Nicholas George v. William Rehiel , 738 F.3d 562 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 11-4292
NICHOLAS GEORGE
v.
WILLIAM REHIEL, PHILADELPHIA POLICE OFFICER,
IN HIS INDIVIDUAL CAPACITY; EDWARD RICHARDS,
PHILADELPHIA POLICE OFFICER, IN HIS
INDIVIDUAL CAPACITY; JOHN DOE 1, JOHN DOE 2
AND JOHN DOE 3, EMPLOYEES OF THE
TRANSPORTATION SECURITY ADMINISTRATION, IN
THEIR INDIVIDUAL CAPACITIES; JOHN DOE 4 AND
JOHN DOE 5, PHILADELPHIA POLICE DEPARTMENT
DETECTIVES, IN THEIR INDIVIDUAL
CAPACITIES; UNITED STATES OF AMERICA
John Does 1-5,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 10-cv-00586)
District Judge: Hon. Edmund V. Ludwig
Before: McKEE, Chief Judge, JORDAN and VANASKIE,
Circuit Judges
Argued: October 5, 2012
(Opinion filed: December 24, 2013)
MARK B. STERN, ESQ.
DOUGLAS N. LETTER, ESQ.
SHARON SWINGLE, ESQ. (Argued)
Attorneys, Appellate Staff
Civil Division
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
Attorneys for Appellants
ZACHARY KATZNELSON, ESQ. (Argued)
MITRA EBADOLAHI, ESQ.
BENJAMIN E. WIZNER, ESQ.
LEE B. ROWLAND, ESQ.
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
MARY CATHERINE ROPER, ESQ.
American Civil Liberties Union Foundation
of Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106
DAVID RUDOVSKY, ESQ.
Kairys, Rudovsky, Messing & Feinberg, LLP
718 Arch Street
Suite 501 South
Philadelphia, PA 19106
Attorneys for Appellee
OPINION
McKEE, Chief Judge.
This appeal arises from a suit against five Federal
Officials, three of whom were employed by the
Transportation Security Administration (“TSA”)1, and two of
whom were employed by the Federal Bureau of Investigation
and who were assigned to the FBI’s Joint Terrorism Task
Force (“JTTF”).2 They appeal the district court’s denial of
their Fed.R.Civ.P. 12(b)(6) motions in which they asserted
that they were entitled to qualified immunity against Nicholas
George’s claims that they violated his Fourth and First
1
John Does 1 and 2 and Jane Doe 3.
2
John Does 4 and 5.
2
Amendment rights during the course of an airport screening at
the Philadelphia International Airport.3 For the reasons that
follow, we conclude that the federal defendants are entitled to
qualified immunity and will reverse the district court’s denial
of their motion to dismiss.
I. FACTS
According to the allegations in his amended complaint,4 on
August 29, 2009, Nicholas George, a 21-year old citizen of
the United States, was scheduled to fly from Philadelphia,
Pennsylvania, to California to begin his senior year at
Pomona College. George claims that after he arrived at the
Philadelphia International Airport, he was detained,
interrogated, handcuffed, and then jailed, in violation of his
Fourth and First Amendment rights, because he was carrying
a deck of Arabic-English flashcards and a book critical of
American interventionism.
When he arrived at the Airport, George presented his
boarding pass and showed TSA Officials valid identification.
He was then asked about the contents of his carry-on bag, and
he told a TSA screening Official that it contained two stereo
speakers. He was asked to remove them so that they could be
separately screened by x-ray. After George walked through
the screening device, a TSA Official told him to enter a glass-
enclosed area for additional screening. George did so and
another TSA Official (“John Doe 1”) told him to empty his
3
Pursuant to a stipulated protective order entered in the
district court, the three TSA employees named as individual
defendants were named as John Does 1-2 and Jane Doe 3, and
were identified under seal. The two individual defendants
alleged in the complaint to be “detectives of the Philadelphia
Police Department,” were identified in preliminary discovery
to be FBI Agents with the JTTF. Those two individual
defendants have been designated John Does 4-5 pursuant to
the stipulated protective order.
4
In reviewing a denial of qualified immunity at the Rule
12(b)(6) stage of litigation, we must accept all plaintiff’s
allegations as true and draw all inferences in his or her favor.
Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 1991).
3
pockets. George complied and handed over a set of
approximately 80 handwritten Arabic-English flashcards.
George contends that the flash cards included words
commonly used in contemporary Middle Eastern publications
and electronic media. He claims that he had them because he
was trying to become sufficiently proficient in Arabic to be
able to read and understand discussions in contemporary
Middle Eastern media. The flashcards included every day
words and phrases such as “day before yesterday,” “fat,”
“thin,” “really,” “nice,” “sad,” “cheap,” “summer,” “pink,”
and “friendly.” However, they also contained such words as:
“bomb,” “terrorist,” “explosion,” “attack,” “battle,” “kill,” “to
target,” “to kidnap,” and “to wound.”
George had a double major in Physics and Middle
Eastern Studies and had traveled to Jordan to study Arabic as
part of a study abroad program organized by the Council on
International Educational Exchange.5 He acknowledges that
after completing his program – for which he received course
credit at Pomona College – he spent approximately five
weeks traveling in Ethiopia, Egypt and Sudan. He travelled
there as a tourist and to practice his Arabic.6
After seeing the flashcards, John Doe 1 took George to
another screening area where Doe 1 and a second TSA
screener (“John Doe 2”) swabbed George’s cell phone for
explosives, and searched his carry-on items. Either John Doe
1 or John Doe 2 then telephoned a supervisor, Jane Doe 3,
and she arrived at the screening area within 30 minutes.
George claims that upon her arrival, Jane Doe 3
subjected him to aggressive interrogation and detained him
for an additional 15 minutes. When asked about his
flashcards, George explained that he was using them to learn
Arabic vocabulary. He submits that the interrogation
included the following exchange:
Jane Doe 3: You know who did
5
The Council is a non-profit U.S. organization founded in
1947.
6
It does not appear that George was questioned about his
travels by the TSA Officials.
4
9/11?
George: Osama bin Laden.
Jane Doe 3: Do you know what
language he spoke?
George: Arabic.
Jane Doe 3: Do you see why
these cards are suspicious?
Jane Doe 3 also commented about one of his books
entitled, “Rogue Nation: American Unilateralism and the
Failure of Good Intentions.” The book was critical of United
States foreign policy. However, in responding to Jane Doe
3’s questioning, George insists that he made no threatening
statements, and that he neither said nor did anything that
would lead a reasonable government official to regard him as
a threat.
As Jane Doe 3 was in mid-sentence questioning
George, William Rehiel, a Philadelphia Police Officer,
arrived at the airport screening area. Rehiel immediately
handcuffed George and led him through the Terminal and
down a set of stairs to the Airport Police Station in the plain
sight of other passengers. Upon arriving there, he was locked
in a cell for more than 4 hours. He remained in handcuffs for
the first two hours of that detention.
Philadelphia Police held George for further
questioning by two FBI Joint Terrorism Task Force (“JTTF”)
Officials, “John Doe 4” and “John Doe 5.” However, no
Philadelphia Police officers questioned him or took any
meaningful steps to investigate whatever suspicions they may
have had while he was confined. Furthermore, no one told
George why he was being held. Rather, the Philadelphia
Police called the JTTF Officials for them to evaluate whether
he was a threat.
When the JTTF Officials finally arrived, they searched
his carry-on belongings, and then escorted him out of his cell
to a room where they interrogated him for 30 minutes. They
5
questioned him about his personal and religious beliefs,
travel, educational background, and political and social
associations, e.g., whether he was a member of “pro-Islamic”
or “communist” groups on campus, or whether he met anyone
during his travels who was overtly against the U.S.
government.
After about 30 minutes of questioning, the JTTF
Officials told George that the Philadelphia Police called them
to evaluate whether he was a real threat, that they (the JTTF
Officials) had concluded that he was not a threat, and that he
was free to leave. Thus, more than five hours after his ordeal
began, he was released from custody. George claims that he
was not free to leave at any time before the JTTF Officials
allowed him to go, and he was not advised of his rights,
allowed to make a phone call or contact an attorney before
then.
The following day, George returned to the airport and
boarded a flight that took him to his destination without
further incident.
II. DISTRICT COURT PROCEEDINGS
George filed a complaint and an amended complaint in
the district court asserting a Bivens’ action against the three
TSA Officials and the two JTTF Officials.7, 8 The amended
7
In Bivens v. Six Unknown Named Agents of the Fed. Bur. of
Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court held
that federal officers who acted under color of law were liable
for damages caused by their violations of a plaintiff’s Fourth
Amendment rights. Pursuant to Bivens, “a citizen suffering a
compensable injury to a constitutionally protected interest
could invoke the general federal-question jurisdiction of the
district courts to obtain an award of money damages against
the responsible federal official.” Butz v. Economou, 488 U.S.
478, 504 (1978).
8
George also asserted claims against the United States under
the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), and
against two Philadelphia Police officers, Rehiel and Edward
Richards, who George alleges was the duty sergeant for at
6
complaint alleges that the individual Federal Officials
subjected him to an unreasonable search and seizure in
violation of his Fourth Amendment rights, and that they
detained him in retaliation for his possession of Arabic-
language flashcards and the content of a book he was
carrying, in violation of his First Amendment rights.
As we noted at the outset, the TSA and JTTF Officials
filed motions to dismiss the Bivens’ claims pursuant to
Fed.R.Civ.P. 12(b)(6). They argued that George’s allegations
did not establish a constitutional violation, and that even if he
had adequately pled such a violation, they were entitled to
qualified immunity because the underlying constitutional
rights were not so clearly established at the time of his
detention to deprive them of that defense.
The district court denied the motions to dismiss
explaining that “the amended complaint alleges claims for
relief that are ‘plausible on [their] face.’Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (U.S. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).” The individual
Federal Officials filed an appeal from the denial of their Rule
12(b)(6) motions and an unopposed motion for clarification in
which they asked the district court to confirm its intent to
reject their assertion of qualified immunity.
In response, the district court further explained that the
amended complaint “contains sufficient factual allegations of
specific conduct on the part of each defendant that, if true,
constitute violations of plaintiff’s First and Fourth
Amendment rights.” The Court further explained:
The procedures employed by the
defendants, as alleged here, do not
appear to have been minimally
designed to protect plaintiff’s
personal privacy and individual
liberty rights. The TSA’s
statutory and regulatory authority
least part of the time he was detained by the Philadelphia
Police, under 42 U.S.C. § 1983. However, those claims are
not before us in this appeal.
7
appears to have been exhausted
after the first 10-15 minutes, once
plaintiff was found to possess
nothing that would endanger
airline safety. Moreover, an
investigatory detention and arrest
are constitutional only if
supported by reasonable suspicion
of criminal activity or probable
cause of a specific crime. Here,
the amended complaint does not
provide a reasonable inference of
individualized suspicion or
probable cause for the prolonged
detention and arrest of plaintiff.
If the facts alleged are true, the
TSA’s seizure of plaintiff
amounted to an investigatory
detention, which escalated to an
arrest when the [Philadelphia
Police Department] handcuffed
and locked him in a cell at the
direction of the TSA and JTTF.
Accordingly, the amended
complaint adequately alleges that
each individual defendant
participated in subjecting plaintiff
to an intrusion upon his personal
freedom for more than five hours.
There were no grounds for
reasonable suspicion of any
criminality or probable cause.
Early on, it was determined that
he posed no threat to airline
safety.
Joint Appendix (JA) 84-85 (citations omitted).
The court explained its refusal to dismiss George’s
First Amendment claim as follows:
The amended complaint also
plausibly sets forth a First
8
Amendment violation. Except for
certain narrow categories, “all
speech is protected by the First
Amendment.” The “right to
receive information and ideas” is
also well-established. To proceed
on the retaliation claim, plaintiff
must plead “(1) that he engaged in
constitutionally-protected activity;
(2) that the government responded
with retaliation; and (3) that the
protected activity caused the
retaliation.”
The factual matter contained in
the amended complaint suggests
that the entirety of plaintiff’s
airport experience may fairly be
attributable to his possession of
materials protected by the First
Amendment. Plaintiff was “jailed
for several hours . . . solely
because he passed through an
airport screening checkpoint with
a set of Arabic-English flashcards
and a book critical of American
foreign policy.” Am. Compl. ¶ 1.
TSA screeners inspected the
flashcards and one screener
“flipped through the pages of
books that Mr. George had” and
the other screener discussed the
flashcards with their supervisor.
Id. ¶¶ 27-29. The TSA supervisor
questioned plaintiff because the
flashcards were “suspicious.” Id.
¶¶ 37-39. “After noticing the
book, the TSA supervisor
continued her hostile and
aggressive questioning . . . .” Id.
¶¶ 36-37. The amended
complaint adequately alleges that
each defendant violated plaintiff’s
9
right to read, study and possess
protected materials by arresting
and detaining him for his exercise
of those rights.
JA 86 (certain citations omitted).
The court also explained that the individual Federal
Officials’ assertion of qualified immunity, “may be clarified
by discovery.” JA 87.
The Federal Officials then filed this appeal from the
district courts’ October 28, 2011, Order.9
III. APPELLATE JURISDICTION AND STANDARD
OF REVIEW.
Before addressing the merits, we must first determine
whether we have jurisdiction. See In re Flat Glass Antitrust
Litig., 288 F.3d 83, 88 n.5 (3d Cir. 2002) (quoting In re Ford
Motor Co., 110 F.3d 954, 958-59 (3d Cir. 1997) (We “have
an ‘independent responsibility to examine our own
jurisdiction sua sponte.’”).10
The district court denied the individual Federal
Officials’ Rule 12(b)(6) motions to dismiss, “because the
amended complaint alleges claims for relief that are
‘plausible on [their] face.’” Apparently unsure about whether
the district court was rejecting the defendant’s assertion of
qualified immunity, the individual Federal Officials filed an
unopposed motion for clarification.
In response to the motion, the district court stated that
George’s amended complaint “contains sufficient factual
allegations of specific conduct on the part of each defendant
that, if true, constitute violations of plaintiff’s First and
9
We treated this as an Amended Notice of Appeal.
10
The Clerk of this Court initially entered an order stating
that the appeal was not taken from a final order and asking
the parties to address this Court’s jurisdiction. Following the
parties’ response to that Order, the Clerk referred the
jurisdictional issue to this merits panel.
10
Fourth Amendment rights.” The court also concluded that the
individual federal defendants’ assertion of qualified immunity
“may be clarified by discovery.”
After a review of the parties’ initial submissions and
their briefs, it is clear that we have jurisdiction over this
appeal.
“Ordinarily we do not have jurisdiction to review
district court orders denying motions to dismiss . . . because
there is no final order within the meaning of 28 U.S.C. §
1291.” Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir. 1994)
(citation omitted). However, in Ashcroft v. Iqbal, 556 U.S.
662, 672-675 (2009), the Supreme Court held that a district
court order denying a motion to dismiss based on qualified
immunity is appealable under the collateral order doctrine.
Here, however, the district court did not specifically
engage in the traditional qualified immunity analysis before
denying the individual federal defendants’ motions to
dismiss. Rather, as noted, in its order addressing the
individual federal defendants’ motion for clarification, it
simply said the “defense of qualified immunity in this case
may be clarified by discovery.” However, in that same order
the district court held that the amended complaint stated a
valid claim against each federal defendant for violation of the
First and Fourth Amendments. Thus, because the district
court held that the amended complaint sufficiently pled valid
constitutional claims against the individual federal
defendants, the practical effect of the district court’s order
was a denial of the defense of qualified immunity.
Accordingly, we will regard that order as an appealable
collateral order.
Where the district court bases its refusal to grant
a qualified-immunity motion on the premise
that the court is unable, . . . or prefers not to,
determine the motion without discovery. . ., that
refusal constitutes at least an implicit decision
that the complaint alleges a constitutional claim
on which relief can be granted. That purely
legal decision does not turn on whether the
plaintiff can in fact elicit any evidence to
support his allegations; it thus possesses the
requisite finality for immediate appealability
11
under the collateral order doctrine. . . . A
district court’s perceived need for discovery
does not impede immediate appellate review of
the legal questions of whether there is a
constitutional right at all and, if so, whether it
was clearly established at the time of the alleged
conduct, for until these threshold immunity
questions are resolved, discovery should not be
allowed.
X-Men Security, Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)
(citations, internal quotation marks and brackets omitted).
The Supreme Court has repeatedly “stressed the
importance of resolving [qualified] immunity questions at the
earliest possible stage of the litigation.” Hunter v. Bryant,
502 U.S. 224, 227 (1991). Thus, district courts should move
“expeditiously to weed out suits . . . without requiring a
defendant who rightly claims qualified immunity to engage in
expensive and time-consuming preparation to defend the suit
on the merits.” Seigert v. Gilley, 500 U.S. 226, 232 (1991).
Qualified immunity is not merely a defense, but also “an
entitlement not to stand trial or face the other burdens of
litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001).
Accordingly, “any claim of qualified immunity must be
resolved at the earliest possible stage of the litigation.” Miller
v. Clinton County, 544 F.3d 542, 547 (3d Cir. 2008).
“We exercise de novo review of a district court’s
denial of a motion to dismiss on qualified immunity grounds
as it involves a pure question of law.” James v. City of
Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citation
omitted). In reviewing a denial of qualified immunity at the
12(b)(6) stage of litigation, we must accept plaintiff’s
allegations as true and draw all inferences in his or her favor.
Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 2006).
IV. THE QUALIFIED IMMUNITY DOCTRINE.
Qualified immunity shields government officials from
personal liability for civil damages “insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
12
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
doctrine is intended “to mitigate the social costs of exposing
government officials to personal liability,” Farmer v.
Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998), by giving
officials “breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft v. Al-Kidd,
131 S. Ct. 2074, 2085 (2011). Properly applied, it protects
“all but the plainly incompetent or those who knowingly
violate the law.” Id. (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986).
Determining whether a right alleged to have been
violated is so clearly established that any reasonable officer
would have known of it “must be undertaken in light of the
specific context of the case, not as a broad general
proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(citation and quotation marks omitted). In order for the
official to lose the protections of qualified immunity,
“existing precedent must have placed the statutory or
constitutional question beyond debate.” Al-Kidd, 131 S. Ct. at
2083.
Because a government official may only be held
personally liable under Bivens “for his or her own
misconduct,” the plaintiff must allege that “each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009).
Accordingly, in order to overcome the defense of
qualified immunity here, George must allege facts showing
that the conduct of each individual federal defendant (1)
“violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged
conduct.” Al-Kidd, 131 S. Ct. at 2080. However, we need not
undertake our inquiry in that order. Pearson v. Callahan, 555
U.S. 223, 236 (2009).
V. DISCUSSION
The individual Federal Officials make a number of
arguments in support of their appeal. Each is discussed
separately below.
13
A. George’s factual allegations do not establish that any
individual
Federal Official violated his clearly established rights
under the Fourth Amendment.
Before addressing the merits of this argument, it is first
necessary to consider airport security screenings in context
with the Fourth Amendment’s limitations on governmental
searches. The Fourth Amendment provides:
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.
U.S. Const. Amend. IV.
In United States v. Hartwell, 436 F.3d 174 (3d Cir.
2006), we held that a warrantless airport security screening of
a passenger and his baggage without individualized suspicion
is tantamount to a permissible administrative search under the
Fourth Amendment. There, Hartwell arrived at the
Philadelphia International Airport intending to catch a flight
to Phoenix, Arizona. He placed his carry-on luggage on the
conveyor belt to be x-rayed, and approached a metal detector.
His luggage was scanned without incident, but he set off the
magnetometer when he walked through it. A TSA Officer
took Hartwell aside after he passed through the metal detector
a second time. The TSA Officer then used a magnetic wand
to determine why Hartwell had triggered the metal detector.
The wand revealed a solid object in Hartwell’s pocket and the
TSA Officer asked to see it. Ultimately, the TSA Officers
discovered that the object was crack cocaine, and Hartwell
was arrested by the police.
14
In his appeal following a conditional guilty plea,11
Hartwell argued that the drugs should have been suppressed
because the search violated the Fourth Amendment. We
disagreed and held that the search “was permissible under the
administrative search doctrine.” 436 F.3d at 177 (quoting
United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005)
(“Airport screenings of passengers and their baggage
constitute administrative searches and are subject to the
limitations of the Fourth Amendment.”).
We began our analysis in Hartwell by observing that
the Fourth Amendment “limits government action in two
ways. First, it requires that searches and seizures be
reasonable, and, second, it states that when a warrant is
required – in circumstances that are not explicitly defined by
the text – it must have certain characteristics.” Id. (citation
omitted). We then noted that the Supreme Court has “read
the Amendment’s twin commands in tandem, holding that
when people have a reasonable expectation of privacy in their
persons or effects, all searches and seizures must be
supported by a warrant, unless they fall into one of the
exceptions to that requirement.” Id. (citation omitted). The
“first step in Fourth Amendment analysis is [identifying]
whether a search or seizure has taken place.” Id. However,
the government conceded that “an airport pre-boarding
security screening is a search,” id. It was therefore not
disputed that Hartwell had “experienced a single, warrantless
search, which was initiated without individualized suspicion”
and “was not conducted pursuant to a warrant.” Id. at 178.
Thus, in order to survive a Fourth Amendment challenge, “the
search must [have been] grounded in an exception to the
warrant requirement.” Id.
In concluding that “Hartwell’s search at the airport
check-point was justified by the administrative search
doctrine,” id., we first explained that:
A search or seizure is ordinarily
unreasonable in the absence of
individualized suspicion of
wrongdoing. While suspicion is
11
Hartwell reserved his right to appeal the denial of his
suppression motion in his plea agreement.
15
not an “irreducible” component of
reasonableness, the Supreme
Court has recognized only limited
circumstances in which the usual
rule does not apply. These
circumstances typically involve
administrative searches of
“closely regulated” businesses,
other so-called “special needs”
cases, and suspicionless
“checkpoint” searches.
Id. (citation, brackets, footnotes and certain internal quotation
marks omitted).12 We then noted that:
Suspicionless checkpoint searches
are permissible under the Fourth
Amendment when a court finds a
favorable balance between “the
gravity of the public concerns
served by the seizure, the degree
to which the seizure advances the
public interest, and the severity of
the interference with individual
liberty.” Illinois v. Lidster, 540
U.S. 419, 427 (2004) (quoting
Brown v. Texas, 443 U.S. 47, 51
(1979)).
Id. at 178-789 (footnote omitted).
Turning to the specifics of Hartwell’s search, we held
that “the airport checkpoint passes the Brown [v. Texas,
supra] test.” Id. at 179. In doing so we noted the following
considerations. First, “there can be no doubt that preventing
terrorist attacks on airplanes is of paramount importance.” Id.
(citations omitted). Second, “airport checkpoints also advance
the public interest” because “absent a search, there is no
effective means of detecting which airline passengers are
12
In Hartwell, we noted that the Supreme Court has not
directly addressed the issue of airport administrative searches,
but that it has discussed them in dicta in two cases. 436 F.3d
at 178 n.5 (citing cases).
16
reasonably likely to hijack an airplane.” Id. at 179-80
(citations and brackets omitted). Third, “the procedures
involved in Hartwell’s search were minimally invasive.” Id.
at 180 (footnote omitted).
They were well-tailored to protect
personal privacy, escalating in
invasiveness only after a lower
level of screening disclosed a
reason to conduct a more probing
search. The search began when
Hartwell simply passed through a
magnetometer and had his bag x-
rayed, two screenings that
involved no physical touching.
Only after Hartwell set off the
metal detector was he screened
with a wand – yet another less
intrusive substitute for a physical
pat-down. And only after the
wand detected something solid on
his person, and after repeated
requests that he produce the item,
did the TSA agents (according to
Hartwell) reach into his pocket.
In addition to being tailored to
protect personal privacy, other
factors make airport screening
procedures minimally intrusive in
comparison to other kinds of
searches. Since every passenger
is subjected to a search, there is
virtually no stigma attached to
being subjected to a search at a
known, designated airport search
point. Moreover, the possibility
for abuse is minimized by the
public nature of the search.
Unlike searches conducted on
dark and lonely streets at night
where often the officer and the
subject are the only witnesses,
these searches are made under
17
supervision and not far from the
scrutiny of the traveling public.
And the airlines themselves have
a strong interest in protecting
passengers from unnecessary
annoyance and harassment.
Id. (citations and internal quotation marks omitted). “[T]he
entire procedure is rendered less offensive – if not less
intrusive – because air passengers are on notice that they will
be searched.” Id.
Air passengers choose to fly, and
screening procedures of this kind
have existed in this country since
at least 1974. The events of
September 11, 2001, have only
increased their prominence in the
public’s consciousness. It is
inconceivable that Hartwell was
unaware that he had to be
searched before he could board a
plane. Indeed, he admitted that he
had previously been searched
before flying.
Id. at 181 (citations omitted).
Based on these considerations, we concluded:
Hartwell’s search does not offend
the Fourth Amendment even
though it was initiated without
individualized suspicion and was
conducted without a warrant. It is
permissible under the
administrative search doctrine
because the State has an
overwhelming interest in
preserving air travel safety, and
the procedure is tailored to
advance that interest while
proving to be only minimally
invasive. . . .
Id. (footnote omitted).
18
Because we held that a search pursuant to routine
airport screening was constitutionally permissible under the
administrative search doctrine, we found it unnecessary to
address issues concerning consent-based rationales for airport
searches. 436 F.3d at 181 n.11. However, we note that the
Court of Appeals for the Ninth Circuit, has held that the
constitutionality of an airport screening search does not
depend on the passenger’s purported consent. In United
States v. Aukai, 497 F.3d 955 (9th Cir. 2007), the court held:
The constitutionality of an airport
screening search, however, does
not depend on consent, and
requiring that a potential
passenger be allowed to revoke
consent to an ongoing airport
security search makes little sense
in a post-9/11 world. Such a rule
would afford terrorists multiple
opportunities to attempt to
penetrate airport security by
electing not to fly on the cusp of
detection until a vulnerable portal
is found. This rule would also
allow terrorists a low-cost method
of detecting systematic
vulnerabilities in airport security,
knowledge that would be
extremely valuable in planning
future attacks. Likewise, given
that consent is not required, it
makes little sense to predicate the
reasonableness of an
administrative airport screening
search on an irrevocable implied
consent theory. Rather, where an
airport screening search is
otherwise reasonable and
conducted pursuant to statutory
authority . . . all that is required is
the passenger’s election to attempt
entry into the secured area. Under
current TSA regulations and
19
procedures, that election occurs
when a prospective passenger
walks through the magnetometer
or places items on the conveyor
belt of the x-ray machine.
497 F.3d at 961 (citations and footnote omitted).
With this background as our analytical compass, we
examine the merits of the individual Federal Officials’ Fourth
Amendment argument.
1. George’s factual allegations do not establish a
Fourth Amendment violation.
(a). The TSA Officials – John Does 1-2 and
Jane Doe 3.
The TSA Officials – John Does 1 and 2, and Jane Doe
3 – submit that George’s factual allegations do not establish
that they violated a Fourth Amendment right. We agree.
George alleges that the two TSA screening Officials,
John Does 1 and 2, inspected his Arabic-English flashcards,
searched his carry-on bag, swabbed his cell phone for
explosives, and that one of them contacted their supervisor
for assistance. John Does 1 and 2 kept him in the side
screening area for 30 minutes. Am. Compl. ¶¶ 23, 27-30.
George was not handcuffed while detained in the screening
area. Then, the TSA Supervisor, Jane Doe 3, arrived, and was
informed about the Arabic-English flashcards. She responded
by further questioning George for about 15 minutes.
Amended Compl. ¶¶ 33-40. During that questioning, while
Jane Doe 3 was in mid-sentence, a Philadelphia Police
Officer, William Rehiel, arrived at the scene, handcuffed
George and took him to the Airport Police Station. Amended
Compl. ¶¶ 42-45.
In his Memorandum in Opposition to the United
States’ Motion to dismiss,13 George conceded that the search
13
As we have noted, see n.8, supra, George asserted claims
against the United States under the Federal Tort Claims Act.
20
conducted by the two TSA screening Officials who searched
his person and baggage “began properly” and that they acted
lawfully in “conduct[ing] a thorough search of his carry-on
items for weapons and explosives.” Plaintiff’s Memorandum
in Opposition to United States’ Motion to Dismiss at 2-3.
However, in the district court George argued that once this
search failed to discover any explosives or other hazardous
weapons, John Does 1 and 2 had to release him and their
failure to do so, and to instead contact their supervisor (Jane
Doe 3), violated his Fourth Amendment rights.
The district court agreed, opining that the TSA
screeners’ authority to search and question George “appears
to have been exhausted after the first 10-15 minutes, once
plaintiff was found to possess nothing that would endanger
airline safety.” JA 84. The district court then held:
[A]n investigatory detention and arrest are
constitutional only if supported by reasonable
suspicion of criminal activity or probable cause
of a specific crime. Here, the amended
complaint does not provide a reasonable
inference of individualized suspicion or
probable cause for the prolonged detention and
arrest of plaintiff. . . . If the facts alleged are
true, the TSA’s seizure of plaintiff amounted to
an investigatory detention and arrest of plaintiff.
JA 84-85 (citing Terry v. Ohio, 392 U.S. 1 (1968) and
Orsatti v. N.J. State Police, 71 F.3d 480 (3d Cir. 1995). We
disagree.
In Terry, the Supreme Court announced the general
standards for a limited search pursuant to a brief investigative
detention, and in Orsatti, we recited the general standards
governing an arrest. Although neither case is definitive in the
context of the Fourth Amendment parameters within which
TSA officials can detain, search and question passengers at an
airport security checkpoint, we did examine those limitations
in United States v. Hartwell, supra.
However, as also noted, those claims are not before us in this
appeal.
21
As discussed above, we there held that airport security
screening of a passenger and his/her baggage without a
warrant or individualized suspicion is permissible under the
Fourth Amendment as an administrative search. In Hartwell,
we upheld an airport screening search that involved an
escalating level of scrutiny and intrusion where “a lower level
of scrutiny disclosed a reason to conduct a more probing
search.” 436 F.3d at 180.
The Court of Appeals for the Ninth Circuit has also
upheld an airport security search involving increased levels of
screening. In United States v. Aukai, supra, Aukai arrived at
the Honolulu International Airport to take a flight from
Honolulu, Hawaii, to Kona, Hawaii. He checked in at the
ticket counter but did not produce a government-issued ID.
Accordingly, the ticket agent wrote “No ID” on Aukai’s
boarding pass.
Aukai then went to the security checkpoint, where
signs advised prospective passengers that they and their
baggage were subject to search. He entered the security
checkpoint, placed his shoes and other items into a plastic bin
and voluntarily walked through the magnetometer. The
magnetometer did not signal the presence of metal as he
walked through it, and nothing in his personal belongings
triggered an alarm. After he walked through the
magnetometer, Aukai presented his boarding pass to a TSA
officer.
Pursuant to TSA procedures, a passenger who presents
a boarding pass with “No ID” written on it is subject to
secondary screening even though s/he has passed through the
initial screening without triggering an alarm or otherwise
raising suspicion. Pursuant to that policy, a TSA official
passed a hand-held magnetometer or wand around Aukai’s
body and an item in his pocket triggered an alarm. Aukai
repeatedly refused to produce the item and tried to leave.
When a TSA supervisor told Aukai to empty his pocket, he
again refused. The TSA supervisor then touched the outside
of Aukai’s pocket and concluded that Aukai had something in
his pocket. Aukai eventually removed an object wrapped in
tissue paper from his pocket and placed it in the tray in front
of him. Fearing that the item may be a weapon, the TSA
22
supervisor summoned a nearby police officer. The TSA
supervisor then unwrapped the object and discovered a glass
pipe used to smoke methamphetamine. The police officer
arrested Aukai and, after a search, discovered several bags of
methamphetamine. Aukai was eventually taken into federal
custody and admitted to illegal possession of
methamphetamine after being advised of his Miranda rights.
Aukai was indicted for knowingly and intentionally
possessing, with intent to distribute, 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a) and
841(b)(1)(A)(viii). He eventually entered a conditional guilty
plea and appealed the denial of his motion to suppress the
evidence that was seized pursuant to the airport search and his
subsequent statement.
On appeal, the Ninth Circuit noted that it had
previously held that airport screening searches are
constitutionally permissible administrative searches under the
Fourth Amendment. Aukai, 497 F.3d at 959-60 (citing cases).
It then held, citing to our decision in Hartwell, that the search
procedures to which Aukai was subjected were
constitutionally permissible because they were “minimally
intrusive.” Id. at 962 (citing Hartwell, 436 F.3d at 180). The
court of appeals also concluded that the “duration of the
detention associated with his airport screening” – eighteen
minutes – was “reasonable.” Id. at 962-963. For all of these
reasons, the court held that “the airport screening search of
Aukai was a constitutionally reasonable administrative
search.” Id. at 963.
We believe that the conduct of the TSA Officials here
was also consistent with Fourth Amendment limitations. It is
not disputed that the initial airport screening to which George
was subjected by the TSA Officials was a constitutionally
permissible administrative search under the Fourth
Amendment, even though it was initiated without
individualized suspicion and was conducted without a
warrant. It was not until after the TSA Officials discovered
that he was carrying some handwritten Arabic-English
flashcards containing such words as “bomb,” “terrorist,”
“explosion,” “an attack,” “battle,” “to kill,” “to target,” “to
kidnap,” and “to wound,” that George was taken by John
23
Does 1 and 2 to another screening area where he was
eventually questioned by Jane Doe 3. However, at that point,
the Officials had a justifiable suspicion that permitted further
investigation as long as the brief detention required to
conduct that investigation was reasonable. See Terry, 392
U.S. at 21.14
We caution, however, that the detention at the hands of
these TSA Officials is at the outer boundary of the Fourth
Amendment. Once TSA Officials were satisfied that George
was not armed or carrying explosives, much of the concern
that justified his detention dissipated. However, it did not
totally vanish or suggest that further inquiry was not
warranted. Suspicion remained, and that suspicion was
objectively reasonable given the realities and perils of air
passenger safety. The TSA Officials still were confronted
with an individual who was carrying Arabic-English
flashcards bearing such words as: “bomb,” “terrorist,” “to
kill,” etc. In a world where air passenger safety must contend
with such nuanced threats as attempts to convert underwear
into bombs and shoes into incendiary devices, we think that
the brief detention that followed the initial administrative
search of George was reasonable.
Nevertheless, it is important to note that harboring
views that appear to be hostile to the United States
government or its foreign policy is most assuredly not, by
itself, grounds for detaining someone and investigating them
pursuant to the administrative search doctrine or an
investigative seizure under Terry. However, it is simply not
reasonable to require TSA Officials to turn a blind eye to
someone trying to board an airplane carrying Arabic-English
flashcards with words such as “bomb,” “to kill,” etc. Rather,
basic common sense would allow those Officials to take
reasonable and minimally intrusive steps to inquire into the
potential passenger’s motivations.
14
In Terry, the Court reasoned: “there is no ready test for
determining reasonableness other than by balancing the need
to search [or seize] against the invasion which the search [or
seizure entails]” (internal quotation marks omitted, brackets
in original).
24
Thus, we cannot say that it was unreasonable for John
Does 1 and 2 to briefly continue George’s seizure to consult
with a supervisor. As noted above, 15 minutes after the
supervisor (Jane Doe 3) arrived, and while she was in mid-
sentence of a conversation with George, Officer Rehiel of the
Philadelphia Police Department arrived, placed George in
handcuffs and took him away. At that point, the rather brief
detention that arose from the initial administrative search
ended. As we explain below, despite George’s failed attempt
at establishing an agency relationship, none of the TSA
Officials played any further role in the protracted seizure that
followed.
Thus, the actions of the TSA Officials corresponded to
the level of concern raised by the flashcards.15 As we have
already observed, an airport security search may become
more invasive when “a lower level of screening disclose[s] a
reason to conduct a more probing search.” Hartwell, 463
F.3d at 180. Indeed, we think that these TSA Officials would
have been derelict in their duties had they simply ignored the
flashcards.16
15
Admittedly, some of the Arabic-English flashcards also
contained harmless, everyday words. However, we do not
think that the presence of the flashcards containing
innocuous words mitigates the presence of the cards
containing threatening and violent words. We appreciate that
George was studying Arabic and claimed to have these items
to advance his study of Arabic language, culture stories in
Arabic media and literature. The TSA Officials did not have
to accept that explanation and allow him to board an airplane
without any further inquiry. Rather, it was reasonable for
them to make additional inquiries and to consult with a
supervisor.
16
We reiterate however, that this does not mean that John
Does 1 and 2 could have subjected George to a lengthy
detention based merely on the suspicions that arose from the
words on the flashcards. Nevertheless, we cannot hold that
continuing to detain George for approximately 30 minutes
under the circumstances here was so unreasonable that it
violated the limitations that must surround administrative
searches.
25
Moreover, George’s allegation that “he was not free to
leave and believed that he was not free to leave” the screening
area during the interrogation, Amended Compl. ¶ 41, does not
establish that TSA Officials violated the Fourth Amendment.
Indeed, in Hartwell, we flatly rejected the contention that a
passenger has a right to leave an airport security checkpoint
once the TSA officials increase the level of their screening
scrutiny. We wrote:
Hartwell argues that once the
TSA agents identified the object
in his pocket and he refused to
reveal it, he should have had the
right to leave rather than empty
his pockets. We reject this theory.
. . . [A] right to leave once
screening procedures begin would
constitute a one-way street for the
benefit of a party planning airport
mischief, and would encourage
airline terrorism by providing a
secure exit where detection was
threatened.
436 F.3d at 181 n.12 (citations and internal quotation marks
omitted). Airport screening is obviously informed by unique
concerns and risks. Accordingly, we are reluctant to attach the
same weight to the inability to leave that that may have in a
different context.
We therefore do not agree with George’s contention
that once John Doe 1 and John Doe 2 completed their
administrative search for weapons and explosives (within ten
to fifteen minutes, Amended Compl. ¶¶ 27-28), without
finding weapons or explosives, they had reached the
parameters of a legitimate administrative search.
Under the circumstances alleged here, the Fourth
Amendment was not violated by continuing this investigation
even though John Does 1 and 2 found no weapons or
explosives on George’s person or luggage. Items other than
weapons or explosives can give a TSA Screening Official
reason to increase the level of scrutiny when circumstances
26
suggest that it is reasonable to conduct a more probing
investigation. This does not, of course, give TSA screeners
license to detain and inquire based on a mere hunch, and we
certainly do not suggest that TSA screeners have a license to
detain purportedly suspicious travelers for a protracted
amount time. But that is not what happened here.17
Given the circumstances here, it was reasonable for the
TSA Screening Officials to increase the level of scrutiny by
briefly detaining George so that he could be further
questioned in an effort to ascertain whether he posed a risk to
passengers or airplane security. After the justifiable
administrative search conducted by the TSA Officials,
George was detained by Philadelphia Police who are not part
of this appeal.
For all of the above reasons, we find that George has
failed to allege facts showing that the TSA Screening
Officials – John Does 1 and 2 and Jane Doe 3 – violated his
Fourth Amendment rights. We therefore need not proceed to
the second step of the qualified immunity analysis to
determine whether that right was clearly established at the
time of the challenged conduct. See Scott v. Harris, 550 U.S.
372, 377 (2007).
Accordingly, the TSA Screening Officials are entitled
to qualified immunity on George’s Fourth Amendment claim,
and we will vacate the district court’s order denying their
motion to dismiss and remand with directions to grant the
motion.
(b). FBI Agents assigned to the JTTF – John Does 4 and 5.
The two FBI Agents assigned to the JTTF also argue
that the factual allegations in the amended complaint do not
establish that they violated a Fourth Amendment right. We
agree. The essence of the allegations regarding the JTTF
Agents is that they went to the Airport Police Station at the
request of the Philadelphia Police in order to question
17
We similarly caution against detaining someone solely
because of their nationality and/or choice of reading material.
However, we reiterate that that is not what happened here.
27
George, searched George’s carry-on luggage, and questioned
him for about thirty minutes before concluding that he was
not a security threat and allowing him to leave. Amended
Compl. ¶¶ 63-73. The district court did not explain how or
why these allegations stated a violation of the Fourth
Amendment.
We are unable to find any authority that would
support a finding that Federal Officials’ response to a call for
assistance by local police and their subsequent questioning of
the subject of that call for 30 minutes constitutes a Fourth
Amendment violation. Moreover, George has not provided
us with any authority to support his contention that his
allegations are sufficient to support a claim of a Fourth
Amendment violation against the JTTF Officials.
Accordingly, we again need not proceed to the second
step of the qualified immunity analysis. See Scott, 550 U.S. at
377. We hold that the JTTF Agents are entitled to qualified
immunity and we will therefore vacate the district court’s
order denying their motion to dismiss and remand with
directions to grant the motion to dismiss.
As we have noted, George also asserted a First
Amendment claim against the individual Federal Officials.
However, before beginning a discussion of that claim, it is
necessary to discuss the basis for George’s contention that the
Federal Officials violated the Fourth Amendment by leaving
him “locked in a jail cell for four hours (much of the time in
handcuffs) without further investigation,” that they were
“directly involved in detaining [him] and instructing the local
police to prolong his seizure,” and that his “seizure escalated
from an investigatory stop to an arrest when the local police,
acting on the TSA’s request, handcuffed [him], led him to the
airport jail, and locked him in a cell.” George is
apparently contending that the individual Federal Officials are
somehow liable for his purportedly unconstitutional arrest and
prolonged detention by Philadelphia Police Officers. George
bases that contention on his assertion that the Federal
Officials had either legal or functional control over the
28
decisions and actions of the Philadelphia Police Officers.18
The contention is meritless.
The only allegations in George’s amended complaint
to support this rather attenuated agency theory that the
Philadelphia Police Officers were under the legal or
functional control of the TSA Screening Officials are as
follows:
 John Doe 1 and John Doe 2 were
Transportation Security Officers
of the [TSA] – commonly known
as “airport screeners” – at the time
of the events giving rise to this
action. Each was responsible for
detaining Mr. George for 30
minutes at the screening area, and,
upon information and belief, they
summoned the TSA Supervisor
known here as Jane Doe 3, as well
as the Philadelphia Police
Department, for further
interrogation, detention and arrest
of Mr. George. . . . Amended
Compl. ¶ 5
 Jane Doe 3 was an official of the
[TSA] at the time of the events
giving rise to this action. Upon
information and belief, Jane Doe
3 held a position that involved
supervising airport screeners,
including Defendants John Does 1
and 2. Jane Doe interrogated Mr.
George in a hostile and aggressive
manner, continued his detention,
and turned him over to Defendant
18
As noted, see n.8, supra, George also asserted claims
against the Philadelphia Police Officers pursuant to 42 U.S.C.
§ 1983. However, those claims are not before us in this
appeal, and we take no position on the propriety of the
Philadelphia Police Officers’ conduct in this case.
29
Rehiel to be handcuffed, arrested,
jailed, and further interrogated. . .
. Amended Compl. ¶ 6.
The amended complaint further alleges that while
George was being questioned by Doe 3, Officer Rehiel,
arrived on the scene, handcuffed George and took him to the
Airport Police Station without speaking to any of the Federal
Officials. Amended Compl. ¶¶ 42-45. Finally, the amended
complaint alleges that George’s “detention, arrest,
unnecessary and extended restraint, incarceration, and
interrogation . . . by the Defendants, as described in [the
preceding paragraphs], constituted an unreasonable search
and seizure in violation of clearly established rights under the
Fourth . . . Amendment[] to the United States Constitution.”
Amended Compl. ¶ 81.
As we have noted, in reviewing a denial of qualified
immunity pursuant to a denial of a motion under Rule
12(b)(6), we must accept plaintiff’s allegations as true and
draw all inferences in plaintiff’s favor. Torisky, 446 F.3d at
442. However, “a pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Iqbal, 556 U.S. at 678 (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
at 678 (citing Twombly, at 557). “[T]he tenet that a court
must accept as true all the allegations contained in a
complaint is inapplicable to legal conclusions.” Id.
George’s allegations are an attempt to construct a
theory that the Philadelphia Police Officers acted under the
legal or functional control of the TSA Screening Officials.
This purported agency relationship is based entirely on
George’s allegations that Does 1 and 2 “summoned . . . the
Philadelphia Police Department, for [his] further
interrogation, detention and arrest,” and that Doe 3 “turned
him over to [Police Officer Rehiel] to be handcuffed, arrested,
jailed and further interrogated.” George attempts to further
weave a tapestry of inferences culminating in a conclusion of
agency by contending that an arrest is the inevitable result of
summoning Police and turning someone over to them.
30
George cites the majority opinion in Tobey v. Jones,
706 F.3d 379 (4th Cir. 2013), to support that contention.
There, Tobey was scheduled to fly from Richmond, Virginia
to Wisconsin to attend his grandfather’s funeral. He waited
until there was a short line at the TSA screening checkpoint
and then presented his boarding pass and ID to the TSA pre-
screening official. Tobey also placed his belt, shoes,
sweatshirt and other carry-on items on the conveyor belt.
However, TSA Official Smith diverted him from the standard
screening device to the Advanced Imaging Technology
(“AIT”) scanning unit for enhanced screening.
Anticipating that he might be subjected to enhanced
screening, Tobey had written the text of the Fourth
Amendment on his chest because he believed that AIT
scanning was unconstitutional.19 Before going through the
AIT unit, Tobey placed his sweatpants and t-shirt on the
conveyor belt, leaving him dressed only in running shorts and
socks and revealing the text of the Fourth Amendment written
on his chest. Smith, the TSA Official, told Tobey that he did
not need to remove his clothes. Tobey responded that he
wanted to express his belief that the TSA’s advanced
screening procedures violated the Fourth Amendment.
Thereupon, Smith radioed for assistance. Smith’s
supervisor, Jones, told Smith to order Tobey to remain in
front of the AIT unit. Jones and an unknown TSA Official
then asked the Richmond International Airport (“RIA”)
Police for assistance. Tobey never refused to undergo the
AIT screening and never declined to comply with any TSA
request.
RIA Police Officers arrived on the scene and
immediately handcuffed and arrested Tobey. None of the
TSA Officials informed the RIA Police about what had
occurred at the screening station and the RIA police never
asked. A Police Officer escorted Tobey to a side area and
told him he was under arrest for creating a public disturbance.
An unknown TSA Official searched Tobey’s belongings and
19
This does not appear to have been particularly thoughtful,
and it surely was not the least bit effective, but it certainly
was creative.
31
removed unidentified items. A Police Officer then collected
Tobey’s belongings with the assistance of TSA Officials.
The RIA Police then took Tobey to the RIA Police
Station where police officers questioned him and threatened
him with various criminal sanctions. Tobey was eventually
charged with the state crime of disorderly conduct in a public
place. The police officers later released Tobey after
consulting with an Air Marshal from the Federal Air
Marshal’s Joint Terrorism Task Force, and he boarded the
plane without further incident after being held for over an
hour. The county attorney subsequently dropped state
criminal charges.
Tobey filed a Bivens’ action against TSA Officials
Smith and Jones and a § 1983 action against the RIA Police
Officers alleging violations of his Fourth and Fourteenth
Amendment rights, his First and Fourteenth Amendments
rights, and his right to Equal Protection of the law under the
Fourteenth Amendment. Thereafter, Smith and Jones, the
TSA Officials, moved to dismiss all of the claims, asserting
qualified immunity. The district court granted the TSA
Officials’ motion to dismiss the Fourth Amendment and
Equal Protection claims. However, it did not dismiss
Tobey’s First Amendment retaliation claim against those
officials. The Court of Appeals for the Fourth Circuit
explained the district court’s reasoning as follows:
The court held that because there
is a question of whether the TSA
Agents in fact radioed for
assistance because of the message
Plaintiff sought to convey or
because of some other reasonable
restriction on First Amendment
activity in the security area,
dismissal [of the First
Amendment claims] on the basis
of qualified immunity would be
improper.
706 F.3d at 385 (citation, internal quotation marks and
brackets omitted).
32
The TSA Officials argued that Tobey had not alleged a
facially valid First Amendment claim and that, even if he had,
he had not alleged a violation of a clearly established
constitutional right and so they were entitled to qualified
immunity.
For our purposes, it is important to note that the
majority in Tobey concluded that before it could determine if
Tobey had alleged a plausible First Amendment violation, it
had to “correct an erroneous conclusion reached by the
district court.” 706 F.3d at 385. The majority concluded that
the district court had erred “in concluding that Mr. Tobey
failed to plead [that the TSA Officials] in some way caused
his arrest.” Id. (citation omitted) (brackets added). The
district court had concluded
that Mr. Tobey’s complaint is
devoid of any facts suggesting
that the [TSA Officials] – neither
of whom are law enforcement
officers with the power to arrest –
made any such assertion or
otherwise indicated to the [RIA]
police that [Tobey] should be
arrested.
Id. (citation and internal quotation marks omitted) (brackets
added).20
Correcting what it believed to have been error, the
majority stated: “[f]ortunately for Mr. Tobey, he was not
required to state these precise magical words in order to
plausibly plead that [the TSA Officials] caused his arrest.”
Id. (citing Twombly, 550 U.S. at 555). The majority then
concluded:
It is an undoubtedly natural
consequence of reporting a person
20
TSA Screening Officials here remind us that they lack the
authority to make an arrest. See TSA Management Directive
1100.88-1(A) at 2. available at
http://www.tsa.gov/assets/pdf/foia/TSA_MD_1100_88_1_Fin
al_0070511.pdf (omitting security screening screeners from
categories of TSA employees authorized to make arrests).
33
to the police that the person will
be arrested; especially in the
scenario we have here, where
TSA and [RIA] police act in close
concert. So long as Mr. Tobey’s
complaint rendered it plausible
that [the TSA Officials] helped
effectuate his arrest, the district
court should have factored the
arrest into its decision as to
whether Mr. Tobey alleged
plausible Bivens claims against
[the TSA Officials].
Id. at 386 (brackets added). Later, the majority opined: “It is
reasonable to infer that whatever [the TSA Officials] told
[RIA] police caused Mr. Tobey’s arrest.” Id. (brackets
added).
We disagree with the Tobey majority’s conclusion that
“[i]t is an undoubtedly natural consequence of reporting a
person to the police that the person will be arrested.” That
conclusion does not appear to have been based on anything in
the record. Rather, it seems to arise from the majority’s
personal assumptions and inferences. However, absent
something on the record to the contrary, it seems just as likely
that police officers who are summoned by TSA Officials
would use their own independent discretion to determine
whether there are sufficient grounds to take someone into
custody.
Traditionally, law enforcement officers have the
discretion in deciding whether to make an arrest. Burella v.
City of Philadelphia, 501 F.3d 134, 145 (3d Cir. 2007),
(citing Town of Castle Rock, Colorado v. Gonzales, 545 U.S.
748, 761 (2005)). Police officers clearly know that they need
probable cause to arrest someone and we can assume that
they know they face personal liability if they arrest someone
without probable cause. See 42 U.S.C. § 1983; see also, e.g.,
Pritzker v. City of Hudson, 26 F. Supp. 2d 433, 443 (N.D.
N.Y. 1998) (“Police officers are presumed to know the law
governing their conduct. Reasonable police officers would
know that it is a violation of well-settled constitutional rights
34
to arrest or prosecute someone absent probable cause.”)
(citing Catone v. Spielman, 149 F.3d 156, 161 (2d Cir.
1998)).
Moreover, there is a distinct and constitutionally
sacrosanct demarcation between the intrusion that is inherent
in an investigative detention and the kind of detention that is
sufficiently intrusive to rise to the level of an arrest. For
example, a Terry stop is an intermediate level of intrusion
allowing police to conduct a limited investigation into the
possibility of criminal activity based on reasonable suspicion
“even though there is no probable cause to make an arrest.”
Adams v. Williams, 407 U.S. 143, 145-46 ((1972).
Accordingly, without more than appears on this record, we
reject George’s argument that the Philadelphia Police Officers
were under either the legal or functional control of the TSA
Screening Officials.
Furthermore, George’s allegations that the TSA
Officials had either legal or functional control of the
Philadelphia Police Officers cannot survive the pleading
requirements established by the Court’s decision in Iqbal.
Iqbal was a Pakistani Muslim who, after the 9/11 terrorist
attacks, was arrested in the United States on criminal charges
and detained by Federal officials. He claimed that he was
deprived of a number of constitutional protections while in
Federal custody and sued a number of Federal officials,
including the Attorney General and the Director of the FB1.
The Attorney General and the Director of the FBI were the
only Federal officials before the Court.
In his complaint, Iqbal alleged, inter alia, that the
Attorney General and the Director of the FBI “‘knew of,
condoned, and willfully and maliciously agreed to subject
[him]’ to harsh conditions of confinement ‘as a matter of
policy, solely on account of [his] religion, race, and/or
national origin and for no legitimate penological interest,’”
that “Ashcroft was the ‘principal architect’ of this invidious
policy,” and that the Director of the FBI “was ‘instrumental’
in adopting and executing it.” 556 U.S. at 680-81 (record
citations omitted). The Attorney General and the Director of
the FBI moved to dismiss, asserting that they were entitled to
qualified immunity. The district court denied the motion and
35
the Court of Appeals for the Second Circuit affirmed. The
Supreme Court granted certiorari and reversed.
After reviewing its prior decision in Twombly, supra,
and analyzing the pleading standards contained in
Fed.R.Civ.P. 8, the Court held that “[t]hese bare assertions . .
. amount to nothing more than a formulaic recitation of the
elements of a constitutional discrimination claim” and “[a]s
such are conclusory and not entitled to be assumed true.” Id.
at 681 (citations and internal quotation marks omitted).
Here, the relevant allegations in George’s amended
complaint are simply conclusory allegations of a Fourth
Amendment violation. 21 After Iqbal, we can no longer
assume the truth of those averments in determining whether
the complaint survives a Rule 12(b)(6) challenge.
Accordingly, we reject George’s contention that the
TSA Screening Officials are liable for what he alleges was his
unconstitutional arrest and detention by the Philadelphia
Police Officers. That contention, as we have explained, is
based solely on his conclusory assertions that TSA Officials
had either the legal or functional control over the decisions
and actions of the Philadelphia Police Officers.
We also reject George’s claim that allegations about
the two JTTF Agents show that they participated in his
allegedly unlawful seizure, arrest and detention. Those
allegations are summarized above.22 The JTTF Agents
simply responded to a call from the Philadelphia Police,
questioned George for about thirty minutes, determined that
he posed no security threat, and told him he was free to leave.
The JTTF Agents were not at all involved in George’s
allegedly unconstitutional seizure, arrest and detention.
Indeed, the two JTTF Agents were responsible for George’s
release from the alleged unconstitutional detention. Even
though the JTTF agents were called to investigate a potential
terrorist, and despite the fact that they knew George had been
detained for over four hours because of suspicions raised by
21
See p. 29-30, supra.
22
See p. 27, supra.
36
his Arabic flash cards, the JTTF agents were able to
determine that he posed no threat and allowed him to go on
his way after spending only 30 minutes with him.
B. George’s factual allegations do not establish that any
individual Federal official violated his clearly established
rights under the First Amendment.
As noted, in his amended complaint, George alleged
that the Federal Officials searched and questioned him in
retaliation for his possession of the Arabic-English flashcards
and a political book critical of American policy in the Middle
East in violation of his First Amendment Rights.23 As also
noted, the district court, in response to the Federal Officials
motion for clarification, held that the amended complaint
plausibly set forth a First Amendment retaliation claim.
In this portion of their appeal, the Federal Officials
contend that the allegations in the amended complaint do not
establish that they retaliated against George for his exercise of
his First Amendment rights.24
23
George’s amended complaint also alleges that the Federal
Officials arrested and incarcerated him in violation of his
First Amendment rights. However, we have already
determined that the allegations in the amended complaint are
insufficient to show that the Federal Officials somehow
participated in, or were somehow responsible for, what
George alleges was his unlawful seizure, arrest and detention
by the Philadelphia Police.
24
We are mindful of the fact that the Supreme Court has
twice in recent years noted that it has not extended Bivens
implied causes of action to First Amendment claims. See
Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2093 n.4
(2012) (“We have never held that Bivens extends to First
Amendment claims.”), and Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009) (“Because implied causes of action are disfavored,
the Court has been reluctant to extend Bivens liability to any
new context or new category of defendants. . . . Indeed, we
have declined to extend Bivens to a claim sounding in the
First Amendment. Petitioners do not press this argument,
however, so we assume, without deciding, that respondent’s
37
In order to establish a First Amendment retaliation
claim, a plaintiff “must prove (1) that he engaged in
constitutionally-protected activity; (2) that the government
responded with retaliation; and (3) that the protected activity
caused the retaliation.” Eichenlaub v. Township of Indiana,
First Amendment claim is actionable under Bivens.”).
Nonetheless, despite the cautionary notes sounded by the
Court, it does appear that the Court has held that there is a
Bivens cause of action for First Amendment retaliation
claims. In Hartman v. Moore, 547 U.S. 250 (2006), the Court
wrote:
Official reprisal for protected
speech offends the Constitution
because it threatens to inhibit
exercise of the protected right,
and the law is settled that as a
general matter the First
Amendment prohibits government
officials from subjecting an
individual to retaliatory actions. . .
for speaking out. Some official
actions adverse to such a speaker
might well be unexceptionable if
taken on other grounds, but when
nonretaliatory grounds are in fact
insufficient to provoke the
adverse consequences, we have
held that retaliation is subject to
recovery as the but-for cause of
official action offending the
Constitution. When the vengeful
officer is federal, he is subject to
an action for damages under the
authority of Bivens.
Id. at 256 (citations, internal quotation marks and brackets
omitted). Thus, we will proceed on the assumption that there
is a Bivens cause of action for First Amendment retaliation
claims.
38
385 F.3d 274, 282 (3d Cir. 2004) (citations omitted). “The
threshold requirement is that the plaintiff identify the
protected activity that allegedly spurred the retaliation.” Id.
It is beyond dispute that the First Amendment protects
George’s right to possess, read and study the flashcards and
the book he was carrying. Indeed, the individual Federal
Officials25 readily concede that an airplane passenger may
read whatever he or she pleases. However, the fact that
George had a First Amendment right to possess, read and
study the materials he possessed does not end the inquiry.
The fact that George clearly had a right to have these
flash cards, does not mean that TSA Officials had to ignore
their content or refrain from investigating him further because
of the words they contained. The totality of circumstances
here could cause a reasonable person to believe that the items
George was carrying raised the possibility that he might pose
a threat to airline security. That suspicion was the reason for
their increased level of scrutiny during the airport screening.
The TSA Officials’ suspicion was an obvious
alternative explanation for their conduct, which negates any
inference of retaliation. See American Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (“Importantly,
the Court held in Iqbal, as it had in Twombly, that courts may
infer from the factual allegations in the complaint ‘obvious
alternative explanation[s]’, which suggest lawful conduct
rather than the unlawful conduct the plaintiff would ask the
court to infer.”) (citing Iqbal, 556 U.S. at 682).26
25
The “individual Federal Officials” are the three TSA
Screening Officers and the two FBI Agents assigned to the
JTTF.
26
Although it is too obvious to require citation, we
nevertheless stress that the First Amendment will not tolerate
singling someone out for enhanced scrutiny because s/he is
carrying materials critical of the United States or its foreign
policy. Indeed, it is fair to say that periodicals as diverse as
The Wall Street Journal and The Washington Post will
frequently contain articles critical of the United States and/or
its foreign policy during any given administration and at any
given moment in time. However, this incident survives
39
Moreover, because we have found that the individual
Federal Officials’ search and questioning of George during
the screening did not violate George’s Fourth Amendment
rights, we are hard-pressed to find that it could result in a
First Amendment retaliation claim on this record. See
Hartman v. George, 547 U.S. 250 (2006).27
Accordingly, the individual Federal Officials are
entitled to qualified immunity on George’s First Amendment
retaliation claim.
VI. CONCLUSION
For the foregoing reasons, we hold that the Federal
Officials are entitled to qualified immunity on George’s
Fourth and First Amendment claims. Accordingly, we will
vacate the order of the district court denying their motion to
dismiss and remand with instructions to grant the motion.
scrutiny under both the First and Fourth Amendment because
of the flash-cards George was carrying. As we have
explained, the Federal Officials acted reasonably in briefly
detaining George for further investigation because of
concerns that were raised by those flash-cards.
27
In Hartman, the Court held that a plaintiff cannot state a
claim for retaliatory prosecution in violation of the First
Amendment if the charges were supported by probable cause.
40