The Magazine

The Flying Imams Win

And the rest of us lose.

Nov 9, 2009, Vol. 15, No. 08 • By SCOTT W. JOHNSON
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The case of the flying imams who were removed in November 2006 from a USAirways flight in Minneapolis for questioning by law enforcement authorities concluded in the Minnesota federal district court before Judge Ann Montgomery. The parties arrived at a settlement of the case on October 20 in a court-supervised conference. The amounts paid by the defendants remain confidential.

The case drew national attention--including that of Congress, which passed a law protecting private citizens who report suspicious activity and law enforcement authorities who act in good faith on the information. The imams had named USAirways passengers who raised concerns about their behavior as John Doe defendants in their original complaint, but later dropped the passengers.

Represented by an attorney from the New York chapter of the Council on American-Islamic Relations (CAIR), the imams went forward with federal civil rights and state law claims against USAirways and the Metropolitan Airports Commission (MAC) police officers and FBI special agents involved in their removal from the flight and their questioning. This past July, Judge Montgomery denied the motions of the law enforcement defendants for dismissal on the ground of qualified immunity.

When these defendants appealed the ruling to the Eighth U.S. Circuit Court of Appeals, she scheduled the conference that resulted in the termination of the lawsuit. As a result of the recent settlement, Montgomery's 47-page decision of last July stands as the last word on the law applicable to the case. Without going into all the legal issues it discusses, some aspects of it deserve serious scrutiny. Montgomery emphasized the distinction between the suspicion necessary for lawful investigatory stops (a relatively low standard) and the probable cause necessary for arrests (a higher standard), and her comments addressing the issue raise lingering concerns.

The six imams were detained as they were returning home from a convention of the North American Imams Federation in a suburb of Minneapolis. Three of the six 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 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 MAC dispatch to advise that the six passengers would be removed and ask for officers to come to the gate. The first MAC officer 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 seatbelt 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.

A MAC officer and a federal air marshal boarded the plane and interviewed the passenger who had written the note. In her decision the judge stated that after leaving the plane, the 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 taken into custody and transported in handcuffs to the airport's police command center. There they were interrogated by the FBI and Secret Service for several hours, then released five to six hours after leaving the aircraft.

The principal issue addressed by Montgomery's decision is whether the law enforcement defendants were entitled to qualified immunity for their actions. This immunity protects government officials from monetary claims under circumstances where a reasonable officer would not know his conduct was illegal. Montgomery held that the flying imams were the subject of an unlawful arrest and that no reasonable law enforcement officer could have believed otherwise.

Quoting case law, Montgomery stated that the relevant question in determining qualified immunity is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. She held that no reasonably competent law enforcement officer could have believed that his conduct was legal in the imams' case.