PHILADELPHIA (AP) — A former college student who sued three federal agents for detaining him for hours at an airport after he was found with Arabic language flashcards that included the words "bomb" and "terrorist" has had his lawsuit rejected by a U.S. appeals court.
Nicholas George sought to sue three Transportation Security Administration agents and two FBI agents over the August 2009 stop at Philadelphia International Airport, saying they violated his free speech rights and conducted an improper search and arrest based on the flashcards and a book critical of American policy in the Middle East.
A district judge rejected the agents' assertion of immunity, but the 3rd U.S. Circuit Court of Appeals overturned that ruling in a decision issued Tuesday.
George was returning from his home in a Philadelphia suburb to Pomona College in California, where he was studying Arabic, when TSA agents saw the words "bomb" and "terrorist" among his flashcards and called police. George was detained for nearly five hours, two of them in handcuffs in a city police station at the airport.
Chief Judge Theodore McKee, writing for the three-judge panel, said George clearly had the right to possess and use such flashcards and the book and called the detention by the TSA officials "at the outer boundary" of constitutional protections against unreasonable search and seizure. But he said the agents were justified in detaining George briefly to investigate.
"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.," he wrote. "Rather, basic common sense would allow those officials to take reasonable and minimally intrusive steps to inquire into the potential passenger's motivations."
In arguments in federal court in October 2012, the American Civil Liberties Union, representing George, said the search should have ended when it was clear George wasn't carrying any weapons or explosives. The appeals court acknowledged that "much of the concern dissipated" after George was found to be unarmed but that didn't mean further inquiry was unwarranted.
"Suspicion remained, and that suspicion was objectively reasonable given the realities and perils of air passenger safety," the decision said. "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."
George was then detained for a longer period and handcuffed by Philadelphia police before his release following questioning by the FBI agents, but the court said the federal officials played no role in those actions.
American Civil Liberties Union attorney Benjamin Wizner called the decision perplexing, saying it didn't explain how a college student's possession of Arabic-English flash cards could give rise to any suspicion, much less reasonable suspicion.
"Were they saying that he needed those flash cards to try to hijack the plane in Arabic? Because he presumably knew how to do that in English," Wizner said Wednesday.
Wizner said the legal team hadn't yet had a chance to confer, but the decision could be appealed to the full 3rd Circuit or to the U.S. Supreme Court. He also said it didn't affect pending legal action against Philadelphia police or the U.S. government.