Employees of the Transportation Security Administration and the FBI have qualified immunity from a suit filed against them by a college student who was detained at the Philadelphia International Airport after Arabic-English flashcards with words such as “kill” and “bomb” were discovered in his luggage, the Third Circuit has ruled.
Plaintiff Nicholas George sued three TSA officials and two FBI officials who were assigned to the FBI Joint Terrorism Task Force for violations of his First and Fourth Amendment rights. The 21-year-old U.S. citizen was scheduled to fly from Philadelphia to California to begin his senior year at Pomona College in 2009. He claims that after he arrived at the airport, he was detained, interrogated, handcuffed and then jailed, allegedly because he was carrying a deck of Arabic-English flashcards and a book critical of American interventionism, according to the opinion in George v. Rehiel.
The federal officials from the TSA and FBI, who were sued along with Philadelphia police officers, filed motions to dismiss based on qualified immunity. A judge in the U.S. District Court for the Eastern District of Pennsylvania denied those motions and the U.S. Court of Appeals for the Third Circuit, in an opinion by Chief Judge Theodore McKee, ruled Tuesday to reverse the lower court.
George argued he was subjected to unreasonable search and seizure in violation of his Fourth Amendment rights and that he was detained in retaliation for his possession of the flashcards and books in violation of his First Amendment rights.
The district court, according to McKee’s opinion, ruled the TSA’s statutory and regulatory authority was exhausted after 10 or 15 minutes of the nearly five-hour detention once George was found not to pose a threat.
McKee said the TSA officials, who were the first to detain George, acted reasonably, but at the “outer boundary” of the Fourth Amendment. McKee said it is not disputed that the initial screening of George’s luggage was lawful. McKee said it was after the flashcards, including words such as “explosion,” “attack,” “terrorist” and “kidnap,” were discovered that George was taken to another screening area. McKee said the suspicion dissipated when it was found George was not armed or carrying explosives, but it didn’t evaporate given “the realities and perils of air passenger safety.”
“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,” McKee said. “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.”
McKee said the TSA officials would have been derelict in their duties if they ignored the flashcards.
The claims against the FBI agents surrounded their being called to the airport by the Philadelphia Police to question George.
“We are unable to find any authority that would support a finding that federal officials’ response to a call for assistance by local police and their subsequent questioning of the subject of that call for 30 minutes constitutes a Fourth Amendment violation,” McKee said.
McKee was joined in his decision by Judges Kent A. Jordan and Thomas I. Vanaskie.
Attorneys from the American Civil Liberties Union in New York and Pennsylvania, along with David Rudovsky of Kairys, Rudovsky, Messing & Feinberg in Philadelphia, represented George. The civil division of the U.S. Department of Justice in Washington, D.C., represented the federal officials.
Ben Wizner, an attorney with the ACLU in New York, said the case will continue against the local police as well as with George’s Federal Tort Claims Act claim against the federal government.
He said Tuesday’s decision was significant, however, and “erroneous.”
“The opinion does not even purport to explain why a college student’s possession of Arabic-English flashcards could give rise to any suspicion, let alone reasonable suspicion,” Wizner said.
He said his client and co-counsel have not yet decided whether they would seek en banc review, certiorari or either.
(Copies of the 40-page opinion in George v. Rehiel, PICS No. 13-3388, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)