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.