The Magazine

The Flying Imams Win

And the rest of us lose.

Nov 9, 2009, Vol. 15, No. 08 • By SCOTT W. JOHNSON
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

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.

One of the striking elements of the facts in the case is the number of law enforcement officers who participated in the detention or questioning of the imams: Montgomery mentioned six MAC officers, one federal air marshal, three FBI special agents, at least one Secret Service officer, and four other law enforcement officers. At the time of the arrest, Montgomery observed, law enforcement officers outnumbered the imams fifteen to six.

So far as one can determine from the judge's opinion, not a single one of these officers questioned the legality of the imams' detention and interrogation. Given the variety of officers and agencies involved, one might almost posit the imams' detention as a case study in whether a reasonable law enforcement officer would think the conduct in question was legal. All of these apparently thought it was.

Montgomery was highly critical of the law enforcement officers' failure to ascertain facts that would have exonerated the imams when they were removed from the aircraft. She cited the fact that USAirways had assigned the seats taken by the imams and that they had not in fact purchased one-way tickets. She called the imams' reported cursing of the United States constitutionally protected speech. And regarding the requested seatbelt extensions (one of which, she notes, was requested by a blind imam), she said:

The MAC Defendants have produced no evidence of a documented instance in which seatbelt extensions were used as a weapon or that law enforcement ever expressed concern about their use as a weapon. It is difficult to understand what danger a seatbelt extension poses that is not also posed by a sturdy belt with a large buckle. Even assuming the extensions could be employed as a weapon, the MAC Defendants have failed to offer a reasoned explanation of how Saleddin, who is completely blind, could pose such a threat.

These observations are odd. Prior to 9/11, there was no documented instance of box cutters having been used by hijackers. Prior to Richard Reid's attempted bombing of American Airline Flight 63 in December 2001, there was no documented instance of shoes having been used as bombs. When taken together with other circumstances, the imams' request for unneeded (according to the flight attendant) seatbelt extensions certainly raised reasonable suspicion if not probable cause.

As for some of the other circumstances, Montgomery stated: "Praying in public, commenting on current events, and even criticizing government policy is protected speech under the First Amendment." This is true. She failed to note, however, that lawful speech such as cursing the United States might reasonably bear on the interpretation of other behavior brought to the attention of law enforcement.

Neither does the decision state what the interrogation of the imams turned up about their backgrounds. It wouldn't have taken much digging to discover that one of them, Omar Shahin, was a former representative of and fundraiser for the Muslim charity KindHearts, shuttered by the Treasury Department as a Hamas front in February 2006. (Shahin claims he "had no clue what they were doing.")

In the concluding paragraph of this key part of her decision, Montgomery stated:

Unquestionably the events of 9/11 changed the calculus in the balance American society chooses to make, especially in airport settings, between liberty and security. Ultimately, the proper balance will be achieved, in large part, because we have the most capable and diligent law enforcement and intelligence communities in the world. But when a law enforcement officer exercises the power of the Sovereign over its citizens, she or he has a responsibility to operate within the bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to that responsibility.

Reading the opinion elicits a question: Can we reasonably rely on law enforcement authorities to be so capable and diligent that they will arrive at appropriate determinations within a matter of a few minutes--when fifteen out of fifteen law enforcement professionals handled the case of the flying imams as they did?

The decision raises perhaps an even more basic question: What was law enforcement to do? Judge Montgomery believes the authorities were required to release the imams after a brief investigatory stop to go on their way and catch their flight or board another. The next time around, it will be the imams who fly and the other passengers who stay behind.

Scott W. Johnson is a Minneapolis attorney and contributor to the Power Line blog (powerlineblog.com).