Farag v. U.S.

• Decision Date: 24 November 2008
• Docket Number: No. 05-CV-3919(FB)(SMG).,05-CV-3919(FB)(SMG).
• Parties: Tarik FARAG and Amro Elmasry, Plaintiffs, v. The UNITED STATES, William Plunkett, and Thomas Smith, Defendants.
• Court: U.S. District Court — Eastern District of New York

587 F.Supp.2d 436

Tarik FARAG and Amro Elmasry, Plaintiffs, v. The UNITED STATES, William Plunkett, and Thomas Smith, Defendants.

No. 05-CV-3919(FB)(SMG).

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

November 24, 2008.

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Anthony C. Ofodile, Esq., Ofodile & Associates, P.C., Brooklyn, NY, for Plaintiffs.

Benton J. Campbell, Esq., United States Attorney, by Scott R. Landau, Esq., Assistant United States Attorney, Brooklyn, NY, for Defendants.

MEMORANDUM AND ORDER

BLOCK, Senior District Judge:

                TABLE OF CONTENTS
                STATEMENT OF THE CASE ........................................................ 443
                   Facts ..................................................................... 443
                          I. Events at San Diego International Airport ....................... 443
                         II. Events During the Flight ........................................ 444
                        III. Events at JFK ................................................... 446
                         IV. Events at the Port Authority Police Station ..................... 447
                  The Commencement of the Litigation ......................................... 448
                  The Government's Justification for Its Conduct ............................. 448
                DISCUSSION ................................................................... 449
                   Summary Judgment Standards ................................................ 449
                   Bivens and FTCA Claims .................................................... 450
                       I. Analytical Framework ............................................... 450
                          A. Bivens Claims ................................................... 450
                          B. FTCA Claims ..................................................... 451
                          C. Qualified Immunity .............................................. 452
                      II. Analysis ........................................................... 452
                          A. Were Plaintiffs Arrested? ....................................... 452
                             1. Show of Force and Restraint of Movement at the Terminal ...... 453
                             2. The Jailings and Custodial Interrogations .................... 454
                             3. Duration of the Detentions and Interrogations ................ 455
                

                          B. Was There Probable Cause for the Arrests? ....................... 457
                             1. Was There Probable Cause Based on Non-Ethnic Factors
                                 Alone? ...................................................... 458
                             2. Would Consideration of Plaintiffs' Ethnicity Warrant a
                                 Finding of Probable Cause? .................................. 460
                             3. Can Plaintiffs' Arab Ethnicity Serve as a Probable Cause
                                 Factor? ..................................................... 460
                          C. Are Smith and Plunkett Entitled to Qualified Immunity? .......... 468
                   Remaining Claims .......................................................... 470
                CONCLUSION ................................................................... 471
                

On August 22, 2004, weeks away from the third anniversary of 9/11, plaintiffs Tarik Farag ("Farag") and Amro Elmasry ("Elmasry"), both Arabs, flew from San Diego to New York's John F. Kennedy Airport ("JFK") on American Airlines Flight 236. They claim that when they deplaned they were met by at least ten armed police officers in SWAT gear with shotguns and police dogs, ordered to raise their hands, frisked, handcuffed and taken to a police station, where they were placed in jail cells; they were not released until about four hours later, after having been interrogated at length during their imprisonment regarding suspected terrorist surveillance activity aboard the plane. The investigation yielded absolutely no evidence of wrongdoing.

Alleging that they were unlawfully seized and imprisoned, Farag and Elmasry have each brought an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendants FBI Special Agent William Ryan Plunkett ("Plunkett") and New York City Police Department Detective Thomas P. Smith ("Smith"),¹ two counterterrorism agents responsible for plaintiffs' seizures, detentions and interrogations. Plaintiffs also sue the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., for Plunkett's and Smith's allegedly tortious conduct.² The defendants (collectively, the "Government") now move for summary judgment on the merits; alternatively, Plunkett and Smith seek summary judgment as to plaintiffs' Bivens claims on the ground of qualified immunity. Plaintiffs have not cross-moved.

The Government considers this "a case of first impression for the federal courts" because it "presents important questions concerning the scope of legitimate law enforcement activity in response to suspected terrorism-related conduct by passengers on board a domestic commercial aircraft." Def'ts' Mem. of Law in Support of Mot. for Summ. J. (hereinafter "Gov't Br.") at 1. It contends (1) that the agents merely conducted a valid Terry stop when they seized, detained and questioned plaintiffs for approximately four hours, or (2) alternatively, if the Court determines that the agents arrested plaintiffs, that there was probable cause to do so. In either case, the Government "take[s] the position that the Arabic ethnicity of the plaintiffs is and was a relevant factor in the Fourth Amendment analysis." Tr. of Oral Argument, July 18, 2008, at 13.

The Court rejects the Government's contention that plaintiffs' ethnicity can be a factor in determining the validity of plaintiffs' seizures and detentions, and holds that plaintiffs' Bivens and FTCA claims survive summary judgment. Further, with respect to the Bivens claims, the Court holds that summary judgment cannot be granted on Smith and Plunkett's qualified-immunity defense, since there are factual issues to be resolved at a trial.

STATEMENT OF THE CASE

Facts

The facts are taken primarily from the Government's Rule 56.1 Statement of Undisputed Material Facts (hereinafter "Gov't Stat."), which consists largely of plaintiffs' own deposition testimony describing the relevant events. The Government admits the contents of its Rule 56.1 Statement to be true only for the limited purpose of its motion for summary judgment, and has "reserve[d] the right to dispute the facts" in the event of a trial. Gov't Stat. at 1, n. 1; see Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 298 n. 4 (2d Cir.1996) ("[Defendant] concedes negligence for purposes of its summary judgment motion, while preserving its right to challenge negligence should the case go to trial.").³ In footnotes, the Court indicates where plaintiffs, in their responsive Rule 56.1 Statement (hereinafter "Pl. Stat."), take exception to the facts as characterized in the Government's Rule 56.1 Statement.

The court also takes information from (1) Smith and Plunkett's contemporaneous incident report; (2) Plunkett's contemporaneous summary of his interrogation of Elmasry; (3) Smith's contemporaneous summary of his interrogation of Farag; and (4) the declaration of Dennis Walsh, the pilot of Flight 236 — all of which the Government submitted in support of its summary-judgment motion.

I. Events at San Diego International Airport

Farag and Elmasry, long-time friends, were flying from San Diego International Airport to JFK after vacationing in California. Both were born in Egypt, but Farag, 36, had moved to the United States in 1971 at age five and later became an American citizen. He was a retired New York City police officer, and was then employed by the United States Bureau of Prisons as a corrections officer. Elmasry, 37, was an Egyptian citizen; he was employed in Egypt by General Electric as an area sales manager for its Africa-East Mediterranean region, and had a valid United States visa.

After plaintiffs boarded the plane, they took neighboring but non-adjacent seats: Farag was seated in 17E, a middle seat on the right side of the aisle, and Elmasry was seated in 18A, a window seat on the left side, one row behind Farag. Smith and Plunkett were seated nearby: Smith was in seat 17A, a window seat immediately in front of Elmasry and in the same row as Farag, but on the other side of the aisle, and Plunkett was one seat away in 17C, the aisle seat. The seat between Smith and Plunkett, 17B, was vacant. Plaintiffs did not know that Smith and Plunkett were counterterrorism agents.

Plaintiffs placed their carry-on luggage in the overhead compartments above their respective seats, and, once seated, "talked to each other, over the heads of the other passengers, in a mixture of Arabic and English." Gov't Stat. ¶ 33.⁴ While the plane was at the gate, Elmasry entered the aisle and asked Plunkett if he would be willing to shift over one seat to 17B, the center seat, and let Elmasry sit in 17C, the aisle seat.⁵ Plunkett declined.

After Elmasry left his seat to speak to Plunkett, a female passenger seated next to Elmasry in 18B had stretched her legs across Elmasry's seat. After Plunkett refused Elmasry's request, Elmasry, rather than returning to his seat, asked Smith and Plunkett if he could sit between them, in the vacant seat 17B. Smith and Plunkett agreed. According to the agents' contemporaneous incident report, Plunkett thought it "unusual that anyone would move from an exit row window seat to an exit row middle seat . . . in between two large men," Incident Report, Ex. C to Perry Decl., at 2, but the report also acknowledges that Elmasry had explained that he wanted to change seats "so he could be `close to [his] friend[.]'" Id. at 1.⁶

Even after Elmasry moved to 17B, he and Farag still "were only able to converse with each other . . . over the heads of other passengers." Gov't Stat. ¶ 39 (quoting Compl. ¶ 30). Once again, they spoke "in a mixture of Arabic and...