Argued: October 5, 2012
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
MARK B. STERN, ESQ. DOUGLAS N. LETTER, ESQ. SHARON SWINGLE, ESQ. (Argued) Attorneys, Appellate Staff Civil Division Department of Justice Attorneys for Appellants
ZACHARY KATZNELSON, ESQ. (Argued) MITRA EBADOLAHI, ESQ. BENJAMIN E. WIZNER, ESQ. LEE B. ROWLAND, ESQ. American Civil Liberties Union Foundation MARY CATHERINE ROPER, ESQ. American Civil Liberties Union Foundation of Pennsylvania DAVID RUDOVSKY, ESQ. Kairys, Rudovsky, Messing & Feinberg, LLP Attorneys for Appellee
Before: McKEE, Chief Judge, JORDAN and VANASKIE, Circuit Judges
McKEE, Chief Judge.
This appeal arises from a suit against five Federal Officials, three of whom were employed by the Transportation Security Administration ("TSA"), 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"). 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 Amendment rights during the course of an airport screening at the Philadelphia International Airport. 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.
According to the allegations in his amended complaint,  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 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. 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.
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 ...