Ascent of the flying imams

The case of the six flying imams who were removed from a USAirways flight in Minneapolis for questioning by law enforcement authorities is pending in federal district court before Judge Ann Montgomery. In addition to our own notice, the case has drawn national attention including the attention of Congress, which passed a law protecting private citizens who report suspicious activity to law enforcement authorities. The flying imams had named USAirways passengers who raised concerns about their behavior as John Doe defendants in their original complaint.
The flying imams have brought federal civil rights and state law claims against USAirways, the Metropolitan Airports Commission (MAC) police officers and the FBI Special Agent involved in their removal from the flight and their questioning. The defendants brought various motions to dismiss the claims against them. This past Friday Judge Montgomery ruled on the dismissal motions, denying the motions of the law enforcement authorities for dismissal on the ground of qualified immunity. Running 47 pages, it is an interesting and important decision.
Judge Montgomery’s decision depends in part on difficult analytical issues raised by the distinction between the suspicion necessary for lawful investigatory stops and the probable cause necessary for arrests. Judge Montgomery treats the issues at some length in her decision. Without going into those legal issues here, I want to note certain striking elements of her decision.
The imams were arrested in November 2006 as they were returning home from a convention of the North American Imams Federation in a suburb of Minneapolis. Three of the six imams had prayed before the passengers at the airport as they awaited the departure of the flight. A passenger had passed a note to the pilot pilot pointing out suspicious activity:

6 suspicious Arabic men on plane, spaced out in their seats. All were together saying “…Allah…Allah” cursing U.S. involvement w/Saddam before flight–1 in front exit row, another in first row 1st class, another in 8D, another in 22D, two in 25 E&F.

Onboard USAirways personnel called the tower to advise to advise that the six passengers would be removed and ask for officers to come to the gate while the six passengers were removed. The first MAC officers on the scene was advised by a USAirways manager of the passenger’s note. He was also advised that some of the six passengers had checked no luggage, some had asked for seabelt extensions, some had one-way tickets and all six were of Middle Eastern descent. A USAirways flight attendant told one of the MAC officers that, in her opinion, the two seatbelt extensions requested by the imams were unnecessary given their sizes.
The officers boarded the plane and interviewed the passenger who had written the note. Judge Montgomery relates that after leaving the plane, the MAC officers conferred and decided that the request for seatbelt extensions, the praying and utterances prior to boarding the plane, and the seating configuration amounted to suspicious behavior. They alerted the FBI and were requested to detain the imams for questioning.
The imams were removed from the plane and searched. They were handcuffed, taken into custody and transported to the airport’s police command center. There they were interrogated by the FBI and Secret Service for several hours and released five to six hours after they were removed from the aircraft.
The principal issue addressed by Judge Montgomery in her decision is whether the law enforcement officer defendants are entitled to qualified immunity for their actions. Here the question is whether the law enforcement officers could reasonably have believed that their actions in detaining the flying imams were lawful. She holds that the flying imams were the subject of an unlawful arrest and that no reasonable law enforcement officer could have believed otherwise.
Judge Montgomery is highly critical of the law enforcement officers’ failure to ascertain facts that would have exonerated the imams when they were removed from the aircraft. “After only a cursory, routine investigation, several of [the expressed] concerns would have been eliminated leaving no basis for probable cause based on the remaining information.”
Judge Montgomery cites the fact that USAirways had assigned the seats taken by the imams and that they had not in fact purchased one-way tickets. She refers to the imams’ reported cursing of the United States as constitutionally protected speech. And regarding the requested seatbelt extensions (one of which, she notes, was requested by a blind imam), she says:

The MAC Defendats have produced no evidence of a documented instance in which seatbelt extensions were used as a weapon or that law enforcement ever expressed concern about their use as a weapon. It is difficult to understand what danger a seatbelt extension poses that is not also posed by a sturdy belt with a large buckle. Even assuming the extensions could be employed as a weapon, the MAC Defendants have failed to offer a reasoned explanation of how Saleddin, who is completely blind, could pose such a threat. Finally, the MAC defendants had no information that they should be on the look-out for suspicious activity involving Muslims and never contacted TSA to determine if Plaintiffs were heightened security risks.

I am not sure what to make of Judge Montgomery’s observations here. As I recall, prior to 9/11, there was no documented instance of box cutters having been used to pull off a hijacking. As I recall, prior to Richard Reid’s attempted bombing of American Airline Flight 63 in December 2001, there was no documented instance of shoes having been used as bombs. When taken together with other circumstances, the imams’ request for unneeeded (according to the flight attendant) seatbelt extensions seems to have raised a reasonable suspicion that a crime was being committed.
As for some of the other circumstances, Judge Montgomery states: “Praying in public, commenting on current events, and even criticizing government policy is protected speech under the First Amendment.” Judge Montgomery transforms the reported cursing of the Unitd States into commenting on current events. Other statements made in the course of the decision seem questionable. Judge Montgomery states, for example: “Asking Plaintiffs about the reason for their visit to Minneapolis would likely have informed the officers about the three-day NAIF conference, which would help explain why the six imams were together and the lack of checked baggage.” In the concluding paragraph of this key part of her decision, Judge Montgomery states:

Unquestionably the events of 9/11 changed the calculus in the balance American society chooses to make, especially in airport settings, between liberty and security. Ultimately, the proper balance will be achieved, in large part, because we have the most capable and diligent law enforcement and intelligence communities in the world. But when a law enforcement officer exercises the power of the Sovereign over its citizens, she or he has a responsibility to operate within the bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to that responsibility.

Reading the opinion, I ask myself: What was law enforcement to do? I take it that Judge Montgomery believes the authorities were required to release the imams after a brief investigatory stop to go on their way and catch another flight, as they were allowed to do after the more intense five- or six-hour investigation to which they were subject. Can we reasonbaly rely on law enforcement authorities to be so capable and diligent that they will arrive at appropriate determinations within the matter of a few minutes? It is one question that is left hanging in Judge Montgomery’s decision.
Judge Montgomery’s denial of qualified immunity to the law enfocement authorities in the case is an appealable order. She has addressed the issues related to qualified immunity (as well as the other issues addressed in her decision) carefully and in detail, but her decision certainly warrants further review in the Eighth Circuit. One hopes that the law enforcement defendants will seek the review to which they are entitled.