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Ethnic Profiling Faulted in 'Arrest' of Passengers at JFK Airport
New York Law Journal
November 25, 2008
In a case of first impression, a Brooklyn federal judge has ruled that the ethnicity of two Arab plane passengers cannot serve as a factor in determining whether the government had probable cause for their "de facto arrests" at John F. Kennedy International Airport.
Tarik Farag and Amro Elmasry initiated the action after armed police officers met them as they de-boarded American Airlines Flight 236 from San Diego to JFK on Aug. 22, 2004, and brought them to a police station, where they were questioned regarding suspected "surveillance activity" onboard the plane.
The two men later filed the present suit, alleging, among other things, violations under the Federal Torts Claim Act.
In a decision Monday, Eastern District Judge Frederic Block allowed the case to go forward.
For the first time since the Sept. 11, 2001, terrorist attacks the court addressed whether Arab ancestry may contribute to probable cause for arrest.
"There is no doubt that the specter of 9/11 looms large over this case," Judge Block wrote in Farag v. United States, 05-CV-3919.
"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.'"
Block denied in part the government's motion for summary judgment, allowing the arrestees' Bivens and Federal Torts Claim Act claims to go forward.
Less than one month before the third anniversary of the Sept. 11, 2001 attacks, Farag and Elmasry boarded a flight together at San Diego International Airport, though they sat a row apart.
Both men were born in Egypt. Farag, 36, is a U.S. citizen and a former New York police officer. At the time of the incident, he worked as a corrections officer for the U.S. Bureau of Prisons. Elmasry, 37, is an Egyptian citizen who served as a regional sales manager for General Electric.
Onboard flight 236, the men raised the suspicions of two nearby counterterrorism agents, FBI special agent William Ryan Plunkett and Detective Thomas P. Smith of the New York City Police Department.
According to the government, the friends' suspicious acts included "timing" various events during the flight and "speaking loudly" in Arabic and English. At one point, Elmasry asked to sit in the empty middle seat between the two "large" law enforcement officers -- purportedly to be closer to his friend, but "unusual" nonetheless, according to the government.
About 90 minutes before landing, Smith and Plunkett decided that Farag and Elmasry should be detained for questioning regarding their possible "surveillance ... or probing operations."
When they exited the plane, Farag and Elmasry were met by at least 10 police officers carrying shotguns, wearing SWAT gear and accompanied by dogs. They were then "handcuffed and taken to a police station, where they were placed in jail cells; they were not released until about four hours later, after having been interrogated at length during their imprisonment regarding suspected terrorist surveillance activity aboard the plane," according to Block's decision.
In the end, the judge noted, the "investigation yielded absolutely no evidence of wrongdoing."
Farag and Elmasry subsequently filed the present suit, alleging unlawful seizure and imprisonment.
PROBABLE CAUSE
The government moved for summary judgment on numerous grounds, including that even if the officers' actions constituted "arrests," they had sufficient probable cause for doing so. The defense cited as potential factor the two mens' ethnicity.
"[A]ll of the persons who participated in the 9/11 terrorist attacks were Middle Eastern males [and] the United States continues to face a very real threat of domestic terrorism from Islamic terrorists," the government argued in its briefs.
The government emphasized the importance of the issue, calling the matter "a case of first impression for the federal courts," as it "presents important questions concerning the scope of legitimate law enforcement activity in response to suspected terrorism-related conduct by passengers on board a domestic commercial aircraft."
In Monday's 61-page decision, Block rejected the government's reasoning and disallowed the use of ethnicity in weighing "probable cause."
The judge discounted the relevance of the ethnicity of the 9/11 attackers in determining the likelihood that other Arabs were terrorists.
"Even granting that all of the participants in the 9/11 attacks were Arabs, and even assuming arguendo that a large proportion of would-be anti-American terrorists are Arabs, the likelihood that any given airline passenger of Arab ethnicity is a terrorist is so negligible that Arab ethnicity has no probative value in a particularized reasonable-suspicion or probable-cause determination," Block wrote.
He also noted that his holding comported with rulings in similar cases nationwide.
"Although the question whether race or ethnicity may be used as one factor among others in evaluating reasonable suspicion or probable cause ... remains unresolved by either the [U.S.] 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 judge concluded.
Anthony C. Ofodile of Ofodile & Associates in Brooklyn represents the plaintiffs. Ofodile could not be reached for comment.
Assistant U.S. Attorney Scott R. Landau represented the government, as well as Smith and Plunkett. A spokesman said the office is reviewing its options.
Farag is no stranger to the courts. He has filed at least three other lawsuits in New York, including a federal action against the Bureau of Prisons alleging he was harassed by other guards after Sept. 11, 2001.
