As you have probably heard, the case of the “flying imams” has been settled. The six Muslim clerics who were pulled off a U.S. Airways flight at the Twin Cities airport on Nov. 20, 2006 by Metro Airport Commission police will be paid an undisclosed sum by some combination of the MAC, U.S. Air and possibly the FBI in exchange for which the imams will drop their suit alleging improper arrest and other acts of discrimination or defamation.
The amount of the settlement has not been disclosed, but it covers all claims and all defendants. The imams have declared themselves satisfied with the outcome. Since the MAC and the FBI are public institutions, perhaps the amount of their payments may be eventually become known.
The case caused a huge hullabaloo around these parts on when the clerics were arrested. Congress even passed a law — and the Minnesota case was discussed on the floor of the House as the motivation for the law — designed to protect people from reporting their suspicions under circumstances like this. (The passengers who originally raised questions about the imams were not defendants and have not been named publicly. It is not a crime, nor a tort, for a passenger to report his suspicions to the airline crew.)
The imams, and the way they were arrested, became for a time the symbol of the post-9/11 national nervousness about Middle Easterners on airplanes and for the allegation that you could get arrested for the “crime” of “flying while Muslim.”
The nervousness was understandable, but that didn’t make it constitutional. The Fourth Amendment protects us against unreasonable seizures by the government, which in a case like this means that even the shock of the 9/11 attacks didn’t repeal the simple rule that police cannot arrest someone unless they have probable cause to believe that the arrestees have committed a crime.
Clearly, the MAC cops had no reliable cause to believe that the imams had committed a crime. What crime would it be? So the only justification would be that their actions, which caused a nervous passenger to send a note up to the cockpit, made it likely that the Muslim clerics were going to do something deadly while the plane was in flight.
If you think back to those days, you’ll recall some of the basis for the suspicion. According to witnesses, the imams prayed loudly in the terminal. They criticized the U.S. war in Iraq. They were holding one-way tickets. They had no checked luggage. They seated themselves in a suspicious manner around the plane. Several of them asked for seat-belt extenders (which, to sufficiently nervous eyes, may have been used as weapons).
I didn’t cover the case when it first broke, but I remember thinking, when I heard about the seating pattern and heard about the seat-belt extenders, that there may indeed have been something suspicious going on. Why would thin people need seat-balt extenders? That instinct was wrong, completely, as were many of the allegations on which it was based. But I remember and confess the thought, by way of expressing some sympathy for those who got carried away by their suspicions. This is really a story about the understandable national jumpiness in the post-9/11 era.
The big break that led to the settlement was probably the opinion, written by federal Judge Ann Montgomery of Minneapolis in July, rejecting the MAC’s motion for summary judgment. Summary judgment (which is a way of getting a lawsuit dismissed) is often rejected. Turning down a summary judgment motion only means that the case can proceed toward trial. So losing a summary judgment motion didn’t mean that the Imams were going to win their case.
But the strength and clarity of Montgomery’s opinion surely alerted the defendants that they were in a world of trouble if the case reached trial. So I’m basing my analysis of the case heavily on the Montgomery ruling, which has the advantage of being based on actual sworn depositions of witnesses, and filtering a lot of things that turned out not to be true.
After a careful review of the evidence up to that point, and leaving open the possibility of other information that could come out at trial, Montgomery wrote that the imams had certainly been arrested, and that no reasonable basis existed for the arrest. Although the defendants filed notice of an appeal of the Montgomery ruling, settlement negotiations presumably took on a new urgency for the MAC and the airline, and they settled the case shortly after their appellate briefs were due.
As you review the facts of the case, ask yourself which of the “suspicious” actions of the imams would have been suspicious if they had not been Muslims.
Here’s what Montgomery found:
The six imams, five from Arizona and one from California, had attended a conference in Minneapolis of the North American Imams Federation. Nothing secretive about the conference. The FBI had been invited to give a presentation but had declined.
On the day of their flight home, the six Muslim clerics, and their luggage, passed through the airport security screening with no problems. Although the lack of checked luggage was one of the causes for suspicion (and how, in these days when many people travel with carry-on luggage only, could that be deemed evidence of an intent to commit a crime), it turned out that three of the imams actually did check bags. Three did not.
The six men actually had round-trip tickets, but three of the imams had changed from their original return flight and so had booked what looked like a one-way ticket home. Those facts are not in dispute and the airline was aware of them before the imams were removed from the plane. (Once you know that, the supposedly suspicious fact about the one-way ticket kind of disappears, doesn’t it?)
In keeping with the religious requirements of devout Muslims, three of the imams prayed in the airport, in the empty gate next to the departure gate. They knelt, prostrated themselves and chanted. It was mentioned by those who reported the imams to the flight crew that they prayed “loudly” and were heard to chant “Allah, Allah.”
This clearly was a key point at which some of the non-Muslim passengers began to notice the men and to get nervous. But ask yourself whether Muslims praying to Allah, loudly or softly, could be taken as evidence that they were planning to commit a crime. Wrote Montgomery:
“Plaintiffs’ Middle Eastern descent does not change the analysis. Similar behavior by Russian Orthodox priests or Franciscan monks would likely not have elicited this response.”
Once they boarded, the imams mostly did not sit together. One of the imams was blind, and one of the others asked a passenger to trade seats so he could accompany the blind man. The rest of them were seated all around the plane, one in first class, the rest in coach.
In the early news reports, this seating pattern was listed as another ground for suspicion. I recall reading that the imams were occupying the exit rows (which, I recall, was another moment when I wondered whether there was something suspicious going on).
But the evidence showed that only one of the six men was seated in an exit row, which had been assigned to him by the airline. Except for the one who had traded to sit with his blind colleague, all of them were sitting in the seats they had been assigned by the airline. The one in first class was up there because of his frequent flier status. The airline, of course, had all this information. Again, the “suspicious” seating pattern kind of goes away once you know these facts.
Seat belt extenders are used by large passengers who have trouble buckling a regular-length seatbelt. I also recall reading that all or most of the imams had requested seat belt extenders, including some who were of average size. I also recall buying into the idea that seat-belt extenders could useful as weapons by a group of passengers seeking to take over a flight for nefarious purposes.
But Montgomery found — based on undisputed testimony — that only two of the imams had requested the extenders, and both of them were large men for whom the request should not have seemed particularly strange. Bear in mind that extenders are made available by the airline. The flight attendants provided the extenders and helped the imams buckle in. Upon reflection, it’s strange to think that something the airline keeps aboard and offers to passengers could be viewed as a valuable weapon for commandeering the plane. In her ruling, Montgomery wrote:
“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.”
All of the evidentiary matters above were undisputed and were or could have been known to the airline and the MAC before they kicked the imams off the plane. There was one more issue that was raised by the suspicious passengers, and apparently taken into account by the pilot and the police, that is in dispute.
The last basis for the suspicions was the claim of one passenger that “the men talked about Saddam Hussein, U.S. involvement in Iraq, and cursed about the United States.” The imams have denied that they made any such remarks. So that’s the only key evidentiary point in dispute. Under the rules for a summary judgment motion, Montgomery had to assume the truth of the facts most favorable to the non-moving party — that is, to the imams (since this was a motion for summary judgment brought by the defendants in the case. But she found that it really made little difference whether the imams had made the remarks or not. In her ruling, Montgomery wrote:
“Commenting on current events, and even criticizing governmental policy is protected speech under the First Amendment. It cannot be taken a crime and should not be used as probable cause for an arrest.”
This pretty much summarizes all of the grounds for suspicion that existed. A passenger who had been watching all of the above wrote a note, gave it to a flight attendant who brought it to the captain. It read:
“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.”
The pilot announced that the flight was delayed. A U.S. Air manager called the MAC police dispatcher and said (this call was recorded and the transcript was available to the court) that the airline had decided to remove “six Arabic passengers.” The manager explained the note from the suspicious passenger. Note that the decision to remove the men was made by the airline, not the police.
Police cars pulled up on the tarmac. MAC police came onto the plane and interviewed the suspicious passenger, who told them the same things he had said in the note. The FBI were consulted and dispatched agents to the plane.
Were they arrested?
The next details reflect on the question of whether what was done to the imams could be viewed as merely an investigative detention or must be termed an “arrest,” which elevates the requirement of probable cause.
The MAC police ordered the imams to leave the plane. On the jetway, they were lined up, told they were not free to leave or to speak to one another. They were subsequently taken back on the plane and told to remove their carry-on bags. Back on the jetway, the bags were inspected by bomb-sniffing dogs. No explosives were found.
The six were detained on the jetway for about an hour. Then they were taken to the airport police facilities, handcuffed, pat-searched and questioned, eventually by FBI and Secret Service agents. They were ultimately detained between five and six hours, then released. No charges were filed. The judge concluded that the six definitely were arrested. If the imams had merely been removed from the flight, not handcuffed or detained for hours, this part of the case might have gone away.
The technical legal line between a detention and an arrest is apparently subject to some interpretation. But being taken away in a police car, handcuffed, held for hours and told you are not free to leave are all elements that caused Judge Montgomery to rule that the men had been arrested. So, to avoid a charge of discriminatory or false arrest, the cops had to have probable cause to believe that they had committed or were in the process of committing a crime.
What crime? The MAC defendants mentioned crimes such as “air piracy,” “interference with flight crew members” or “terroristic threats.” At the oral arguments on the summary judgment motion, a U.S. attorney was asked, if he was drawing up a charge, what overt acts by the imams he could have cited as evidence that the imams had committed any of the offenses? The prosecutor couldn’t name any. In her ruling, Montgomery concluded:
“An examination of the elements of these statutes indicates that no reasonable officer could believe that there was probable cause to arrest Plaintiffs for a violation of any of these statutes.”
Montgomery went over all of the elements of the suspicious passenger’s suspicion that the imams had been up to no good. Some of them turned out to be untrue or exaggerated. But the judge concluded that:
“This information, if it were all true, falls short of leading a reasonable officer to conclude there was probable cause that a crime was being or had been committed. No officer has stated that he evaluated the factors and made a probable cause determination—arguable, or otherwise. [The MAC police officer] agrees he made no probable cause determination. When asked if he had probable cause an individual had committed a crime, [the officer] testified that he did not make that determination.”
This is pretty serious and it gets to the essence of the case, at least where the police were involved. You’re a police officer. You know that you cannot make an arrest without probable cause. But, in this case, you made an arrest and subsequently had to acknowledge that you had failed determine, or to ask yourself, whether probable cause was present.
I have quite a bit of sympathy — perhaps more than is coming through in this post — for the officers and the airline officials who made these decisions. This was not the immediate aftermath of the attacks of 9/11/2001. In fact, it was slightly more than five years later. But what happened at the World Trade Center surely sets the stage for what happened at the Lindbergh Terminal. If you were an air traveler (like the suspicious passenger) or an air travel professional (like the cockpit crew) and especially if you were an airport police officer, it’s easy to imagine and to identify with the feeling that nothing would matter more to you than preventing an airplane hijacking (or worse) if there was anything you could do about it.
Montgomery took this on directly, and quite eloquently:
“Finally, the MAC Defendants suggest that the attacks of September 11, 2001—perpetrated by men of Middle Eastern descent who espoused a radical version of Islam—justifies a massive curtailment of liberty whenever terrorism, and in this case, the suspicion of Islamic terrorism, is concerned.
“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. On the record before the Court, no reasonable officer could have believed they could arrest Plaintiffs without probable cause. The right that was violated is clearly established, and, thus, the MAC Defendants are not entitled to qualified immunity. Accordingly, summary judgment is denied on the unreasonable seizure claim.”