Feds Cleared on Search of Flashcard-Carrying Man
PHILADELPHIA (CN) - A man whose flashcards got him detained at the airport cannot sue federal officials because threatening words on some of those cards justified the search, the 3rd Circuit ruled.
Nicholas George said he had gone to Philadelphia International Airport on Aug. 29, 2009, for a flight to California where he would begin his senior year at Pomona College.
The 22-year-old had been majoring in Middle Eastern Studies and said he was carrying Arabic flashcards as well as a book titled "Rogue Nation: American Unilateralism and the Failure of Good Intentions," by Clyde Prestowicz.
While George went through security, the Transportation Security Administration detained him for 30 minutes and then had him "abusively interrogated for an additional 15 minutes by a TSA supervisor," according to the complaint filed in 2010.
George said he was then brought in handcuffs, without explanation, to the airport police station where he was jailed for approximately four hours.
Represented by the American Civil Liberties Union, George sought punitive damages for constitutional violations, claiming that the government had retaliated against him for possessing the book and the flashcards.
The U.S. government countered, however, that the flashcards George was carrying had various neutral Arabic phrases mixed with threatening ones, including "to kill," "bomb" and "terrorist." Claiming that probable cause justified their search and detainment of George, the U.S. sought dismissal of the case.
A federal judge nevertheless advanced the case based his finding that allegations are "plausible on [their] face."
Finding otherwise on Christmas Eve, the 3rd Circuit said that the federal defendants are entitled to qualified immunity.
"Basic common sense would allow those officials to take reasonable and minimally intrusive steps to inquire into the potential passenger's motivations," Judge Theodore McKee wrote for a three-judge panel.
Though the TSA officials initiated George's initial airport screening without individualized suspicion and without a warrant, "it is not disputed" that George was subjected to "a constitutionally permissible administrative search under the Fourth Amendment," according to the ruling.
"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 ... to another screening area," McKee wrote. "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." McKee did note that "the detention at the hands of these TSA Officials is at the outer boundary of the Fourth Amendment" and that "once TSA Officials were satisfied that George was not armed or carrying explosives, much of the concern that justified his detention dissipated."
Nevertheless, "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," the 40-page ruling states.
George's claims under the First Amendment are also insufficient as "the fact that George clearly had a right to have these flash cards does not mean that TSA Officials had to ignore their content or refrain from investigating him further because of the words they contained," McKee wrote. "The totality of circumstances here could cause a reasonable person to believe that the items George was carrying raised the possibility that he might pose a threat to airline security. That suspicion was the reason for their increased level of scrutiny during the airport screening."
McKee continued to write that" because we have found that the individual Federal Without support for a Fourth Amendment claim, the panel said it was "hard-pressed to find that it could result in a First Amendment retaliation claim on this record."
George's claims against the United States and two Philadelphia police officers were not at issue in the appeal.
ACLU attorney Ben Wizner told Reuters that his client may appeal and will pursue his case against the other defendants.
"It is hard to determine, from reading this opinion, what materials might subject travelers to detention against their will," Wizner said. "The court does not explain how possession of Arabic-English flashcards by a college student gives rise to any suspicion, much less reasonable suspicion."