CA3: TSA officers get QI for detaining American with Arabic flash cards including “bomb” and “to kill”

TSA officials get qualified immunity for detaining an American at Philadelphia airport after his security screening revealed Arabic language flash cards that included “bomb,” “terrorist,” “explosion,” “an attack,” “battle,” “to kill,” “to target,” “to kidnap,” and “to wound.” They couldn’t be expected to turn a blind eye to that. The security screening also included him being taken away in handcuffs and questioned for four hours. This case, however, is at the outer boundary of the Fourth Amendment and qualified immunity. George v. Rehiel, George v. Rehiel (3d Cir. 2013):

We believe that the conduct of the TSA Officials here was also consistent with Fourth Amendment limitations. It is not disputed that the initial airport screening to which George was subjected by the TSA Officials was a constitutionally permissible administrative search under the Fourth Amendment, even though it was initiated without individualized suspicion and was conducted without a warrant. It was not until after the TSA Officials discovered that he was carrying some handwritten Arabic-English flashcards containing such words as “bomb,” “terrorist,” “explosion,” “an attack,” “battle,” “to kill,” “to target,” “to kidnap,” and “to wound,” that George was taken by John Does 1 and 2 to another screening area where he was eventually questioned by Jane Doe 3. However, at that point, the Officials had a justifiable suspicion that permitted further investigation as long as the brief detention required to conduct that investigation was reasonable. See Terry, 392 U.S. at 21.

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.

Thus, we cannot say that it was unreasonable for John Does 1 and 2 to briefly continue George’s seizure to consult with a supervisor. As noted above, 15 minutes after the supervisor (Jane Doe 3) arrived, and while she was in mid-sentence of a conversation with George, Officer Rehiel of the Philadelphia Police Department arrived, placed George in handcuffs and took him away. At that point, the rather brief detention that arose from the initial administrative search ended. As we explain below, despite George’s failed attempt at establishing an agency relationship, none of the TSA Officials played any further role in the protracted seizure that followed.

Thus, the actions of the TSA Officials corresponded to the level of concern raised by the flashcards.15 As we have already observed, an airport security search may become more invasive when “a lower level of screening disclose[s] a reason to conduct a more probing search.” Hartwell, 463 F.3d at 180. Indeed, we think that these TSA Officials would have been derelict in their duties had they simply ignored the flashcards.