Appeals Court Reminds Law Enforcement That ‘No-Fly’ Doesn’t Mean ‘No Drive’

The “no-fly” list has many problems. Pretty much any fed can “nominate” someone for the list. Pretty much everyone on the list has almost zero chance of getting off it other than by filing a lawsuit. And even though the government has been forced by court decisions to offer a venue for challenges, the federal government is still under no obligation to tell people why they’ve been placed on the list, much less promise to never put them back on it again.

When people have been removed (almost exclusively following lawsuits), they’re simply told they’ve been removed. The only way to find out if they’ve been reinstated is to buy a ticket to ride only to have it denied after they’ve already spent their money and arrived at the airport.

Then there’s the cross-pollination of federal law enforcement databases, which turns people on the “no fly” list into suspected terrorists, even if there’s nothing in the database that supports this implication or any cop’s corresponding inference.

As unjust as this all is, at least there are some limits. Well, maybe one. And maybe one that only applies to this specific incident. But, there’s at least one limit and it’s spelled out by this decision [PDF] handed down by the Eleventh Circuit Appeals Court. And that limitation is this: you can’t stop someone from driving just because they’re not allowed to board a plane. (h/t FourthAmendment.com)

Here’s how this all went down in Georgia, leading to this federal lawsuit:

Georgia State Police officers stopped Amir Meshal, a professional truck driver, for a minor traffic infraction. During the stop, the officers received notice that Meshal was on the FBI’s No Fly List. Despite clear language on the notice instructing the officers not to detain Meshal based on his presence on the list, they handcuffed him and placed him in the back of a patrol car while they sought and waited for guidance from the FBI. While they waited, the officers searched the inside of Meshal’s truck and questioned him about his religion and his international travel. After determining that his truck was free of contraband and receiving the all-clear from the FBI, the officers released Meshal with a warning citation for the original infraction. He was detained for 91 minutes in total.

First, they ignored direct instructions telling the officers not to detain the driver. Then they kept him detained for 91 minutes which, if nothing else, definitely violates the Supreme Court’s Rodriguez decision — the one that says officers cannot prolong traffic stops without the reasonable suspicion to do so.

The State Police officers didn’t have any of that. All they had was a “no fly” hit that came coupled with instructions stating that his mere presence on this list did not justify further detention. And none of that justified the warrantless search of his truck.

And, according to the allegations in the lawsuit, the only reason Meshal was on the FBI’s “no fly” list was because he had refused to become an FBI snitch.

When [Officer] Janufka returned to the patrol car to tell Meshal that “narcotics- and explosives detecting canine teams were on their way,” Meshal asked “if he was being detained because he is on a watchlist.” Janufka responded, “Exactly. So, you know what’s going on?” Meshal then “explained that he had been detained in 2007 in Somalia by Kenyan authorities working with
federal law enforcement agencies, and that he ended up on the No Fly List after refusing the FBI’s requests to work as an informant.” Janufka responded, “This is over my head. I’m getting instructions on what to do.”

Not exactly an improbable allegation! The FBI has been known to do this. A lot. Even if it feels it can’t justify a “no fly” list nomination, agents feel more than comfortable threatening people with deportation or further disruption of their travel plans. That a state officer would feel comfortable detaining someone in contravention of direct instructions otherwise makes it clear anyone the government merely wants to pretend is a terrorist is justification enough for any further violation of their rights.

At the district court level, all involved officers (Janufka, Oglesby, and Wright) were denied qualified immunity for this prolonged, suspicionless detention of Meshal, as well as for the completely unjustified search of his vehicle. They appealed. And the 11th Circuit says, too bad. Maybe don’t violate rights if you don’t like being sued.

The court first cites the Rodriguez decision in response to the officers’ arguments that the stop was not “unreasonably” prolonged. It also addresses their claim that detaining Meshal was necessary, even though the original stop was (allegedly) for him following another driver too closely.

Neither of these arguments persuades us. First, the officers’ call to the FBI was not an ordinary inquiry incident to the traffic stop for following another vehicle too closely and was not plausibly related to the mission of that stop. Second, the officers lacked an independent basis to extend the traffic stop because they cannot point to specific and articulable facts in the allegations before us that provide anything more than an inchoate and unparticularized suspicion or hunch that Meshal was involved in some kind of terrorist activity.

As for the claim that it was the FBI’s fault the detention took 90 minutes due to officers waiting for a return call from the agency (after ignoring the agency’s direct instructions not to detain the driver), the court is even less sympathetic. An extended stop can’t be justified just because officers chose to involve an outside agency.

The officers maintain that the length of the detention was dictated by the timing of the FBI’s response and therefore justified. But what if the FBI had taken two hours to respond? Or six hours? Or a whole day? It cannot be that any length of detention was permissible until the officers received an all-clear from the FBI. Our conclusion that the 91-minute traffic stop went beyond the permissible scope abs nt reasonable suspicion of illegal activity is bolstered by Meshal’s allegation that the NCIC notice directed the officers not to detain him based on the No Fly List and to call after the traffic stop was over.

Driving the point home, the Appeals Court says all of this is stuff officers should know — so clearly established they can’t plausibly claim they weren’t “on notice” that detaining someone on a no fly list (much less searching his truck) for driving isn’t acceptable under the US Constitution.

Here, based on the facts as alleged in the complaint, a reasonable police officer could not have believed that Meshal’s long-ago arrest for driving with a suspended license, his delivery trip to Miami, and his mere presence on the No Fly List were sufficient to detain him for more than an hour and a half. This is especially true given the alleged numerous, explicit warnings in the same NCIC notice that flagged Meshal’s no-fly status. As the district court aptly put it, “[t]he Complaint plausibly allege[d] that the officers merely equated Meshal’s presence on the list to ambiguous criminal activity, which they believed they were at liberty to investigate without regard for Meshal’s constitutionally protected rights.” That belief was not only wrong—it was unreasonable.

Moreover, binding precedent featuring materially similar facts clearly established that the officers violated Meshal’s Fourth Amendment rights by extending the stop, without reasonable suspicion of other criminal activity, beyond the time it took for them to conduct tasks incident to the stop.

The lawsuit will continue. And rights that were always present have been reaffirmed, something that’s going to help plenty of people who have been placed on the FBI’s “no fly” list (as this lawsuit alleges) for purely vindictive reasons. I would expect the state of Georgia to settle soon, rather than just wait around for more precedent curbing officer misconduct to be solidified.