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Farag v. United States

November 24, 2008

TARIK FARAG AND AMRO ELMASRY, PLAINTIFFS,
v.
THE UNITED STATES, WILLIAM PLUNKETT, AND THOMAS SMITH, DEFENDANTS.



The opinion of the court was delivered by: Frederic Block, Senior United States District Judge

MEMORANDUM AND ORDER

TABLE OF CONTENTS

STATEMENT OF THE CASE ..................................................4

Facts..................................................................4

I. Events at San Diego International Airport .........................5

II. Events During the Flight .......................................7

III. Events at JFK ................................................10

IV. Events at the Port Authority Police Station ......................13

The Commencement of the Litigation ....................................15

The Government's Justification for Its Conduct ............................16

DISCUSSION ...............................................................17

Summary Judgment Standards ..........................................18

Bivens and FTCA Claims

I. Analytical Framework .........................................19

A. Bivens Claims ..........................................19

B. FTCA Claims ...........................................21

C. Qualified Immunity ......................................22

II. Analysis ....................................................23

A. Were Plaintiffs Arrested? .................................23

1. Show of Force and Restraint of Movement at the Terminal ...................................24

2. The Jailings and Custodial Interrogations ............27

3. Duration of the Detentions and Interrogations ........29

B. Was There Probable Cause for the Arrests? ....................33

1. Was There Probable Cause Based on Non-Ethnic Factors Alone? .........................34

2. Would Consideration of Plaintiffs' Ethnicity Warrant a Finding of Probable Cause? ...............38

3. Can Plaintiffs' Arab Ethnicity Serve as a Probable Cause Factor? ........................39

C. Are Smith and Plunkett Entitled to Qualified Immunity? ........53

Remaining Claims .....................................................58

CONCLUSION .............................................................60

BLOCK, Senior District Judge

On August 22, 2004, weeks away from the third anniversary of 9/11, plaintiffs Tarik Farag ("Farag") and Amro Elmasry ("Elmasry"), both Arabs, flew from San Diego to New York's John F. Kennedy Airport ("JFK") on American Airlines Flight 236. They claim that when they deplaned they were met by at least ten armed police officers in SWAT gear with shotguns and police dogs, ordered to raise their hands, frisked, handcuffed and taken to a police station, where they were placed in jail cells; they were not released until about four hours later, after having been interrogated at length during their imprisonment regarding suspected terrorist surveillance activity aboard the plane. The investigation yielded absolutely no evidence of wrongdoing.

Alleging that they were unlawfully seized and imprisoned, Farag and Elmasry have each brought an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against defendants FBI Special Agent William Ryan Plunkett ("Plunkett") and New York City Police Department Detective Thomas P. Smith ("Smith"),*fn1 two counterterrorism agents responsible for plaintiffs' seizures, detentions and interrogations. Plaintiffs also sue the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., for Plunkett's and Smith's allegedly tortious conduct.*fn2 The defendants (collectively, the "Government") now move for summary judgment on the merits; alternatively, Plunkett and Smith seek summary judgment as to plaintiffs' Bivens claims on the ground of qualified immunity. Plaintiffs have not cross-moved.

The Government considers this "a case of first impression for the federal courts" because it "presents important questions concerning the scope of legitimate law enforcement activity in response to suspected terrorism-related conduct by passengers on board a domestic commercial aircraft." Def'ts' Mem. of Law in Support of Mot. for Summ. J. (hereinafter "Gov't Br.") at 1. It contends (1) that the agents merely conducted a valid Terry stop when they seized, detained and questioned plaintiffs for approximately four hours, or (2) alternatively, if the Court determines that the agents arrestedplaintiffs, that there was probable cause to do so. In either case, the Government "take[s] the position that the Arabic ethnicity of the plaintiffs is and was a relevant factor in the Fourth Amendment analysis." Tr. of Oral Argument, July 18, 2008, at 13.

The Court rejects the Government's contention that plaintiffs' ethnicity can be a factor in determining the validity of plaintiffs' seizures and detentions, and holds that plaintiffs' Bivens and FTCA claims survive summary judgment. Further, with respect to the Bivens claims, the Court holds that summary judgment cannot be granted on Smith and Plunkett's qualified-immunity defense, since there are factual issues to be resolved at a trial.

STATEMENT OF THE CASE

Facts

The facts are taken primarily from the Government's Rule 56.1 Statement of Undisputed Material Facts (hereinafter "Gov't Stat."), which consists largely of plaintiffs' own deposition testimony describing the relevant events. The Government admits the contents of its Rule 56.1 Statement to be true only for the limited purpose of its motion for summary judgment, and has "reserve[d] the right to dispute the facts" in the event of a trial. Gov't Stat. at 1, n.1; see Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc.,113 F.3d 296, 298 n.4 (2d Cir. 1996) ("[Defendant] concedes negligence for purposes of its summary judgment motion, while preserving its right to challenge negligence should the case go to trial.").*fn3 In footnotes, the Court indicates where plaintiffs, in their responsive Rule 56.1 Statement (hereinafter "Pl. Stat."), take exception to the facts as characterized in the Government's Rule 56.1 Statement.

The court also takes information from (1) Smith and Plunkett's contemporaneous incident report; (2) Plunkett's contemporaneous summary of his interrogation of Elmasry; (3) Smith's contemporaneous summary of his interrogation of Farag; and (4) the declaration of Dennis Walsh, the pilot of Flight 236 -- all of which the Government submitted in support of its summary-judgment motion.

I. Events at San Diego International Airport

Farag and Elmasry, long-time friends, were flying from San Diego International Airport to JFK after vacationing in California. Both were born in Egypt, but Farag, 36, had moved to the United States in 1971 at age five and later became an American citizen. He was a retired New York City police officer, and was then employed by the United States Bureau of Prisons as a corrections officer. Elmasry, 37, was an Egyptian citizen; he was employed in Egypt by General Electric as an area sales manager for its Africa-East Mediterranean region, and had a valid United States visa.

After plaintiffs boarded the plane, they took neighboring but non-adjacent seats: Farag was seated in 17E, a middle seat on the right side of the aisle, and Elmasry was seated in 18A, a window seat on the left side, one row behind Farag. Smith and Plunkett were seated nearby: Smith was in seat 17A, a window seat immediately in front of Elmasry and in the same row as Farag, but on the other side of the aisle, and Plunkett was one seat away in 17C, the aisle seat. The seat between Smith and Plunkett, 17B, was vacant. Plaintiffs did not know that Smith and Plunkett were counterterrorism agents.

Plaintiffs placed their carry-on luggage in the overhead compartments above their respective seats, and, once seated, "talked to each other, over the heads of the other passengers, in a mixture of Arabic and English." Gov't Stat. ¶ 33.*fn4 While the plane was at the gate, Elmasry entered the aisle and asked Plunkett if he would be willing to shift over one seat to 17B, the center seat, and let Elmasry sit in 17C, the aisle seat.*fn5 Plunkett declined.

After Elmasry left his seat to speak to Plunkett, a female passenger seated next to Elmasry in 18B had stretched her legs across Elmasry's seat. After Plunkett refused Elmasry's request, Elmasry, rather than returning to his seat, asked Smith and Plunkett if he could sit between them, in the vacant seat 17B. Smith and Plunkett agreed. According to the agents' contemporaneous incident report, Plunkett thought it "unusual that anyone would move from an exit row window seat to an exit row middle seat . . . in between two large men," Incident Report, Ex. C to Perry Decl., at 2, but the report also acknowledges that Elmasry had explained that he wanted to change seats "so he could be 'close to [his] friend[.]'" Id. at 1.*fn6

Even after Elmasry moved to 17B, he and Farag still "were only able to converse with each other . . . over the heads of other passengers." Gov't Stat. ¶ 39 (quoting Compl. ¶ 30). Once again, they spoke "in a mixture of Arabic and English," id., but were now "speaking loudly." Id.*fn7 At some unspecified point, Farag fell asleep.

II. Events During the Flight

As the plane took off -- as well as at various other times throughout the flight -- Smith and Plunkett noticed Elmasry looking at his watch. According to the two agents, Elmasry appeared to be "timing" various events during the flight, such as takeoff, attainment of level flight, and the commencement of the meal service. Id. ¶ 43.*fn8

About half an hour after takeoff, Elmasry left his seat to go to the lavatory at the rear of the plane. On his way back, Elmasry spoke with a flight attendant, asking if there were two adjacent empty seats to which he and Farag might move.*fn9 Elmasry then returned to the seat between Smith and Plunkett and fell asleep. He awoke during the meal service; Farag had already awakened some time earlier. Once the meal had been served and plaintiffs had eaten, the flight attendant with whom Elmasry had spoken approached him in his seat between the agents and "told him that there were two empty seats at the back of the plane for him and Farag." Id. ¶ 47. Elmasry entered the aisle, leaned over to Farag, and spoke a "very short sentence" in a mixture of Arabic and English. Id. Plaintiffs moved to the two seats at the rear of the plane but did not take their carry-on bags with them.*fn10

About an hour and a half before landing, Smith and Plunkett decided that Farag and Elmasry should be detained and questioned when the plane landed because the agents were concerned that plaintiffs "may be conducting [terrorist] surveillance[] or probing operations." Id. ¶ 63 (quoting Incident Report, Ex. C to Perry Decl., at 2).*fn11

Plunkett explained to the flight's captain that "two men of [M]iddle [E]astern descent" were "acting suspicious" in that "they were talking back and forth in Arabic" and that "one of them got up from his assigned seat and sat between [Smith and Plunkett]." Walsh Decl., Ex. E to Occhiogrosso Aff., at 1. Although the agents "did not feel that these two individuals posed an immediate threat to the flight," they nonetheless asked the captain to "request[] a team of officers . . . to meet the approaching aircraft at the gate . . . and [to inform them] that two [M]iddle [E]astern males will be stopped and questioned about their actions during the flight." Incident Report, Ex. C to Perry Decl., at 2.

Elmasry and Farag remained at the back of the plane until shortly before landing. After an announcement was made that landing was imminent and the passengers were told to fasten their seat belts, Elmasry returned to seat 17B, between Smith and Plunkett, where he had previously been sitting; Farag sat in Elmasry'soriginal seat, 18A, directly behind Smith.*fn12

Once the plane landed, at approximately 11:30 p.m. local time, Smith and Plunkett again saw Elmasry check his watch. The plane took between thirty and forty-five minutes to reach the gate. At some point during that interval, Elmasry took out his cellular phone and paged through his address book, deleting five or six entries.*fn13 Meanwhile, Farag made two or three "short" calls on his cellular phone; he spoke in English. Gov't Stat. ¶ 57.

While the plane was taxiing, Smith asked Elmasry, who was seated beside him, where he was from and what he did for a living. Elmasry truthfully told Smith that he was from Egypt, that he was employed by General Electric, and that he was in the United States on vacation. Elmasry then asked Smith what he did for a living; Smith falsely told Elmasry that he worked for the delivery company DHL. Elmasry remarked that Smith's job must involve a lot of traveling; Smith said that it did. Elmasry then told Smith that in his own job, he, too, "[was] always traveling."Id. ¶ 58.

III. Events at JFK

Once the plane reached the gate, Plunkett went to the front of the aircraft; soon thereafter, the passengers began deplaning. According to the agents, "Plaintiffs were detained as they exited the aircraft." Id. ¶ 63 (citing Incident Report, Ex. C to Perry Decl., at 3.). As Elmasry recalled events, he retrieved his carry-on bag from the overhead bin and began to deplane, with Farag close behind. Smith and Plunkett had already deplaned. Upon exiting the aircraft, Elmasry saw uniformed police officers standing in the jetway. Plunkett was signaling toward him and Farag. One of the uniformed officers took hold of Elmasry and escorted him into the terminal; another officer did the same to Farag. No one pointed a gun at either plaintiff.

According to Farag, on the other hand, after the passengers had begun deplaning, five or six plainclothesPort Authority police officers boarded and identified themselves, speaking in a "conversational tone"; their badges were displayed on their jacket pockets. Id. ¶ 62.*fn14 The Port Authority officers seized plaintiffs at their seats, grabbing them by their arms; they did not have their guns drawn and did not tell plaintiffs that they were under arrest. The officers asked for plaintiffs' carry-on bags and escorted them off the aircraft while Smith and Plunkett "were standing there." Id. Farag does not recall seeing any uniformedpolice officers until plaintiffs entered the terminal.

Upon entering the terminal, plaintiffs saw a team of uniformed Port Authority police officers (Elmasry remembers ten; Farag, fifteen to twenty) "in SWAT gear"; some had police dogs. Id. ¶ 64. The officers were "carrying shotguns," but no officer pointed a gun at either plaintiff. Id. According to Farag, these officers formed a "perimeter" around the gate area. Id. Farag and Elmasry were separated and taken to locations thirty-five to forty feet apart. Each was accompanied by two officers (Farag by Smith and Plunkett, and Elmasry by two Port Authority officers); a fifth officer walked back and forth between Farag and Elmasry. While at these two locations, Farag and Elmasry were ordered to raise their hands and were frisked.*fn15

Smith then began questioning Farag, who provided Smith with identification and told him truthfully that he was a retired New York City police officer and a federal corrections officer employed by the Bureau of Prisons.*fn16 Farag mentioned to Smith that "after 9/11, when the CIA had c[o]me into the Federal Bureau of Prisons, [Farag's] supervisors had asked [him] to translate documents, to translate tapes . . . ." Id. ¶ 69. He also told Smith that he had "had guns pointed at [him] as a police officer" with the NYPD. Id. Farag explained that during this conversation with Smith he was "[s]cared, frightened, paranoid, [and his] mind was racing[,]" that he was "jittery" and "shaking" and "[his] speech was not calm[,]" and that he was in "a complete sta[t]e of shock" and was "totally confused." Id. Elmasry, who could see Farag at that time, observed that Farag was "nervous[,]" that he looked agitated and jumpy, and that Farag raised his voice at times. Id. ¶ 68.*fn17

"At some point thereafter," the police officers handcuffed Farag and then Elmasry. Id. Although Elmasry recalls being handcuffed "approximately fifteen minutes after being brought into the terminal," id., Plunkett, in his contemporaneous report, stated that plaintiffs were "handcuffed ...


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