A Broken Playbook: The NYPD Targeted Muslims in Over 95-Percent of Investigations That Broke Surveillance Rules

The NYPD’s Intelligence Bureau consistently broke court-imposed rules governing investigations involving political activity, according to a recent report by the NYPD Inspector General. But the most troubling conclusion appears in a footnote on the first page: over 95-percent of these investigations targeted Muslims or individuals associated with Islam.

On its face, the report is about NYPD non-compliance with rules governing how officers must conduct certain sensitive investigations. Sampling cases closed between 2010 and 2015, the police watchdog found that the department continued more than half of its investigations beyond authorized limits, routinely used informants and undercover officers after authorizations expired, and justified their use with boilerplate language in records that were incomplete and riddled with errors. Left largely unsaid: American Muslims bore the brunt of these violations by a staggering ratio.

In a dizzying display of spin, the NYPD portrayed the report as a vindication of its past practices, appearing shocked – shocked! – to discover it’s been spying on Muslims all this time. But a look back at the origin of the report (and the office that produced it) shows that a motivating concern was the blanket surveillance of Muslim communities. A rulebook with alarmingly low standards only enabled this discriminatory pattern of surveillance, and it is long overdue for an overhaul. 

The Inspector General’s findings are troubling, but they shouldn’t be surprising. Back in 2011, the Associated Press published a Pulitzer Prize-winning investigation that described how the NYPD put entire communities under surveillance, sending secret agents into mosques, cafes, stores, schools, and student associations in order to map communities and eavesdrop on conversations. The revelations led to three federal lawsuits, two of which the NYPD has agreed to settle. In fact, the NYPD’s blanket surveillance of Muslim communities was a driving force behind the City Council’s decision to create an Inspector General for the NYPD in 2013. The office came online in 2015 and quickly committed to investigating the surveillance of political and religious groups.

But in its formal response to the report, the NYPD seemed to ignore this history, highlighting instead one finding that there were “sufficiently articulated facts to satisfy the threshold required” for opening all of the investigations under review. This, despite the fact that the Inspector General also cautioned that the threshold is “relatively low,” requiring only an allegation or information “indicating the possibility of unlawful activity.” Regrettably, the report did not comment on the wisdom of such a low bar for investigations in the same way that other reports have critiqued police policies (perhaps because the existing rules are court-imposed, but it’s unclear why that would matter). Nonetheless, the underlying concern is a familiar one: the more lenient the standard, the greater chance of abuse. A low threshold invites officers to rely on hunches and subjective judgments, which are inevitably informed by personal biases, even if unconsciously. Such a dynamic opens the door to the kind of racial and religious profiling that prompted the Inspector General to investigate in the first place.

In this light, it should be cause for concern that 95% of the investigations reviewed by the Inspector General involved Muslims. The NYPD responded that it “does not characterize individuals by religion in its investigations or documents” and that the finding “seems to reach for something with uncertain purpose.” If the NYPD is truly uncertain, then the Department would do well to remember how a federal court found its “stop-and-frisk” policy unconstitutional based on evidence that officers targeted Black and Latino New Yorkers 85% of the time.

Indeed, two of the three Muslim surveillance lawsuits still pending against the NYPD allege a pattern of unconstitutional discrimination, similar to the stop-and-frisk case. And while the Inspector General found no evidence of “improper motives,” the law does not require improper motives to find intentional discrimination. As the Third Circuit recently said, “even if NYPD officers were subjectively motivated by a legitimate law-enforcement purpose (no matter how sincere), they’ve intentionally discriminated if they wouldn’t have surveilled Plaintiffs had they not been Muslim.” Thus, the NYPD may be correct that the majority of terrorist plots targeting New York have involved al-Qaida, the Taliban, or the Islamic State, but that statistic does not excuse targeting religious communities for surveillance any more than crime data can justify a discriminatory stop-and-frisk policy.

Unfortunately, the Inspector General did not connect these dots for the NYPD or address any high-profile incidents of Muslim surveillance, including reports that the NYPD designated entire mosques as terrorist organizations, attempted to place an informant on the board of a prominent Arab American social services organization, and used an undercover officer to infiltrate a Muslim student group at Brooklyn College long after an authorized investigation had ended. Neither did the Inspector General examine other controversial aspects of the NYPD’s intelligence operations, including the first level of investigation (“Checking of Leads”), reportedly used to justify monitoring Muslims who Americanize their names. If the NYPD opened all of these investigations ‘by the book,’ then there is something wrong with the book.

Future reports may examine these issues and, hopefully, express an opinion on whether the rules themselves need an upgrade in order to protect the rights of New Yorkers. Standards so low that everything meets them are no standards at all. In the meantime, the Inspector General should be commended for producing a first-of-its-kind report that exposes significant flaws in the NYPD’s intelligence operations and makes important recommendations that the police should take seriously. 

About the Author(s)

Michael Price

Counsel for the Brennan Center’s Liberty and National Security Program Follow him on Twitter (@michaelwprice).