The most recently filed lawsuit to result from detention of a would-be traveler at a TSA checkpoint highlights an interesting pattern:

While Federal departments themselves, and their agents in their official capacities, have thus far largely escaped legal liability for interference with travelers’ rights, multiple lawsuits against individuals who have enforced secret DHS directives — including DHS officers in their individual capacities as well as city, state, and tribal police acting as their accomplices and/or at their behest — are moving forward.  Yet at the same time, the DHS continues to use local law enforcement officers to carry out its secret orders, and has in some cases revealed policies directing DHS agents to take a literal “hands-off” attitude themselves, even while calling in local police to enforce what are at root (illegal) Federal orders.

Here’s a round-up of some pending cases across the country, leading up to the latest, with apologies for the sometimes tortured procedural histories which tend to characterize such cases and obscure the real issues:

Ibrahim v. DHS et al. (No. C 06-00545 WHA, N.D. CA) — Rahinah Ibrahim, a doctoral candidate in architecture at Stanford University, was prevented from boarding a flight at San Francisco international Airport, told she was on the “No-Fly” list, arrested, handcuffed, and detained in a cell for several hours.  She was eventually allowed to return to her native Malaysia, where her visa to re-enter the U.S. was immediately revoked. Our loss. After completing her doctoral work from abroad and receiving her Stanford Ph.D. in absentia, she is now on the faculty of the Universiti Putra Malaysia.

Dr. Ibrahim’s original Federal complaint named as defendants the DHS, TSA, TSC (Terrorist Screening Center), FAA, FBI, San Francisco International Airport, City and County of San Francisco, San Francisco Police Department, United Airlines, and a number of individuals directly involved in the incident. (Documents on the first phase of the case are here.)  The 9th Circuit Court of Appeals eventually ruled that her case against some of the Federal defendants could proceed (video of oral argument).  On remand, however, her second amended complaint was dismissed as against all of the Federal defendants, leaving only the City and County of San Francisco, the airport, the local police, and private contractors as defendants.

The case against the remaining defendants nonetheless remains alive, and in its latest ruling in December 2009 the District Court ordered the release to Ibrahim’s lawyers of information as to “certain communications to San Francisco officials and airline employees that led up to plaintiff’s detention. This is the heart of plaintiff’s case. Indeed, the parties insist that such information is necessary for plaintiff to attempt to prosecute her case and for San Francisco defendants to attempt to exonerate themselves.”  Under the District Court’s latest order, Dr. Ibrahim’s lawyers would learn what instructions the Feds gave to local law enforcement and the airline (i.e. that they said she was on a no-fly list and/or told them not to let her fly), but not who put her on that list or why. The court stayed its own order until April 1, 2010, to give the government a chance to appeal before any information is actually released.

The posture of the case puts the Feds and the other defendants at odds with each other, and collectively in a Catch 22:  If they admit that the Feds ordered the airline not to transport Dr. Ibrahim, or to detain or arrest her, she can then challenge those actions as Federal orders — judicial review that the DHS has been publicly committed never to allow. But if the Feds stonewall, the cops, airline, airport, and city are left with only, “someone on the phone told me she was on some list” as their claimed justification for detention, arrest, and denial of transport.

The Feds’ conduct in this case ought to give other local, state, and private actors pause when the TSA or other Feds try to use them as a front for actions those Feds lack the authority to carry out themselves, or are unwilling to allow to be reviewed by the courts. If their actions are challenged, the Feds will let them take the rap, and withhold essential evidence that leaves them defenseless against charges of illegal interference with Federally-guaranteed rights, in violation of the Constitution, international human rights treaties, and 42 USC 1983, which effectuates both Constitutional and international treaty rights against action under color of state or local law.

Bressi v. Ford et al. (No. CV-04-00264-JMR, U.S.D.C., D. AZ) — While attempting to drive through a Native American reservation on a state highway public right-of-way, Terry Bressi was stopped, dragged out of his vehicle, detained for several hours, and eventually charged with trumped-up violations of state law at a suspicionless checkpoint operated ostensibly by tribal police (but actually in an “alliance” with several Federal agencies whose officers took active frontline and behind-the-scenes roles), ostensibly as a sobriety checkpoint (but actually as a general purpose law enforcement dragnet). All charges against Mr. Bressi were dismissed, twice (the second time “with prejudice”), after state prosecutors failed to produce any evidence to support them.

Mr. Bressi brought suit against tribal, state, and Federal agencies and officers for having violated his civil rights.  The case has had a tortured procedural history recounted in detail at CheckpointUSA.org. The defendants squirmed and danced, first having the case removed from state to Federal court because they were allegedly acting under Federal authority, then claiming that they had sovereign immunity from Federal liability as state agents.  In August 2009, ruling on appeals of pretrial rulings, the 9th Circuit Court of Appeals issued an opinion (analyzed in detail here) which upheld the dismissal of the most recently amended Federal complaint against the Federal defendants, but remanded the case to go forward toward a trial on Bressi’s claims for injunctive relief and damages against the individual tribal police officers under 42 U.S.C. 1983.

In an important victory for the right to travel on public rights-of-way, the 9th Circuit held that tribal jurisdictions don’t have the power to exclude non-tribal members from state rights-of-ways that run through tribal territory.  This is an important decision that affects all travelers crossing through tribal lands in, among other states, Alaska, Hawaii,  Washington, Oregon, California, Idaho, Montana, Nevada and Arizona. No longer can tribal police claim sovereign immunity from legal action if  they violate the Constitutional rights of individuals traveling  through tribal lands along state or Federal highways. The 9th Circuit reasoned that because the tribal officers did not limit their activity to determining whether or not Bressi was a member of the tribe, and because the roadblock was set up along a state highway, the tribal police were conducting the checkpoint under color of state law and therefore lost any claim to sovereign immunity.

The 9th Circuit decision makes clear that tribal, like state and local, authorities must abide by Constitutional limitations when conducting enforcement operations on state highways. It also makes clear that roadblocks in general can be challenged regarding their operation and scope. The outcome of the case on remand in the trial court is likely to depend on whether or not the roadblock, initial stop, and questioning were Constitutional, and if not whether or not injunctive relief will be imposed.

While it’s important that this case now seems likely to result in a ruling as to some of the limits of police authority to detain travelers in the absence of suspicion, it’s equally important that even when the complaint against all the Federal agencies was thrown out of court before trial, the individual police officers have not been able to escape the potential for personal legal liability. One message of this case is that local, state, and tribal law enforcement agencies and agents need to respect Constitutional limits on their authority. And the other message of this case is that if they don’t, neither the claim nor even the reality that they were acting at the behest of Federal law enforcement agencies will get them off the hook.

Local law enforcement officers typically defer to Federal agents, and the Feds typically take for granted their superiority over local cops. But this case should give serious pause to local police called in by the DHS, whether at a (suspicionless) highway checkpoint or at a (suspicionless) airport checkpoint, and “requested” by the DHS to detain or arrest someone merely on the say-so of a DHS official, without a warrant, court order, or explicitly articulated and Constitutional basis for such detention or arrest.

(Look for another similar case in Arizona soon: CheckpointUSA.org reports that trumped-up criminal charges against Steven Anderson, who was beaten and tasered by Border Patrol agents and Arizona state police at a suspicionless highway checkpoint earlier this year, have been dismissied with prejudice, and that Mr. Anderson is preparing a civil rights lawsuit against the Border Patrol and Arizona Department of Public Safety.)

George v. Reihl et al. (filed Feb. 10, 2010, U.S.D.C., E.D. PA) — College student Nicholas George was detained, handcuffed, and locked in a cell by Philadelphia police, interrogated by FBI agents, and held for more than four hours (long enough for him to miss his flight, and delay his trip for a day) after TSA “screeners” noticed the Arabic language-learning flash cards he had with him while going through a TSA checkpoint at Philadelphia International Airport to get to a domestic flight back to college in California after a trip to his parents’ home in Pennsylvania.

Earlier this month Mr. George filed a Federal civil rights lawsuit against the responsible TSA, FBI, and Philadelphia police officers. The ACLU website refers to the case as “George v. TSA,” and we like the sound of “THREE UNKNOWN NAMED OFFICERS OR AGENTS OF THE TRANSPORTATION SECURITY ADMINISTRATION,” but it appears from the complaint that the proper header is “George v. Reihl, et al.”

Perhaps taking a lesson from the history of the Ibrahim and Bressi cases, Mr. George’s complaint is solely against the individual agents, in their individual, not official, capacities.

This confronts the officers and agents with a dilemma: If they want to shift responsibility and liability from themselves to the Feds, or argue in their defense that they were “just following orders” from the Feds, the onus is on them to put forward evidence of such orders.  But if they do so, those orders then become part of the record, as orders, and thus subject to scrutiny and review of their validity by the court — which is exactly what the DHS has been most adamant that it won’t allow, even if that means leaving its employees and contractors to take the rap for actions actually taken at the explicit or implicit instigation of the DHS.

We think DHS policies, especially ones that (purport to) impose obligations on individuals, define what is or isn’t permitted or required, or grant power to government agents, should be promulgated through the normal, formal, public rulemaking process for Federal regulations, so that they could be subjected to judicial scrutiny and review for facial validity or invalidity as policies, not just after-the-fact as applied in individual cases. That’s what’s required by the the Administrative Procedure Act, Constitutional principles of due process, and the standards set by the U.N. Human Rights Committee for rules impacting the right to freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights.

But if the TSA, Border Patrol, and other divisions of the DHS won’t engage in formal rulemaking or issue publicly disclosed regulations or orders that can be reviewed by the courts, the next best thing is for those who enforce those non-regulations and non-orders against the public to face personal liability for their infringements of our rights. As all of these cases move forward, we hope they serve as a reminder that local police summons to DHS checkpoints should get in the habit of conducting their own evaluation of the constitutional basis for a detention or arrest before forcibly preventing anyone from traveling by common carrier or or on a public right-of-way, conducting a search, compelling responses to interrogation, applying handcuffs, or making people move from one place to another, much less liking them in a cell.