ACLU Brings Important Freedom-to-Travel Lawsuit

The ACLU’s blog post is actually not over the top here: We’re Suing the Government for Violating the Rights of Passengers on Delta Airlines 1583 in Police-State Fashion.

The full complaint in Amedei v. Duke is online.

Some key bits below the fold:

(I reorganized the paragraph order as noted below)

42. The officers positioned themselves partially blocking the exit so that passengers could not bypass the officers and deplane without submitting to the search and seizure.

43. Plaintiffs perceived that Officers DOE 1 and DOE 2 are both physically imposing and tall. The officers wore bulky black bulletproof vests, one of which read “POLICE / U.S. CUSTOMS AND BORDER PROTECTION.” Each carried a gun that was visible in its holster.

44. As the plaintiffs approached the door, Officers DOE 1 and DOE 2 reached out to take each passenger’s identification. Plaintiffs observed that the officers’ manner was stern and unfriendly as they detained the deplaning passengers and examined their identification documents.

45. DOE 1 and DOE 2 reviewed each driver’s license or other identification, in some instances carefully examining both the front and reverse sides of the identification while looking between the photograph on the document and the passenger’s face. DOE 1 and DOE 2 did not merely check the passengers’ names, but rather reviewed other information provided on the identification documents.

46. Despite the focus on the identification documents, DOE 1 and DOE 2 carried no clipboard, photograph, or list of names and did not appear to check the passengers’ identification against any list.

47. DOE 1 and DOE 2 permitted each passenger to proceed only after they indicated that they had completed their review of the passenger’s identification document.

51. Plaintiffs did not consent to any search or seizure as they were attempting to deplane Flight 1583. Instead, they understood from the circumstances, as set forth above, that the stop and search was mandatory and that they were not free to deplane without submitting to the officers. The coercive circumstances included the announcements made by the flight crew at CBP’s direction, the presence of two large armed CBP officers obstructing the only means of egress from the plane, and the words and actions of those officers, as described above.

52. In these circumstances, any reasonable person in Plaintiffs’ position would have understood that he or she was not free to leave the airplane without first submitting to the officers’ demands to take and inspect their identification documents.

53. As a result of the CBP officers’ actions and the Defendants’ policies permitting these actions, each of the Plaintiffs was seized and searched without lawful justification. Each Plaintiff was subjected to a seizure during the CBP officers’ search of their identity document and also during the period in which each Plaintiff was delayed in deplaning because each passenger ahead of him or her had to submit to a similar seizure and search.

54. On information and belief, CBP did not possess a valid judicial warrant authorizing any seizure of Flight 1583 passengers or any search of passenger identification documents; nor did the officers have individualized reasonable suspicion that any passenger, much less all passengers, had engaged in criminal activity.

60. Even assuming that CBP had a specific and detailed description of the individual sought, nothing in CBP’s public statements about its searches and seizures could provide the necessary individualized suspicion to justify an investigatory stop of every adult passenger. DOE 1 and DOE 2 reviewed the identification documents of passengers of different ages, genders, and races, including the Plaintiffs, who are of different ages and races and include both women and men. For instance, they stopped and examined the identification of each Plaintiff, including Plaintiff Fields, an African-American man in his forties, and Plaintiffs Eric and Karen Polk, who are a white man and white woman, both in their sixties.

[skipping back to near the top]

8. In response to press inquiries and an inquiry from the New York Civil Liberties Union, CBP officials stated that their agency’s actions on February 22, 2017, against the passengers of Flight 1583, at the request and direction of ICE, was a “routine” matter and consistent with agency policy. In response to at least one passenger’s direct inquiry during the stop, one of the CBP officers stated that the action was something that happens from “time to time.” Thus, according to CBP’s own repeated statements, under its policies and “routine” practices, other domestic air passengers are subject to search and seizure in the same circumstances that occurred on Delta Airlines Flight 1583 on February 22, 2017.

9. In light of CBP’s statement that its officers’ conduct was pursuant to a policy and regular practice, Plaintiffs, who are frequent passengers on domestic airline flights, are fearful that they will again be subjected to similar treatment and are in fact subject to the risk of illegal search and seizure.

10. Plaintiffs bring this lawsuit to protect their rights under the Fourth Amendment to the U.S. Constitution and the Administrative Procedure Act (APA). They seek declaratory and injunctive relief to prohibit Defendants and their officers and agents within CBP and ICE from searching and seizing passengers on domestic flights within the United States without lawful justification, as they did on February 22, 2017.

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