Judge Rules That Suspects Cannot Be Detained Because of Ethnicity
The New York Times
By LIZ ROBBINS
November 24, 2008
A federal judge in Brooklyn ruled on Monday that the United States government could not use ethnicity as justification for detaining two Egyptian-born men who were questioned for four hours after a cross-country flight in 2004.
The two men, Tarik Farag, a former New York City police officer, and Amro Elmasry, who was working in Egypt for General Electric, sued the government, saying the questioning was unjustified. The government said that the men, who were arrested but not charged with any crime, had acted strangely during their flight from San Diego to Kennedy International Airport and that two counterterrorism agents had observed them switching seats, checking their watches often and speaking in Arabic.
The government said that the men’s ethnicity was a factor in deciding to detain them, and argued that it was an acceptable factor.
But Judge Frederic Block of United States District Court in Brooklyn disagreed. In response to the government’s request for a determination without a trial, the judge said there was enough merit for the case to continue. He cited the internment of Japanese-Americans during World War II in saying that the 9/11 terrorist attacks should not justify detaining a suspect based on race.
It was unclear if or how the judge’s ruling — which may be appealed — would affect law enforcement; advocates on both sides of the issue considered the ruling to be significant, even if it was only an initial step in defining the parameters of surveillance in the context of security versus civil rights.
“This case is important because, for the first time, a federal court has squarely rejected the claim that Arabs can be stopped and detained as suspected terrorists because of their race,” said Christopher Dunn, associate legal director of the New York Civil Liberties Union. “Hopefully this will mark a turning point in the ethnic profiling that has pervaded law enforcement in the aftermath of 9/11.”
Judge Block wrote that he understood the way the 9/11 attacks had altered the mind-sets of airline passengers and necessitated strict enforcement of security. Yet he cautioned that “fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.”
Robert Nardoza, a spokesman for the United States attorney’s office in the Eastern District of New York, said it was reviewing the ruling, which the judge called the “first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment.”
Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies and a former federal prosecutor, said the ruling “sharpens a question that needs to be addressed: What is the proper consideration of factors like ethnicity in questions of surveillance?
“The police officers want to know what the rules are. It may turn out to be bad to the American people if it tells them to do something that is counter to common sense.” Common sense, Mr. McCarthy said, dictated that the police should be able to take race and ethnicity into account in surveillance.
Judge Block said that “it is beyond question that perceived ethnicity alone cannot give rise to reasonable suspicion or probable cause.” He added, “Otherwise, officers would be entitled to qualified immunity for arresting airline passengers solely for conversing in their native language.”
In this case, Judge Block also dismissed the government’s other reasons for putting the plaintiffs under legal arrest, which included the men’s switching seats to be closer to each other on the airplane, talking loudly in Arabic and erasing phone numbers on a cellphone upon landing.
He wrote that “the two men were met at the gate when the plane landed by at least 10 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.”
“There was just no reason for the arrest,” said Anthony C. Ofodile, the lawyer for Mr. Farag, who was 36 at the time, and Mr. Elmasry, who was 37. “No crime was committed; they did not suspect that any crime was being committed for an arrest. If they wanted to monitor them, they could have done that without putting them through the trouble they put them through at the airport.”
Mr. Farag worked as a correction officer for the United States Bureau of Prisons after leaving the Police Department. Mr. Elmasry worked for General Electric in Egypt and had a valid United States visa.
“I am happy that they agreed with us that people cannot just be arrested based on their ethnic background because 9/11 happened,” Mr. Ofodile said. “I expect that there will be an appeal, but we are prepared to defend it. I have not lost any case on appeal that I prevailed in before.”