16:17, October 12 56 0 theguardian.com

2017-10-12 16:17:02
Lawsuit claims border patrol violated constitution by searching Delta plane

The Department of Homeland Security is facing a class action lawsuit over an incident in which all the passengers on a domestic flight were held and searched by US Customs and Border Protection (CBP) agents before being allowed to get off their plane – potentially in violation of the US constitution.

The action, filed in New York, is part of an ACLU-backed effort to force Homeland Security and its subsidiary agencies, CBP and Immigration and Customs Enforcement (Ice), to clarify their position on an unusual and potentially unconstitutional inspection procedure it described as “routine” in press reports at the time.

The suit claims that after Delta flight 1583 from San Francisco landed at New York’s JFK on 22 February, passengers had their identity documents seized and searched, a violation of constitutional protections against unreasonable search and seizure under the fourth amendment.

“The officers did not have any legal justification for seizing and searching these passengers,” said ACLU deputy legal director Cecillia Wang.

“This is a serious and illegal erosion of our basic civil liberties. Because CBP publicly took the position that this action was pursuant to policy and a ‘routine’ matter, we are compelled to take action to ensure that this doesn’t happen to passengers on future flights.”

The lead plaintiff in the case, Kelley Amadei, who was on the flight with her seven year old son, told the Guardian that CDP’s demand had made her feel “intimidated and confused as to why they would be asking for our IDs at the end of a flight. I felt like they weren’t looking for any one person because they were checking everyone. I felt violated”.

The CDP said that its agents, acting on an Ice request, asked to see passengers’ identification as they searched for an immigrant who had received a deportation order after multiple criminal convictions for domestic assault, driving while impaired and violating a protective order.

“An individual with a final order of removal from a federal immigration judge was scheduled to be on a flight from San Francisco to JFK on the evening of 22 February, in furtherance of the removal process,” Ice said in a statement provided to the Washington Post. “It was later determined that the individual was not placed on the flight in San Francisco.”

In the suit, Amadei and eight other plaintiffs claim two uniformed CBP officers “positioned themselves in the doorway of the airplane, forcing passengers to queue inside and delaying their exit”.

The officers, the suit alleges, “made it clear, through their own conduct and by directing pre-arrival announcements by the flight crew, that compliance was not voluntary and that passengers would not be permitted to disembark until they showed their identification documents”.

The plaintiffs further claim the officers did not have a warrant permitting search or seizure of the passengers or probable cause to believe that anyone on the plane had committed a crime.

Amadei says she went to ask the officers why the passengers had been detained, and was told “you have nothing to worry about, leave it alone”.

“It felt like an unwarranted search and request for identification in a situation that did not call for it. When no explanation was given the feeling that our fourth amendment rights had been violated were amplified.”

“It was a show of force. I’ve been nervous that it could happen again, or that I might be detained for no reason. It’s given more of a sense of awareness, a sense of living in a police state.”

Amadei also says she does not accept the official explanation for the search. “If they were looking for an individual who was known, why were they checked every single person on the flight, male, female, regardless of age and regardless of race.”

Her son, she says, was also shaken by the experience. In the court papers, she states: “My son was so scared that he asked if our family was in trouble and whether everything was okay.”

The suite seeks a permanent injunction barring the government from seizing and conducting warrantless and/or suspicionless identification checks of passengers disembarking from domestic flights.

“We feel compelled to bring this suit because CBP said the search was consistent with agency policy,” says the ACLU’s Wang. The civil rights body sent a letter expressing concern over the CDP action in September and asking the agency to confirm under what authority it had acted.

“They did not respond so we feel we need to bring the suit in order to get a court order that clarifies the fourth amendment does not permit the CDP to apprehend every passenger on a domestic flight.”

The fourth amendment to the US Constitution, adopted in 1792, reads: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”