On Wednesday, law enforcement from Customs & Border Patrol, a sister agency of the TSA living under the DHS umbrella, stood in a JFK jetway and prevented an entire 757 (capacity: 180 + crew) full of passengers from deplaning until they show ID. If the flight just came from overseas, it would be unusual but not too surprising. But Delta Flight 1583 came from San Francisco.
Who were they looking for? One of Trump’s illegal immigrants, of course. “According to CBP, the person agents sought had been issued an order of removal based on convictions for domestic assault, driving while impaired, and violation of an order of protection.” (Gothamist). After checking every ID, they determined that the person they were seeking was not on the flight.
Let’s be clear about a few things here:
- Every person on that plane was “seized” as it is defined in Fourth Amendment law. That is, a reasonable person would not believe they were free to go, and thus, they were detained. United States v. Mendenhall, 446 U.S. 544, 554 (1980).
- The minimum standard for seizing an individual is “reasonable suspicion” that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968).
- There was not reasonable suspicion that the 180 passengers on that flight were involved in a crime. In fact, there was not even reasonable suspicion that the person they were seeking was committing a crime.
- There was no “public safety” or “exigent circumstances” exception here. This was not a hunt for a terrorist with a bomb — his most serious charge was assault.
- Therefore, the Fourth Amendment’s command that “[t]he right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated” was indeed violated.
- Additionally, the elements of civil “false imprisonment” in New York are: (1) intentional confinement, (2) consciousness of the confinement by the victim, (3) lack of consent, and (4) lack of privilege. Broughton v. New York, 37 N.Y.2d 451 (N.Y. 1975). Given that they were seized in violation of the Fourth Amendment, there is no privilege, and everyone on this plane has a case for false imprisonment.
It’s times like these when I can’t wait to have my law license, because this would be a perfect class-action.
For future reference, you may be wondering what are your rights in this situation. Given that the seizure was unconstitutional, you have the right to refuse to participate at all. You may refuse to show ID, you may refuse an order to stop, and if it were me, I would refuse to retract my middle finger. Would I have been arrested anyway? Possibly, although being a white American, I have a feeling they would have just told me to go.
Welcome to Trump’s America.
In 2014, a man demonstrated that you don’t have to show ID once you’ve arrived at your destination. It’s clear that these people were legally detained, and equally tool from this historic case that DHS can’t force you to ID yourself, or submit to further searches, after arrival, absent some sort of probably cause. Hopefully these passengers can submit _individual_ cases, in order to gain maximum individual compensation.
If they were really going to try to claim reasonable suspicion based on seeking a fugitive, they would have been required to exclude everyone who didn’t match the physical description before emailed ID, particularly gender. So I think DHS has dug itself a whopping big pit of litigation this time.
INS vs Delgado should apply here, which found in a 1984 incident that INS agents (now DHS) require individualized reasonable suspicion before questioning people:
This sentence from Delgado seems particularly applicable to the aircraft situation in demonstrating that the passengers were legally “seized”:
According to the Court of Appeals, the stationing of agents near the doors meant that “departures were not to be contemplated,” and thus, workers were “not free to leave.” In support of the decision below, respondents argue that the INS created an intimidating psychological environment when it intruded unexpectedly into the workplace with such a show of officers.
From the photos we can see that agents were stationed at the door of the aircraft. Some have argued elsewhere that this seizure is legally justified under the “vicinity of the border” rule, given NYC being on the U.S. coast. However, that only applies to legally established border checkpoints, not to random stops in an airport. GIven that CBP has never yet produced a law that says identification is required to board and aircraft, and actually argued the reverse, they can hardly justify the demand for an ID to exit an aircraft.
Note that even though in Delgado the Supreme Court recersed the 9th Circuit in favor of the INS, the case pretty well establishes that if people are effectively blocked an exit they are seized. In Delgado the workers were free to keep working and move about the plant, but that clearly was not the case with the aircraft, where passengers must unboard to make connecting flights or meet scheduled pickups.
Can you really blame this on Trump? Or just on CBP/DHS gone wild?
Of course I can blame Trump. I blamed Obama when his TSA was abusing the people, and now I blame Trump when his DHS is doing the same.