{"id":2710,"date":"2009-02-11T09:41:05","date_gmt":"2008-11-27T08:06:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-11-27T08:09:33","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2710","title":{"rendered":"EDNY: Arabic men arrested off a JFK flight on suspicion of terrorism, held four hours, and released survive summary judgment on Bivens<\/em> claim"},"content":{"rendered":"

Summary judgment denied the government on a Bivens claim by Arab men detained for four hours after landing at JFK for alleged “terrorist surveillance” from ambiguous activity on an international flight. The government even argued that their race justified their detention. Farag v. United States<\/a>, 587 F. Supp. 2d 436 (E.D. N.Y. November 24, 2008) (link via NYLJ):<\/p>\n

Although the question whether race or ethnicity may be used as one factor among others in evaluating reasonable suspicion or probable cause (outside of the identification scenario, and absent any compelling statistical evidence) remains unresolved by either the Supreme Court or the Second Circuit, there is a significant body of pre-9\/11 precedent concluding that race is not indicative of criminal propensity. The Ninth Circuit’s decision in Montero-Camargo is one example; although the en banc court held that there were sufficient non-ethnic factors to constitute reasonable suspicion to stop the defendants, the majority rejected the district court’s and the panel majority’s “reli[ance] in part upon the Hispanic appearance of the three defendants[,]” 208 F.3d at 1131, concluding that “Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required ….” Id. at 1135. Similarly, in United States v. Clay, the Eighth Circuit held that the defendant’s race, considered together with several other factors, did not create reasonable suspicion for a Terry stop, stating that “[a]lthough color of skin is an identifying factor, this court has consistently rejected the use of race in combination with other factors to justify investigative searches and seizures.” 640 F.2d 157, 159 (8th Cir. 1981) (citations omitted) (emphasis added).<\/p>\n

There is no doubt that the specter of 9\/11 looms large over this case. Although this is the first post- 9\/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the Court cannot subscribe to the notion that in the wake of 9\/11 this may now be permissible. As the Second Circuit recently admonished, “the strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” Iqbal v. Hasty, 490 F.3d 143, 159 (2d Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, U.S. , 128 S.Ct. 2931, 171 L. Ed. 2d 863 (2008).<\/p>\n

History teaches much the same lesson: The Supreme Court’s approval of the internment of large numbers of Japanese-Americans during World War II, see Korematsu v. United States<\/a>, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1943), is now widely regarded as a black mark on our constitutional jurisprudence. The daughter of two such internees — Kiyo Matsumoto — recently became the third Asian-American woman to be elevated to the federal bench. At her induction ceremony, Judge Matsumoto recalled the closing words of Justice Murphy’s dissent in Korematsu; they are equally apt here:<\/p>\n

All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.<\/p><\/blockquote>\n

323 U.S. at 242.<\/p>\n

The Court “fully recognize[s] the gravity of the situation that confront[s] investigative officials of the United States as a consequence of the 9\/11 attack[,]” Iqbal, 490 F.3d at 159 (2d Cir. 2007), and that the mindset of airline travelers has understandably been altered by 9\/11. This justifiable apprehension must be assuaged by ensuring that security is strictly enforced, and by the passage of time without, hopefully, other episodic affronts to our country; but fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.<\/p><\/blockquote>\n

Qualified immunity was also denied, but the court did not want to deter officers in the future:<\/p>\n

For example, if the jury were to find that the agents knew or should have known that Elmasry was not suspiciously “timing” events; that the agents knew or should have known why plaintiffs changed their seats; and that the agents heard and understood enough of the English portions of plaintiffs’ mixed Arabic-English conversations to place their actions in context, the Court could not grant the agents qualified immunity. Under such circumstances, there would be no factual justification for the agents’ actions other than plaintiffs’ ethnicity, and no reasonable officer would have thought it appropriate to arrest or investigatively detain an Arab simply for speaking Arabic on an airplane–whether before or after 9\/11. Thus, because of the factual nature of the qualified immunity issue, summary judgment cannot be granted.<\/p>\n

On a concluding note, nothing that the Court has written should be construed as suggesting that law enforcement officials should be anything but vigilant in policing suspicious conduct on domestic airline flights. Moreover, “individuals consent to substantial intrusions on their Fourth Amendment interests at airports and onboard commercial aircraft.” Shqeirat v. U.S. Airways Group, Inc., 515 F. Supp. 2d 984, 993 (D. Minn. 2007) (citing Cassidy v. Chertoff, 471 F.3d 67, 76 (2d Cir. 2006) (“[S]ociety has long accepted a heightened level of security and privacy intrusion with regard to air travel.”)).<\/p>\n

Certainly, the agents could have engaged the plaintiffs in consensual conversation. See Royer, 460 U.S. at 497-98 (“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual . . . in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”); United States v. Lee, 916 F.2d 814, 816-19 (2d Cir. 1990) (holding that, where officers approached a suspicious person in an airport terminal “and, with credentials displayed, asked if they could speak with him”; the individual consented; the officers told him “that he was suspected of carrying contraband”; and he consequently allowed them to search his person; the encounter did not implicate the Fourth Amendment). For aught that appears on the present record, the plaintiffs were more than willing to answer any questions put to them and give the agents whatever information they may have required. And if the plaintiffs had fully cooperated by telling the agents where they worked and, in Farag’s case, giving his federal employee tax identification number, the agents should have been able to quickly confirm whether plaintiffs were being truthful. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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