The US government has paid $40,000 as part of the settlement of a lawsuit by a traveler who was falsely arrested by Federal agents and local police when a Frontier Airlines flight she was on arrived at the Detroit airport in 2011, arrive, taken off the plane in handcuffs, locked in a cell for four hours, and strip searched (in a cell with a video camera).

All of this happened without probable cause for an arrest, before any attempt was made to question her, and before any attempt was made by any of the police, airline, airport, or TSA staff to determine whether there was any basis for any of their actions. No criminal or administrative charges were ever filed against her.

The traveler, Ms. Shoshana Hebshi, sued the Federal government, the airline, and named and unknown Federal law enforcement agents, TSA employees, and Wayne County Airport Authority police.

Ms. Hebshi’s lawsuit was dismissed earlier this week on the basis of a settlement, after the Federal judge hearing the case rejected the defendants’ claims of “qualified immunity” with respect to Ms. Hebshi’s complaints of both discrimination and false arrest. “There is no ‘suspected terrorist activity exception’ to the probable cause requirement of the Fourth Amendment,” the judge had ruled.

The details of the settlement were not included in court filings, but the ACLU, which represented Ms. Hebshi, disclosed the $40K payment by the Feds in a public statement about the settlement.

No specific Federal agency or individual took responsibility. The lawsuit named “the United States of America” as a defendant, rather than any specific Federal agency or agencies, and multiple Federal agencies (TSA, FBI, ICE, CBP, etc.) were named in the complaint as having been involved in mistreating Ms. Hebshi.  We don’t know whether others of the defendants (the airport, the airline, or any of the individual defendants) paid money to Ms. Hebshi as part of the settlement, in additional to the $40K from the US Treasury.

The dollar value of the settlement is obviously inadequate to deter similar misconduct by government, airline, and airport personnel in the future. But we are pleased by several aspects of the preliminary rulings by US District Court Judge Terrence G. Berg which led to the settlement.

First, Judge Berg was willing to let the case against the airline, airport, and Federal government, and their employees, go to trial. We’ve talked before about how difficult it can be to overcome claims of “qualified immunity” if the court’s sympathies lean toward the defendants in a case like this — or, to put it another way, how easy it is for  a judge to let government defendants and their private accomplices off the hook.

Second, Judge Berg found that, at least in these circumstances, holding an airline passenger was a de facto arrest (which could be justified only on the basis of probable cause to believe the traveler had committed a crime), and not a mere “investigative detention” justifiable on the lesser basis of “reasonable suspicion”:

Defendants’ argument that the conduct alleged in the complaint was an investigative stop is also without merit. Plaintiff was forced off an airplane by armed officers, handcuffed, briefly questioned and pat searched on the tarmac, transported to the jail, locked in a guarded cell under video surveillance, detained for approximately four hours, and then strip-searched, all before she was questioned extensively about whether she was involved in whatever it was that the passengers in [seats] 12B and 12C were suspected of doing. See supra III.A.2. This was clearly much more intrusive than a brief investigatory stop which may be justified by reasonable suspicion. Such a full-custody detention clearly amounted to a de facto arrest. See Hayes v. Florida, 470 U.S. 811, 815–16 (1985); United States v. Place, 462 U.S. 696, 709–10 (1983); United States v. Cochrane, 702 F.3d 334, 340 (6th Cir. 2012) (“A valid Terry stop must be ‘limited in scope and duration.’ To be limited in scope, ‘the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.’ To be limited in duration, ‘an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’”); Hoover, 682 F.3d at 498–99. Plaintiff’s Response as to this argument is well stated and well taken. (Dkt. 100 at 19–22.)

This logic may be relevant to the incident we mentioned earlier this week involving cyber-security expert Chris Roberts, who was detained and interrogated for four hours after a flight he was on arrived in Buffalo, New York.

Third, Judge Berg properly rejected the defendants’ attempt to play a “because terrorism” or “because 9/11” get-out-of-liability-free trump card:

The WCAA [Wayne County Airport Authority] Defendants do not directly articulate a separate argument regarding whether the alleged violated rights are clearly established, but one pair of facts that they appear to find important to the review of the alleged violations is that “the circumstances involved suspicious activity aboard an aircraft on the tenth anniversary of the September 11, 2001 terrorist attacks . . . on a flight bound for the Detroit Metro airport, which had been the intended target of a bombing less than two years earlier.”

“It is not necessary to have ‘a case directly on point’ for a right to be ‘clearly established.’ It is sufficient that existing precedent place the question ‘beyond debate.’” Nelms v. Wellington Way Apartments, LLC, 513 F. App’x 541, 547 (6th Cir. 2013) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011); citing Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“officials can still be on notice that their conduct violates established law even in novel factual circumstances”)).

Under the applicable standard, “conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” al-Kidd, 131 S. Ct. at 2083 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Plaintiff’s complaint meets this standard.

The fact that the events occurred on the tenth anniversary of September 11th, on a flight bound for a city previously targeted for a terrorist attack, does not absolve the WCAA Defendants, or any law enforcement officers, of their responsibility to conduct their police work in compliance with the United States Constitution. Under the Fourth Amendment to the Constitution, a full-custodial arrest, and a warrantless strip-search of a person in temporary detention, are unreasonable in the absence of probable cause. As of yet, there is no “suspected terrorist activity exception” to the probable cause requirement of the Fourth Amendment. The Court declines to sacrifice these principles of liberty to the cause of hyper-vigilance.

Based on the Plaintiff’s allegations, which are assumed to be true for the purpose of deciding this motion, the unlawfulness of the WCAA Defendants’ actions was apparent “in the light of pre-existing law.” Risbridger v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).

We’re pleased to have this now be even more clearly established law than it already was, and hope that at least some government, airline, and airport personnel take note.