Farag v. United States
2008 WL 4965167, 2008 U.S. Dist. LEXIS 95331, 587 F. Supp. 2d 436 (2008)
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Rule of Law:
A person's ethnicity cannot be used as a factor to establish probable cause or reasonable suspicion for a seizure under the Fourth Amendment. An investigative detention becomes a de facto arrest requiring probable cause when its scope becomes unreasonably intrusive, such as through an overwhelming show of force, transportation to a police station for interrogation, and prolonged detention.
Facts:
- Tarik Farag, an American citizen and federal corrections officer, and Amro Elmasry, an Egyptian citizen, were friends of Egyptian birth flying from San Diego to New York.
- During the flight, Elmasry changed his seat to sit in an empty middle seat between two undercover counterterrorism agents, Detective Smith and Special Agent Plunkett, in order to be closer to Farag.
- Farag and Elmasry conversed loudly over the heads of other passengers in a mixture of Arabic and English.
- The agents observed Elmasry looking at his watch at various points, such as takeoff and landing, and also saw him delete several entries from his cell phone's address book while the plane taxied to the gate.
- After the agents decided the men's behavior was suspicious, they arranged for a team of officers to meet the plane upon landing at JFK airport.
- Upon deplaning, Farag and Elmasry were met by at least ten officers in SWAT gear with shotguns and police dogs, were separated, frisked, and handcuffed.
Procedural Posture:
- Tarik Farag and Amro Elmasry filed an action in the U.S. District Court against FBI Special Agent Plunkett, NYPD Detective Smith, the United States, and other parties.
- Plaintiffs' claims against the City of New York, the Port Authority, and its officers were subsequently dismissed by agreement.
- The remaining defendants (the Government) filed a motion for summary judgment, arguing the detention was a lawful investigative stop or, alternatively, an arrest supported by probable cause.
- Defendants Plunkett and Smith also moved for summary judgment on the basis of qualified immunity.
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Issue:
Does the seizure and four-hour detention of two men of Arab ethnicity, based on their individually benign actions on an airplane and their ethnicity, constitute a de facto arrest without probable cause in violation of the Fourth Amendment?
Opinions:
Majority - Block, Senior District Judge
Yes, the seizure constituted a de facto arrest without probable cause, violating the Fourth Amendment. The court first determined that the seizure was a de facto arrest, not a permissible Terry stop, based on three sets of factors: 1) the overwhelming show of force at the airport terminal (numerous officers in SWAT gear, police dogs, use of handcuffs); 2) the transportation of the plaintiffs to a police station and confinement in jail cells for custodial interrogation; and 3) the excessive duration of the detention, which lasted approximately four and a half hours. The court reasoned that these actions were far too intrusive for an investigative stop. Second, the court held there was no probable cause for the arrest. It analyzed the non-ethnic factors—such as changing seats, looking at a watch, and speaking loudly—and found them to be a collection of benign circumstances that, even when viewed together, would not lead a person of reasonable caution to believe a crime was being committed. Most significantly, the court explicitly rejected the government's argument that the plaintiffs' Arab ethnicity could be used as a factor in the probable cause analysis, holding that the likelihood of any given Arab airline passenger being a terrorist is so negligible that ethnicity has no probative value for establishing particularized suspicion.
Analysis:
This case is significant for its unequivocal rejection of using Arab ethnicity as a factor in the reasonable suspicion or probable cause calculus in a post-9/11 context. The court's decision serves as a strong judicial check on potential racial or ethnic profiling in counterterrorism efforts, affirming that heightened security fears do not override the Fourth Amendment's requirement for particularized, objective evidence of wrongdoing. By meticulously detailing how the law enforcement response—including the show of force, transportation to a station, and lengthy detention—far exceeded the bounds of a Terry stop, the opinion provides a clear analytical framework for lower courts to distinguish between lawful investigative detentions and unlawful de facto arrests in similar high-stakes situations. The ruling reinforces the principle that constitutional protections against unreasonable seizure remain robust, even when national security is invoked.
