George v. Rehiel

• Citation: 738 F.3d 562
• Decision Date: 24 December 2013
• Docket Number: No. 11–4292.,11–4292.
• Parties: Nicholas GEORGE v. William REHIEL, Philadelphia Police Officer, in his Individual Capacity; Edward Richards, Philadelphia Police Officer, in his Individual Capacity; John Doe 1, John Doe 2 and John Doe 3, Employees of the Transportation Security Administration, in their Individual Capacities; John Doe 4 and John Doe 5, Philadelphia Police Department Detectives, in their Individual Capacities; United States of America John Does 1–5, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

738 F.3d 562

Nicholas GEORGE

v.William REHIEL, Philadelphia Police Officer, in his Individual Capacity; Edward Richards, Philadelphia Police Officer, in his Individual Capacity; John Doe 1, John Doe 2 and John Doe 3, Employees of the Transportation Security Administration, in their Individual Capacities; John Doe 4 and John Doe 5, Philadelphia Police Department Detectives, in their Individual Capacities; United States of America John Does 1–5, Appellants.

No. 11–4292.

United States Court of Appeals,Third Circuit.

Argued: Oct. 5, 2012.

Filed: Dec. 24, 2013.

Mark B. Stern, Esq., Douglas N. Letter, Esq., Sharon Swingle, Esq. (Argued), Attorneys, Appellate Staff, Washington, D.C., Attorneys for Appellants.

Zachary Katznelson, Esq. (Argued), Mitra Ebadolahi, Esq., Benjamin E. Wizner, Esq., Lee B. Rowland, Esq., American Civil Liberties Union Foundation, New York, NY, Mary Catherine Roper, Esq., American Civil Liberties Union Foundation, of Pennsylvania, David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg, LLP, Philadelphia, PA, Attorneys for Appellee.

Before: McKEE, Chief Judge, JORDAN and VANASKIE, Circuit Judges.

OPINION

McKEE, Chief Judge.

This appeal arises from a suit against five Federal Officials, three of whom were employed by the Transportation Security Administration (“TSA”) ¹, and two of whom were employed by the Federal Bureau of Investigation and who were assigned to the FBI's Joint Terrorism Task Force (“JTTF”). ² They appeal the district court's denial of their Fed.R.Civ.P. 12(b)(6) motions in which they asserted that they were entitled to qualified immunity against Nicholas George's claims that they violated his Fourth and First Amendment rights during the course of an airport screening at the Philadelphia International Airport.³ For the reasons that follow, we conclude that the federal defendants are entitled to qualified immunity and will reverse the district court's denial of their motion to dismiss.

I. FACTS

According to the allegations in his amended complaint,⁴ on August 29, 2009, Nicholas George, a 21–year old citizen of the United States, was scheduled to fly from Philadelphia, Pennsylvania, to California to begin his senior year at Pomona College. George claims that after he arrived at the Philadelphia International Airport, he was detained, interrogated, handcuffed, and then jailed, in violation of his Fourth and First Amendment rights, because he was carrying a deck of Arabic–English flashcards and a book critical of American interventionism.

When he arrived at the Airport, George presented his boarding pass and showed TSA Officials valid identification. He was then asked about the contents of his carry-on bag, and he told a TSA screening Official that it contained two stereo speakers. He was asked to remove them so that they could be separately screened by x-ray. After George walked through the screening device, a TSA Official told him to enter a glass-enclosed area for additional screening. George did so and another TSA Official (“John Doe 1”) told him to empty his pockets. George complied and handed over a set of approximately 80 handwritten Arabic–English flashcards.

George contends that the flash cards included words commonly used in contemporary Middle Eastern publications and electronic media. He claims that he had them because he was trying to become sufficiently proficient in Arabic to be able to read and understand discussions in contemporary Middle Eastern media. The flashcards included every day words and phrases such as “day before yesterday,” “fat,” “thin,” “really,” “nice,” “sad,” “cheap,” “summer,” “pink,” and “friendly.” However, they also contained such words as: “bomb,” “terrorist,” “explosion,” “attack,” “battle,” “kill,” “to target,” “to kidnap,” and “to wound.”

George had a double major in Physics and Middle Eastern Studies and had traveled to Jordan to study Arabic as part of a study abroad program organized by the Council on International Educational Exchange.⁵ He acknowledges that after completing his program—for which he received course credit at Pomona College—he spent approximately five weeks traveling in Ethiopia, Egypt and Sudan. He travelled there as a tourist and to practice his Arabic. ⁶

After seeing the flashcards, John Doe 1 took George to another screening area where Doe 1 and a second TSA screener (“John Doe 2”) swabbed George's cell phone for explosives, and searched his carry-on items. Either John Doe 1 or John Doe 2 then telephoned a supervisor, Jane Doe 3, and she arrived at the screening area within 30 minutes.

George claims that upon her arrival, Jane Doe 3 subjected him to aggressive interrogation and detained him for an additional 15 minutes. When asked about his flashcards, George explained that he was using them to learn Arabic vocabulary. He submits that the interrogation included the following exchange:

Jane Doe 3: You know who did 9/11?

George: Osama bin Laden.

Jane Doe 3: Do you know what language he spoke?

George: Arabic.

Jane Doe 3: Do you see why these cards are suspicious?

Jane Doe 3 also commented about one of his books entitled, “Rogue Nation: American Unilateralism and the Failure of Good Intentions.” The book was critical of United States foreign policy. However, in responding to Jane Doe 3's questioning, George insists that he made no threatening statements, and that he neither said nor did anything that would lead a reasonable government official to regard him as a threat.

As Jane Doe 3 was in mid-sentence questioning George, William Rehiel, a Philadelphia Police Officer, arrived at the airport screening area. Rehiel immediately handcuffed George and led him through the Terminal and down a set of stairs to the Airport Police Station in the plain sight of other passengers. Upon arriving there, he was locked in a cell for more than 4 hours. He remained in handcuffs for the first two hours of that detention.

Philadelphia Police held George for further questioning by two FBI Joint Terrorism Task Force (“JTTF”) Officials, “John Doe 4” and “John Doe 5.” However, no Philadelphia Police officers questioned him or took any meaningful steps to investigate whatever suspicions they may have had while he was confined. Furthermore, no one told George why he was being held. Rather, the Philadelphia Police called the JTTF Officials for them to evaluate whether he was a threat.

When the JTTF Officials finally arrived, they searched his carry-on belongings, and then escorted him out of his cell to a room where they interrogated him for 30 minutes. They questioned him about his personal and religious beliefs, travel, educational background, and political and social associations, e.g., whether he was a member of “pro-Islamic” or “communist” groups on campus, or whether he met anyone during his travels who was overtly against the U.S. government.

After about 30 minutes of questioning, the JTTF Officials told George that the Philadelphia Police called them to evaluate whether he was a real threat, that they (the JTTF Officials) had concluded that he was not a threat, and that he was free to leave. Thus, more than five hours after his ordeal began, he was released from custody. George claims that he was not free to leave at any time before the JTTF Officials allowed him to go, and he was not advised of his rights, allowed to make a phone call or contact an attorney before then.

The following day, George returned to the airport and boarded a flight that took him to his destination without further incident.

II. DISTRICT COURT PROCEEDINGS

George filed a complaint and an amended complaint in the district court asserting a Bivens ' action against the three TSA Officials and the two JTTF Officials.⁷,⁸ The amended complaint alleges that the individual Federal Officials 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 Arabic-language flashcards and the content of a book he was carrying, in violation of his First Amendment rights.

As we noted at the outset, the TSA and JTTF Officials filed motions to dismiss the Bivens ' claims pursuant to Fed.R.Civ.P. 12(b)(6). They argued that George's allegations did not establish a constitutional violation, and that even if he had adequately pled such a violation, they were entitled to qualified immunity because the underlying constitutional rights were not so clearly established at the time of his detention to deprive them of that defense.

The district court denied the motions to dismiss explaining that “the amended complaint alleges claims for relief that are ‘plausible on [their] face.’ Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).” The individual Federal Officials filed an appeal from the denial of their Rule 12(b)(6) motions and an unopposed motion for clarification in which they asked the district court to confirm its intent to reject their assertion of qualified immunity.

In response, the district court further explained that the amended complaint “contains sufficient factual allegations of specific conduct on the part of each defendant that, if true, constitute violations of plaintiff's First and Fourth Amendment rights.” The Court further explained:

The procedures employed by the defendants, as alleged here, do not appear to have been minimally designed to protect plaintiff's personal privacy and individual liberty rights. The TSA's statutory and regulatory authority appears to have been exhausted after the first 10–15 minutes, once plaintiff was found to possess nothing that would endanger airline safety. Moreover, an investigatory detention and arrest are constitutional only if supported by reasonable suspicion of criminal activity or probable cause of a specific crime. Here, the amended complaint does not provide a reasonable inference of...