Immunity offers a strong shield of protection for law enforcement in various contexts. On Christmas Eve, the 3rd Circuit Court of Appeals overruled a district court’s denial of a motion to dismiss a lawsuit, presenting a gift wrapped in immunity to the defendants (three TSA officers and two FBI agents) stating that they are entitled to qualified immunity after the detention of an airline passenger over Arabic flashcards.
According to his complaint, on August 29, 2009, Nicholas George, a 21-year old citizen of the United States, was scheduled to fly from PHL to California to begin his senior year at Pomona College. But Mr. George did not make his flight, as he was detained, interrogated, handcuffed, and then jailed, in what he claims was a violation of his Fourth and First Amendment rights, because he was carrying a deck of Arabic-English flashcards and a book critical of American interventionism.
At the PHL security checkpoint, a TSA officer inquired about the contents of his carry-on bag which contained two stereo speakers. The speakers were separately screened and George was selected for additional screening, during which time he emptied his pockets including approximately 80 handwritten Arabic-English flashcards of words often used in contemporary Middle Eastern publications and electronic media. He claims that he had them because he was trying to become sufficiently proficient in Arabic to be able to read and understand discussions in contemporary Middle Eastern media.
The flashcards included every day words and phrases such as “day before yesterday,” “fat,” “thin,” “really,” “nice,” “sad,” “cheap,” “summer,” “pink,” and “friendly.” However, they also contained such words as: “bomb,” “terrorist,” “explosion,” “attack,” “battle,” “kill,” “to target,” “to kidnap,” and “to wound.” George had a double major in Physics and Middle Eastern Studies and had traveled to Jordan to study Arabic as part of a study abroad program organized by the Council on International Educational Exchange.
After more screening and questioning, a TSA supervisor arrived to join the two officers already talking to George, which he states included the following exchange:
Jane Doe 3: You know who did 9/11?
George: Osama bin Laden.
Jane Doe 3: Do you know what language he spoke?
Jane Doe 3: Do you see why these cards are suspicious?
The court opinion continues that Jane Doe 3 (TSA supervisor) also commented about one of his books entitled, “Rogue Nation: American Unilateralism and the Failure of Good Intentions.” The book was critical of United States foreign policy. However, in responding to Jane Doe 3’s questioning, George insists that he made no threatening statements, and that he neither said nor did anything that would lead a reasonable government official to regard him as a threat.
Soon thereafter he was cuffed by a Philadelphia Police Officer and detained in a holding cell on-site for over four hours. He was further questioned by two FBI agents from the Joint Terrorism Task Force (“JTTF”). After over five hours of detention and questioning, he was released. He returned the next day to fly without incident.
The complaint is for various forms of relief and against various defendants, both federal and state law enforcement and government officials for violating his Constitutional rights. Not all the claims are at issue in this appellate opinion.
The TSA officers and FBI agents filed motions to dismiss the claims against them arguing that George’s allegations did not establish a constitutional violation, and that even if he had adequately pled such a violation, they were entitled to qualified immunity because the underlying constitutional rights were not so clearly established at the time of his detention to deprive them of that defense.
The district court denied the motion, stating:
If the facts alleged are true, the TSA’s seizure of plaintiff amounted to an investigatory detention, which escalated to an arrest when the [Philadelphia Police Department] handcuffed and locked him in a cell at the direction of the TSA and JTTF. Accordingly, the amended complaint adequately alleges that each individual defendant participated in subjecting plaintiff to an intrusion upon his personal freedom for more than five hours. There were no grounds for reasonable suspicion of any criminality or probable cause. Early on, it was determined that he posed no threat to airline safety.
However, the 3rd Circuit court disagreed, overturning the denial of the motion to dismiss, but not before opining on the officials’ actions (my emphasis):
We caution, however, that the detention at the hands of these TSA Officials is at the outer boundary of the Fourth Amendment. Once TSA Officials were satisfied that George was not armed or carrying explosives, much of the concern that justified his detention dissipated. However, it did not totally vanish or suggest that further inquiry was not warranted. Suspicion remained, and that suspicion was objectively reasonable given the realities and perils of air passenger safety. The TSA Officials still were confronted with an individual who was carrying Arabic-English flashcards bearing such words as: “bomb,” “terrorist,” “to kill,” etc. In a world where air passenger safety must contend with such nuanced threats as attempts to convert underwear into bombs and shoes into incendiary devices, we think that the brief detention that followed the initial administrative search of George was reasonable.
Nevertheless, it is important to note that harboring views that appear to be hostile to the United States government or its foreign policy is most assuredly not, by itself, grounds for detaining someone and investigating them pursuant to the administrative search doctrine or an investigative seizure under Terry. However, it is simply not reasonable to require TSA Officials to turn a blind eye to someone trying to board an airplane carrying Arabic-English flashcards with words such as “bomb,” “to kill,” etc. Rather, basic common sense would allow those Officials to take reasonable and minimally intrusive steps to inquire into the potential passenger’s motivations.
The 3rd Circuit court’s decision may be appealed to the full 3rd Circuit (en banc hearing) or to the U.S. Supreme Court. Furthermore, this ruling does not affect the claims pending against the Philadelphia Police Officers.
While lengthy (40 pages), the opinion (PDF here) is a great read on balancing passengers’ rights with attempted terrorist interdiction and flight safety.