutional principles.
Unlike the Federal Government, elected representatives in City or State
government have not had an opportunity to opine or debate these issues and create
a balanced framework, akin to the federal system, to apply Glomar. The NYPD
proposes an unfettered application of Glomar without the checks and balances
intended and applied by the Federal Government. The dangers to civil liberties
posed by the NYPD’s unauthorized classification tactics are substantial and
insupportable.
B. The NYPD Cannot Use Glomar to Bypass State Procedure and
Violate General Principles of Federal Preemption
By adopting Glomar as their defense, the NYPD impermissibly encroaches
upon the domain of the federal government. The NYPD is a state institution
13
operating under the supervision and regulation of the state and local government.
To protect national security, local law enforcement entities obtain and share
information through federal partners or in joint operations or task forces. The
NYPD does not have the explicit authority to classify documents. By applying the
exclusively federal doctrine of Glomar, the NYPD is delegating to themselves the
authority of a federal agency without being given license to do so by their state
legislature, and in the absence of all regulatory oversight. Such self-aggrandizing
maneuvering by the NYPD amounts to regulatory preemption.
Although there is a dearth of case law concerning the preemption of local or
state entities on matters of national security, case law as it relates to regulation of
immigration practices is an instructive analog.
In the seminal immigration case De Canas v Bica, the Supreme Court
established a tri-partite framework to ascertain whether there is federal preemption
of a state or local law. De Canas v Bica, 424 U.S. 351 (1976). These tests are: 1.
Constitutional preemption, 2. Field preemption, 3. Conflict preemption. If state or
local regulation runs afoul of any of these three tests, it violates the Supremacy
Clause of the U.S. Constitution.
Accordingly, the first question is whether the New York Police Department
is seeking to regulate the classification system, despite the federal government’s
exclusive control. Informational classification is undeniably the province of the
14
executive. The Supreme Court in Department of Navy v Egan, stated that “[the
President’s] authority to classify and control access to information bearing on
national security…flows primarily from this Constitutional investment of power in
the President and exists quite apart from any explicit congressional grant.”
Department of Navy v Egan, 484 U.S. 518, 527 (1988).
Yet, for years the NYPD has wielded their own extra-constitutional
classification authority and marked documents as “NYPD Secret”. Now, FOIL
requests by the Appellants yield a federal Glomar response even though the
Glomar response is limited by Executive Order 13292 to federal agencies
“whenever the fact of their existence or nonexistence is itself classified under this
order or its predecessors.”22 The overwhelming evidence demonstrates that the
NYPD’s attempt to operate a classification and Glomar defense is federally
preempted and therefore unconstitutional.
Although satisfying any one of the De Canas tests should end the inquiry, it
is useful to examine the remaining two tests for federally preempted regulations.
The second test requires ascertaining whether the federal government sought to
occupy the field entire regulatory field within which the state actor seeks to
regulate itself. The Supreme Court explained this form of preemption as requiring
22 Exec. Order No. 13292, 3 C.F.R. § 13292, (2003).
15
a clear demonstration of the “complete ouster of state power -- including state
power to promulgate laws not in conflict with federal laws…” De Canas at 357.
The classification of information has long been the exclusive province of the
federal government, generally, and in particular the purview of the Executive.
Presidents since Eisenhower, when issuing executive orders regarding
classification, have cited to the statutory and constitutional authority behind their
action.23 Bolstering the executive’s legislative power, in the area of classification
and national security, Congress and the Judiciary have consistently given deference
to the President.24 In addition, Congress has stipulated federal, constitutional due
process concerns governing the access to classified information, which must fit
within the due process protections peculiar to the federal system. The federal
government’s, and the executive’s, constitutional authority cannot be shared, nor
may it be directed -- the NYPD is preempted from regulating in this field.
The last test stipulates that a local regulation is preempted if it “conflicts in
any manner with any federal laws or treaties” or for that matter “stands as an
obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.” De Canas at 363.
23 See, e.g., Exec. Order 11652, 40 C.F.R. § 11 (1972) (Executive order by President Nixon
regarding the Classification of National Security Information and Material detailing the
statutory authority and policy considerations behind classification of information
regarding the U.S.’s nuclear program).
24 Frank J. Smist, Jr., Congress Oversees the United States Intelligence Community, Second
Edition, 1947-1994 (Knoxville: University of Tennessee Press, 1994), pp. 4-5.
16
The first sentence of Executive Order 13526 reads: “[t]his order prescribes a
uniform system for classifying, safeguarding, and declassifying national security
information, including information relating to defense against transnational
terrorism.” Records retained indefinitely by the NYPD, gathered themselves or
obtained in cooperation with federal law enforcement through High Intensity Drug
Trafficking Area program (HIDTA), Regional Information Sharing System centers
(RISS), Joint Terrorism Task Force (JTTF) and other programs, may incorporate
information that would be disclosable under this Order but could not be disclosed
due to the NYPD’s haphazard data storage practices. The inconsistency and lack
of uniformity by the NYPD may frustrate the express purpose of Executive Order
13526.
C. NYPD’s Use of the Glomar Response Raises Equal Protection
Concerns.
To the knowledge of amici, NYPD has invoked the Glomar doctrine three
times. It was raised first in the two cases consolidated in this appeal, then soon
after in a case involving surveillance of Black Lives Matter protesters. Petition,
Millions March NYC v New York City Police Dep’t, Index No. 100690/17 (Sup. Ct.
N.Y. County May 23, 2017). NYPD has only used this doctrine in response to
attempts by community members to obtain information about police surveillance
of communities of color. Because Glomar has, to date, only been invoked in
response to requests from requestors who are members of “discrete and insular
17
minorities”—i.e. African-Americans and/or Muslims – and because the documents
that are requested relate to whether NYPD has engaged in tactics that violated the
constitutional rights of members of “discrete and insular minorities”, amici urge
this Court to consider whether the invocation of the Glomar doctrine violates the
Equal Protection clause of the U.S. Constitution and the New York Constitution.
U.S. v Carolene Products Co, 304 US 144, 152 (1938).
Facially neutral policies that are applied in an intentionally discriminatory
manner violate the Equal Protection Clause of the U.S. Constitution and its
corollary in the New York Constitution25. See Yick Wo v Hopkins, 118 US 356
(1886) (holding that, where Chinese-owned businesses were denied permits to
operate laundries in wooden structures when laundries with non-Chinese-
ownership were not denied such permits, the authorities violated the Equal
Protection Clause of the Fourteenth Amendment of the U.S. Constitution)
(“whatever may have been the intent of the ordinances as adopted, they are applied
by the public authorities charged with their administration, and thus representing
the State itself, with a mind so unequal and oppressive as to amount to a practical
denial by the State of that equal protection of the laws which is secured to the
petitioners, as to all other persons, by the broad and benign provisions of the
Fourteenth Amendment to the Constitution of the United States”); See also People
25 N.Y. Const. Art. XI
18
v. New York City Transit Auth., 59 N.Y.2d 343 (1983) (finding that a cause of
action existed where the state’s facially-neutral employment policy gave weight to
seniority and so disparately impacted the promotional prospects of female transit
authority workers as applied.).
A plaintiff alleging that a facially neutral policy or statute violates the Equal
Protection Clause generally must “allege the existence of a similarly situated group
that was treated differently” Brown v City of Oneonta, 221 F.3d 329, 337 (2d Cir.
2000) (“For example, if a plaintiff seeks to prove selective prosecution on the basis
of his race, he ‘must show that similarly situated individuals of a different race
were not prosecuted.’”). Plaintiffs also must show discriminatory intent. Chavez v
Illinois State Police, 251 F.3d 612, 635-36 (7th Cir 2001) (“To show a violation of
the Equal Protection Clause, plaintiffs must prove that the defendants' actions had a
discriminatory effect and were motivated by a discriminatory purpose.”). Intent
may be established by a clear pattern – such as that in Yick Wo – or by looking at
the “historical background of the [allegedly racially discriminatory] decision.”
Village of Arlington Heights v Metropolitan Hous. Dev. Corp, 429 US 252, 267
(1977) (“Departures from the normal procedural sequence also might afford
evidence that improper purposes are playing a role. Substantive departures too may
be relevant, particularly if the factors usually considered important by the decision-
maker strongly favor a decision contrary to the one reached.”); See also Hayden v
19
Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (“while a plaintiff must prove that
there was a discriminatory purpose behind the course of action, a plaintiff need not
prove that the ‘challenged action rested solely on racially discriminatory
purposes’” (quoting Village of Arlington Heights, 429 US at 264–65)] ).
Here, the Petitioners have not pleaded a violation of the Equal Protection
Clause and therefore have not alleged facts that would enable the Court to fully
analyze whether a similarly situated group has been treated differently and whether
discriminatory intent exists. However, the fact that the Glomar doctrine has only
been invoked with respect to requests by people of color for information about
surveillance of communities of color is highly suggestive of both discriminatory
effect and discriminatory purpose. See Village of Arlington Heights, 429 US at
267. In particular, the fact that NYPD has departed from previous procedures and
created a new doctrine and procedure to respond to requests from Muslim-
Americans and African-Americans about surveillance of political and religious
activity is evidence of discriminatory intent. Id.
It also bears noting that the petitioners in this case were seeking information
about a program that is the subject of ongoing litigation, in which the Third Circuit
Court of Appeals declined to dismiss claims brought under the U.S. Constitution’s
Equal Protection Clause. Hassan v City of New York, 804 F.3d 277 (3d Cir. 2015)
(denying motion to dismiss plaintiffs’ claim that NYPD program violated the
20
Equal Protection Clause when the program involved infiltrating and monitoring
Muslim entities and individuals in New Jersey solely because they were Muslim or
believed to be Muslim rather than based on evidence of wrongdoing). It is thus
quite plausible that NYPD’s invocation of the Glomar doctrine part of a broader
program surveilling communities of color.
Nor is this the first time that NYPD’s tactics have disproportionately
impacted communities of color. See, e.g. Davis v City of New York, 902 F. Supp.2d
405 (S.D.N.Y. 2013) (denying City’s motion to dismiss plaintiffs’ Equal Protection
claims where NYPD employed stop practices and trespass enforcement practices in
NYCHA buildings, dedicated greater law enforcement attention to residences with
greater concentrations of African Americans, and allowed officers to stop NYCHA
residents and guests without reasonable suspicion and to arrest NYCHA residents
and lawful guests for criminal trespass without probable cause); Ligon v City of
New York, 925 F. Supp.2d 478 (S.D.N.Y. 2013) (issuing a preliminary injunction
where the NYPD Trespass Affidavit Program allowed officers to make stops
outside private residential TAP-designated buildings in the Bronx without
reasonable suspicion and where the operative complaint alleged that the residents
of buildings where TAP was in effect were disproportionately black and Latino);
Complaint, Raza v City of New York, No. 13-cv-3448 (E.D.N.Y. July 18, 2013)
(alleging that NYPD conducted surveillance and investigation against Muslim
21
individuals, organizations, and mosques without suspicion pursuant to its Muslim
surveillance program); Floyd v City of New York, 959 F. Supp. 2d 540 (S.D.N.Y.
2013) (finding that NYPD stop-and-frisk policy violated plaintiffs’ Fourteenth
Amendment Equal Protection rights); Amended Class Action Complaint, Stinson v
City of New York, No. 10-cv-04228 (S.D.N.Y. Aug 31, 2010) (alleging that NYPD
officers had an unlawful quota for arrests and summons and that that policy had a
disproportionate effect in neighborhoods with a high proportion of minority
residents); Complaint, Bandele v City of New York, No. 07-CV-3339 (S.D.N.Y.
Apr 26 2007) (complaint alleged NYPD officers arrested three members of the
Malcolm X Grassroots Movement’s CopWatch program and falsely charged them
with assault, resisting arrest, and obstruction of governmental administration).
Amici urge this Court to take notice of the fact that NYPD has thus far only
invoked the Glomar doctrine in response to requests from racial and religious
minorities. Amici fear that, should NYPD be given the authority to invoke the
Glomar doctrine, the effects of this would be disproportionate use of the doctrine
in response to requests from racial and religious minorities. Furthermore, amici
are concerned that the doctrine will be invoked – as it appears to have been in this
case – to shield from public view NYPD programs that violate the Equal Protection
Clauses of the New York and U.S. Constitutions.
CONCLUSION
For these reasons, the decision of the court below should be reversed.
M.1
Michael Yim
Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Telephone: (212) 808-7800
Facsimile: (212) 808-7897
myim@kelleydrye.com
Counsel for New York City Council's
Black, Latino and Asian Caucus
22
NEW YORK STATE COURT OF APPEALS
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to 22 NYCRR PART 500.1(j) that the foregoing brief was
prepared on a computer using Microsoft Word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
Word Count. The total number of words in this brief, inclusive of point headings
and footnotes and exclusive of pages containing the table of contents, table of
citations, proof of service, certificate of compliance, corporate disclosure
statement, questions presented, statement of related cases, or any authorized
addendum containing statutes, rules, regulations, etc., is 4,714 words.
Michael Yim
Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Telephone: (212) 808-7800
Facsimile: (212) 808-7897
myim@kelleydrye.com
Counsel for New York City Council’s
Black, Latino and Asian Caucus