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Media Alerts - George v. Rehiel - Third Circuit
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December 31, 2013
  George v. Rehiel - Third Circuit
Headline: TSA and JTTF agents receive qualified immunity

Area of Law: Constitutional/Procedural

Issues Presented: Whether the TSA search and interrogation by the Joint Terrorism Task Force (JTTF) violated the plaintiff's Fourth Amendment rights and whether detaining him because of the information on his notecards was a violation of his First Amendment rights.

Brief Summary: The plaintiff, George, was questioned by the TSA when it was discovered that he had Arabic-English flash cards. While being briefly questioned by the TSA, the Philadelphia police detained him to be interrogated by a JTTF. The JTTF determined that he was not a threat and was free to go. George filed suit against the TSA and JTTF for violation of his Fourth and First Amendment rights. The Third Circuit determined that the TSA and JTTF agents were entitled to qualified immunity and reversed the district court's denial of their Fed. R. Civ. P. 12(b)(6) motions.

Significance (if any):

Extended Summary: This case concerned the airport search and interrogation of Nicholas George. He was flying to return to college on the west coast. When asked to empty his pockets at airport security, George revealed approximately 80 English to Arabic flash cards. While most cards were ordinary words like "sad" and "friendly," there were also words for "bomb," "terrorist," "explosion" and more. When asked about the cards he stated that he was trying to learn Arabic vocabulary. He was detained by two TSA agents who called for their supervisor. She arrived within 30 minutes. During her questioning, the Philadelphia police handcuffed him and took him to the airport police station where he was detained until the JTTF arrived. The police called them in to determine if George was a threat. After searching his belongings and interrogating him, the JTTF determined that he was not a threat and was free to go.
George filed a complaint alleging a Bivens action against the TSA and JTTF agents. He claimed that the officers subjected him to an unreasonable search and seizure, in violation of his Fourth Amendment rights, and that they detained him in retaliation for his possession of English-Arabic flash cards and the contents of a book he was carrying, in violation of his First Amendment rights. The agents filed a motion to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). Their argument was that the allegations in the complaint did not establish a constitutional violation and even if it did they were entitled to qualified immunity because the constitutional rights were not clearly established at the time of the violations.
The Third Circuit reviewed the denied motion because it essentially was a denial of the defense of qualified immunity. Qualified immunity shields government officials from personal liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights. The Third Circuit held that the plaintiff failed to allege that each agent had violated a statutory or constitutional right that was clearly established at the time of the conduct. Airport screening is not a violation of a person's Fourth Amendment rights because the searches are permissible under the administrative search doctrine and passengers are on notice that they will be searched. The Third Circuit concurred with the Ninth Circuit that this does not change based on the passenger's consent.
The Third Circuit also held that the factual allegations in the complaint do not establish a Fourth Amendment violation by any of the TSA agents. It again agreed with the Ninth Circuit that increased levels of screening procedures do not violate the Fourth Amendment. The initial search was permissible as an administrative search and after finding flashcards with the words bomb, terrorist, explosion, and more on them, the agents had justifiable suspicion to investigate further. The Court did caution that the detention by the TSA agents is at the outer bounds of the Fourth Amendment. The Third Circuit reasoned that there was no authority that the JTTF's response to the local authorities and thirty-minute questioning violates the Fourth Amendment.
George also alleged a First Amendment violation because the TSA agents' actions were in retaliation for him carrying the flashcards and book. The Third Circuit held that the totality of the circumstances showed that the TSA agents had alternative explanations for their conduct, which negates any inference of retaliation. The Court, thus, reversed and remanded with instructions to grant the motion to dismiss.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/114292p.pdf

Panel (if known): McKee, Chief Judge, Jordan, and Vanaskie, Circuit Judges

Argument Date: October 5, 2012

Argument Location:Philadelphia

Date of Issued Opinion: December 24, 2013

Docket Number: No. 11-4292

Decided: Remand

Case Alert Author: Cheri Snook

Counsel: Mark B. Stern, Esq., Douglas N. Letter, Esq., Sharon Swingle, Esq. for appellants; Zachary Katznelson, Esq., Mitra Ebadolahi, Esq., Benjamin E. Wizner, Esq., Lee B. Rowland, Esq., Mary Catherine Roper, Esq., David Rudovsky, Esq., for appellees

Author of Opinion: Chief Judge McKee

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 12/31/2013 01:33 PM     3rd Circuit  

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