Apr 26 2012

No-fly case goes forward against Feds, while SFO pays through the nose for false arrest of traveler

We’ve noted previously that, as the DHS increasingly relies on state and local law enforcement officers and private contractors to carry out its extrajudicial “no-fly”, search, and surveillance orders, those individuals and their employers face a growing risk of liability for their actions against travelers.

Case in point: Ibrahim v. DHS et al.

We’ve reported previously on some of the earlier stages in this case, originally filed in 2005 by a Malaysian architect, then a doctoral candidate at Stanford University and today (having received her Ph.D. from Stanford in absentia) a professor and Dean of the Faculty of Design and Architecture at UPM in Malaysia.  When she tried to check in at San Francisco International Airport (SFO) for a flight back to Malaysia to give a presentation about her Stanford research, she was arrested by SFO airport police (a branch of the San Francisco police force) on the direction of a private contractor who answered the phone at the TSA’s Transportation Security Operations Center (since renamed — we are not making this up — the “Freedom Center”).  She was told she was on the “no-fly” list, but was allowed to fly home to Malaysia the next day, after which her US student visa was revoked.

Through her lawyers in the US, Ibrahim sued the various Federal agencies involved in no-fly decisions; their individual officials, employees, and contractors; and the San Francisco city and county, airport, police department, and individual police officers, for violations of her 1st and 5th Amendment rights.

The case has a had a tortured procedural history. After seven years, there has been no discovery, fact-finding, or rulings on any of the substantive issues. The case has, however, survived a series of District Court rulings and two appeals to the 9th Circuit Court of Appeals, first in 2008 on which, if any, Federal court (district or circuit, in San Francisco or DC) had jurisdiction to hear the case, and then in February 2012 on whether Dr. Ibrahim had standing, as a non-US citizen now residing (involuntarily) outside the US, to bring her Constitutional claims in US courts.

The latest ruling by the 9th Circuit in Ibrahim v. DHS, which allows the case against the government and its agents to go forward, is significant for its rejection of several of the Federal government’s key arguments against judicial review of no-fly decisions:

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