Suit Over Search on Domestic Delta Flight Advances

A Delta Air Lines jet sits at a gate at Hartsfield-Jackson Atlanta International Airport in Atlanta on Oct. 13, 2016. (AP Photo/David Goldman, File)

BROOKLYN, N.Y. (CN) – Civil rights attorneys applauded a federal judge Friday for refusing to dismiss a lawsuit accusing the U.S. government of subjecting passengers on a domestic Delta Airlines to an illegal search. 

“We don’t live in a show-me-your-papers society,” Hugh Handeyside, senior staff attorney with the ACLU’s National Security Project, said in a statement. “Our clients look forward to getting their day in court and holding the administration accountable when it ignores the Constitution and federal law.”

The American Civil Liberties Union and Covington & Burling filed the lawsuit here last year in Brooklyn, about six months after agents U.S. Customs and Border Protection agents required passengers on a Delta flight from San Francisco to New York’s John F. Kennedy Airport to show identification before they could deplane.  

The nine passengers alleged violations of the Fourth Amendment and the Administrative Procedure Act, seeking an order as well to bar the government from conducting such seizures and searches of domestic passengers.

In a 28-page opinion Thursday, U.S. District Judge Nicholas Garaufis wrote that the passengers had made plausible claims that the agents conducted the search pursuant to Customs and Border Protection policy and routine practice.

“Through their actions, ‘defendants have thus voluntarily relinquished the benefit of postponed judicial review,’” Garaufis wrote.

The passengers claimed in their 21-page complaint that the agents did not seek permission to hold them they were getting off the plane and searched them without a warrant or reasonable suspicion.

The complaint described the officers’ demeanor at the time as “stern and unfriendly.”

“They made it clear, through their own conduct and by directing pre-arrival announcements by the flight crew, that compliance was not voluntary and that passengers would not be permitted to disembark until they showed their identification documents,” they wrote in their October 2017 lawsuit.

According to the Customs and Border Patrol, two federal agents conducted the search of passengers at the request of Immigration and Customs Enforcement, but the person they were seeking for deportation was not on the flight.

In its bid to dismiss meanwhile the government argued that there was insufficient likelihood that such suspicionless searches and seizures would recur.

Judge Garaufis found otherwise and denied the government’s motion, explaining that the “Defendants themselves describ[ed] the challenged search as part of a ‘routine’ and ‘not unusual’ practice.”

“Defendants cannot, now, have their cake and eat it too: They responded to various media inquiries by saying that they were following a policy, and the court will take them at their word,” Garaufis added.

Representatives for the Department of Homeland Security did not respond to requests for comment Friday afternoon.

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