Amadei v. Nielsen

• Decision Date: 13 December 2018
• Docket Number: 17-CV-5967 (NGG) (VMS)
• Citation: 348 F.Supp.3d 145
• Parties: Kelley AMADEI, Carola Cassaro, Laura Cucullu, Corey Fields, Anne Garrett, Amy Lanigan, Matt O'Rourke, Eric Polk, and Karen Polk, Plaintiffs, v. Kirstjen M. NIELSEN, Kevin K. McAleenan, Leon Hayward, Francis J. Russo, Ronald D. Vitiello, Thomas Decker, David Jennings, and, John Does 1 and 2, Defendants.
• Court: U.S. District Court — Eastern District of New York

348 F.Supp.3d 145

Kelley AMADEI, Carola Cassaro, Laura Cucullu, Corey Fields, Anne Garrett, Amy Lanigan, Matt O'Rourke, Eric Polk, and Karen Polk, Plaintiffs,

v.Kirstjen M. NIELSEN, Kevin K. McAleenan, Leon Hayward, Francis J. Russo, Ronald D. Vitiello, Thomas Decker, David Jennings, and, John Does 1 and 2, Defendants.

17-CV-5967 (NGG) (VMS)

United States District Court, E.D. New York.

Signed December 13, 2018

Anna Diakun, Hugh Handeyside, American Civil Liberties Union Foundation, Cecillia Derphine Wang, ACLU Immigrant's Rights Project, Joshua Benjamin Picker, Michelle Young-Eun Choe, Neil Kenneth Roman, Covington & Burling LLP, New York City, NY, Clara J. Shin, Pro Hac Vice, Samantha J. Choe, Covington & Burling LLP, Katrina Eiland, Pro Hac Vice, American Civil Liberties Union Foundation, San Francisco, CA, Lala R. Qadir, Pro Hac Vice, Covington & Burling LLP, Washington, DC, for Plaintiffs.

Dara A. Olds, Matthew J. Modafferi, United States Attorney's Office Eastern District Of New York, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge

Plaintiffs Kelley Amadei, Carola Cassaro, Laura Cucullu, Corey Fields, Anne Garrett, Amy Lanigan, Matt O'Rourke, Eric Polk, and Karen Polk bring this action requesting declaratory and injunctive relief pursuant to § 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), and the Fourth Amendment to the United States Constitution against Defendants Kirstjen M. Nielsen, Kevin K. McAleenan, Leon Hayward, Francis J. Russo, Ronald D. Vitiello, Thomas Decker, David Jennings, and Defendant Doe Officers 1 and 2 (collectively, "Defendants").¹ (Compl. (Dkt. 1).)

Before the court is Defendants' motion to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (See Defs. Mot. to Dismiss ("Defs. Mot.") (Dkt. 32); Defs. Mem. in Supp. of Defs. Mot. ("Defs. Mem.") (Dkt. 32-1).) For the reasons stated below, Defendants' motion is DENIED.

I. BACKGROUND

A. Facts

1. The Search of Passengers on Delta Flight 1583

On February 22, 2017, Plaintiffs were passengers on Delta Airlines Flight 1583, a domestic flight from San Francisco International Airport to New York's John F. Kennedy International Airport ("JFK"). (Compl. ¶ 1.) Most of the Plaintiffs reside in New York. (Id. ¶¶ 11-12, 15, 17-19.) Plaintiffs are a diverse group of individuals, consisting of nine men and women of a variety of ages and races. (Id. ¶¶ 11-19, 60.) Among them are several "consultant[s]," "journalist[s]," a pair of "marketing professional[s]," and a "university professor." (Id. ) Some of the Plaintiffs were traveling with family that day. For instance, Plaintiff Amadei was traveling with her spouse and seven-year-old son, and Plaintiffs Eric and Karen Polk are married. (Id. ¶ 60.) While diverse in background, Plaintiffs share two common experiences: they are "frequent passengers on domestic airline flights," and they all allege that Defendants subjected them to an unlawful search as Plaintiffs disembarked from this particular flight. (Id. ¶¶ 1, 9.)

After Plaintiffs' flight arrived at JFK, but before it parked at the gate, the flight crew announced to the passengers that as they deplaned "they would have to show documents to [CBP] officers meeting the flight." (Id. ¶ 36.) Following this initial announcement, the flight crew made "at least two announcements regarding the requirement that the passengers produce documents." (Id. ¶ 38.) A flight attendant clarified that "documents" meant a "passport or government-issued ID" and further stated that the passengers should be prepared to provide "any additional documentation that the officers requested." (Id. ) A flight attendant also told the passengers that "no passenger[ ] would be allowed to deplane without showing ... identification." (Id. ) At this point, many passengers and even several flight attendants "expressed consternation or dismay" and "wondered aloud about the purpose of the demand for documents, who the officers were, and why all passengers would be required to show such documents after a domestic flight." (Id. ¶¶ 37, 39.)

Following these announcements, a flight attendant opened the aircraft door located between the first class and economy cabins, which was the only exit from the aircraft. (Id. ¶ 40.) Outside the door and positioned in such a way as to block the exit were two "tall and physically imposing" Customs and Border Control ("CBP") agents, Officers John Doe 1 and John Doe 2 (the "Doe Officers"). (Id. ¶¶ 41, 43.) Both of the Doe Officers wore bulletproof vests that read "POLICE / U.S. CUSTOMS AND BORDER PROTECTION" and carried guns that were visible to the passengers onboard. (Id. ¶¶ 41-43.) As passengers approached the door, the Doe Officers permitted each passenger to exit only upon a complete and thorough review of the passenger's identification document. (Id. ¶¶ 45, 47.) Plaintiffs observed that the demeanor of the Doe Officers during this process was "stern and unfriendly." (Id. ¶ 44.)

Plaintiffs were distressed and alarmed by the situation. (Id. ¶¶ 48-50.) Plaintiff Amadei, who was traveling with her spouse and seven-year-old son (who has darker skin than she), had to explain to the Doe Officers that her son is only seven years old and does not carry identification. (Id. ¶ 48.) Plaintiff Amadei's son was noticeably frightened by this experience, at one point asking his mother if the family was in trouble. (Id. ) Upon escorting her family out of the gate area, Plaintiff Amadei asked the Doe Officers why the search was happening and was told, "it's not for you to worry about; we do it from time to time," or words to that effect. (Id. ¶ 50.)

Plaintiffs allege that they did not consent to the identification search. (Id. ¶ 51.) Instead, they understood from the circumstances that the search was mandatory and that they would not be free to exit the aircraft until they submitted their documents to the Doe Officers. (Id. ) Plaintiffs allege that CBP did not have a valid judicial warrant authorizing the alleged search and seizure of Flight 1583 passengers and further allege that CBP did not have any individualized reasonable suspicion that any passenger, "much less all passengers," had engaged in criminal activity. (Id. ¶ 54.)

2. CBP's Explanation for the Search

In response to media reports about the incident, CBP "attempted to justify its actions by asserting that the officers involved were searching for a specific person subject to removal from the United States." (Id. ¶ 56.) CBP also justified the search by saying that searches like the one that occurred on Flight 1583 are "routine," and that the officers acted "pursuant to longstanding CBP policy," citing regulations permitting searches of passengers arriving to the United States from abroad. (Id.) In a public statement released on February 23, 2017, CBP stated:

U.S. Customs and Border Protection (CBP) at John F. Kennedy Airport was contacted by U.S. Immigration and Customs Enforcement (ICE) yesterday, February 22, 2017, to assist in locating an individual possibly aboard Delta flight 1583 from San Francisco International Airport to JFK. This individual was ordered removed by an immigration judge. To assist our law enforcement partners, two CBP officers requested identification from those on the flight in order to help identify the individual. The individual was determined not to be on the flight.

CBP often receives requests from our law enforcement partners to assist in various ways, including identifying a person of interest. CBP will assist when able to.

(Id. ¶ 57.) When asked by the news media whether the search was voluntary, a spokesperson for CBP stated, "[i]t is always best to cooperate with law enforcement, so as to expedite your exiting the airport in a timely manner." (Id. ¶ 61. (alteration in original) ) CBP subsequently followed up with a statement claiming that the Doe Officers had requested "consensual assistance from passengers aboard the flight." (Id. ¶ 62.) Separately, a CBP spokesperson told a reporter that the identification checks are "not a new policy" and that it is "not unusual for us to assist our fellow law-enforcement agencies." (Id. ¶ 63.) Another Department of Homeland Security ("DHS") official told the media that such searches and collaboration between CBP and ICE are "routine." (Id. ¶ 64.)

In an email exchange regarding the search, Defendant Russo asserted that the search was undertaken at the request of ICE "to identify [an] individual" who was "removed by an immigration judge for domestic assault and other crimes." (Emails between Def. Russo and Jordan Wells ("Russo Emails") (Dkt. 1-1) at 1.) In the same exchange, Defendant Russo stated the following: "[w]e do this every day. Someone took a picture and put it on twitter. That's what led to the hysteria." (Id. ) Finally, in response to a media inquiry asking that CBP identify its statutory authority to examine the identification documents of all passengers on a domestic flight, CBP sent a link to a document on the CBP website entitled "CBP Search Authority" which cites 19 C.F.R. § 162.6, a regulation governing CBP's authority to search passengers entering the United States from abroad. (Compl. ¶¶ 67-68.)

On February 27, 2017, Congressman Bennie G. Thompson, the Ranking Member of the U.S. House Committee on Homeland Security, wrote to ICE and CBP, stating that "[i]t is ... troubling that CBP officers called to assist apparently chose to require passengers, including U.S. citizens, to produce identification before disembarking, rather than confirming whether the individual was on the flight either by visual inspection, checking the passenger manifest, or confirming with ICE that the individual was aboard." (Id. ¶ 70. (alteration in original) ) Rep. Thompson asked CBP a variety of questions to which he sought written responses by March 10, 2017. (Id. ) According to Plaintiffs, as of the date of the filing of the complaint, Rep. Thompson has not yet...