The Council on American-Islamic Relations, which is representing the imams, held a news conference in Washington, D.C., Tuesday to announce the filing of a discrimination lawsuit against US Airways by the six Islamic religious leaders. The imams were removed from a flight in Minneapolis last November. They say their removal from the flight was based on racism and religious intolerance. – Source
You didn’t have to be a prophet to see this lawsuit coming. The Council on American-Islamic Relations will have you believe these 6 “religous leaders” were persecuted because of American stereotypes and intolerance. The main stream media will accomodate them in relaying that story throughout the trial, and will undoubtedly ignore certain facts. The Washington Times ran an editorial when this incident first occurred regarding some of the facts of this case:
Passengers and flight attendants told law-enforcement officials the imams switched from their assigned seats to a pattern associated with the September 11 terrorist attacks and also found in probes of U.S. security since the attacks — two in the front row first-class, two in the middle of the plane on the exit aisle and two in the rear of the cabin. “That would alarm me,†said a federal air marshal who asked to remain anonymous. “They now control all of the entry and exit routes to the plane.†A pilot from another airline said: “That behavior has been identified as a terrorist probe in the airline industry.†The pilot with another airline who talked to The Washington Times on condition of anonymity, said he would have made the same call as the US Airways pilot. “If any group of passengers is commingling in the terminal and didn’t sit in their assigned seats or with each other, I would stop everything and investigate until they could provide me with a reason they did not sit in their assigned seats.â€
Now let’s overlook the fact that these were Muslim men, who had previously been heard praying to “Allahâ€, and pretend for a moment they were middle class caucasian men. Is it reasonable to believe that 6 men who knew each other, were coming from the same event, and flying to the same city, would have gone out of their way to not sit together, unless there were an alterior motive? Obviously that in itself is a bit suspicious, but let’s move on shall we?
Three of the men asked for seat-belt extenders, although two flight attendants told police the men were not oversized. One flight attendant told police she “found this unsettling, as crew knew about the six [passengers] on board and where they were sitting.†Rather than attach the extensions, the men placed the straps and buckles on the cabin floor, the flight attendant said.
Hmmmm asking for ’straps and buckles’ without having the intention of using them for their desired purpose. Seem a little suspicous? OF COURSE IT DOES! They also were reportably overheard prior to boarding the airplane having a political conversation in which they condemned America, while praising Bin Laden. Put this all together and ask yourself, if you were a passanger on this flight, would you be even a little nervous about flying with these 6 men? I think it is important to point out, that although these 6 men did not break any laws, it is very possible they were testing limits. Testing the system to find out if they could indeed get away with sitting in unassigned seats in an effort to block access to key parts of an airplane. Testing the airlines to find out if they would indeed give seatbelt extenders (which are described as straps with a buckle) to 3 men who obviously have no need for them. I have little doubt that these 6 men proved much threat to the US Airways flight in question, however as any good soldier will tell you, the most important part of any attack is good recon. I truly believe these 6 men did not have good intentions when boarding this flight. Wether this was indeed a recon mission which would be used to gather inteligence for a future mission, or it was simply a political ploy. It is completely possible their motive for acting suspiciously was because they wanted to get thrown off the plane in order to have grounds for a lawsuit later. This lawsuit, regardless of the outcome, will only have a negative affect on the security of our airports. Fear of lawsuits has been a driving force in coporate policy, and this will be no exception. I would not be surprised if within the next year some airlines have policies in place which will prevent the Captain from removing any passanger unless that person broke a law. (Cue liberal ranting that this should always be the case) Fact of the matter is, if our airports, and our Country as a whole are to be safe, suspicous behavior does need to be investigated. A people that values its privileges above its principles soon loses both. ~Dwight D. Eisenhower, first inaugural address, 20 January 1953
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Crossposted from Constitutionally Right
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Follow-up comment rss or Leave a TrackbackThis “Flying Imam” case has risen to the headlines, even qualifying for a panel debate segment on the FOX News channel.
Many people believe this is an attempt (deliberately staged or otherwise) to bully ordinary passengers into keeping quiet and intimidate airlines & government agencies from acting prudently to ensure passenger safety. Some see it as a case of civil rights claims run amuck by defiantly arrogant & seditious individuals hiding behind religion, while others see it as a worthy struggle to preserve religious freedom and protect against post-p/11 discrimination.
Whether either interpretation is accurate or not, I’d like to offer a light in the darkness generated by the media coverage surrounding this story.
Focusing on the salient legal issues in this case, I’ll argue that it will be tossed out of court in the pretrial stages, and that ordinary people have nothing to fear (namely, lawsuits) if they report suspicious activity such as this.
The remaining segment of my post is somewhat lengthy & tedious, but if you’re interested in seeing how this case may never leave the runway, read on.
It will be very difficult for this case to survive the preliminary stages of litigation and, in all likelihood, will be dismissed. Several rulings in recent federal cases similar to this one ended in defeat for the plaintiffs when the judges tossed them out on summary judgment.
As for the individual passengers (the “John Doe’s”) named in the lawsuit, it’s likely they will be immune from any liability because their actions are protected under a qualified privilege for anyone who, in good faith, makes a report of suspicious activity to the police.
And as for this case having a chilling effect on others in the future & discouraging them from reporting suspicious behavior for fear of being sued & the high cost of going to court to defend against such claims, their attorneys can be paid by the losing side based on state anti-SLAPP laws and laws which award costs to the prevailing party, as well as those that assess attorney’s fees against someone for filing frivolous lawsuits.
In Al-Qudahi’een v. American West Airlines, Inc., 267 F.2d 841 (S.D. Ohio 2003), the court dismissed a lawsuit after finding the airline was immune from liability under the Federal Aviation Act, 49 U.S.C. § 44902(b). Part of that Act gives airline personnel broad discretion to remove or refuse service to passengers for safety reasons. This will likely be the silver-bullet that shoots the “Flying Imam” case right off the tarmac.
During the boarding process the plaintiff, Mr. Al-Qudhai’een, ignored the flight attendant’s instructions to remain seated, claiming he wanted to sit next to his Saudi traveling companion. Once in flight, although assigned a seat in the economy section, he walked to the first class section, tried to open the cockpit door and attempted to use the forward lavatory. After being told that the forward lavatory was for first class passengers, he went to the aft lavatory. After returning to his seat, he asked a flight attendant several questions about the duration of the Ohio layover and whether they would be on the same aircraft to D.C. Relying entirely on conversations with the flight attendant, the captain decided that while on the Ohio layover, both passengers would be deplaned for questioning. Upon arrival in Ohio, they were escorted off the plane in handcuffs and interrogated for four hours by law enforcement including the FBI. Subsequently, when determined not to be a threat, they were released. America West apologized to them and upgraded them to first class for the trip to D.C.
Relying on other federal case precedents, the court evaluated the air carrier’s decision and made an objective assessment that included all circumstances surrounding the decision, the limited facts known at the time, the potential time constraints under which the decision was made and the general security climate in which the events occurred. Moreover, it emphasized that the cabin crew did not need to investigate the situation and could rely solely on the information provided to them by passengers and other coworkers.
The court found that the captain’s decision was not arbitrary or capricious (a legal standard higher than mere negligence) and ruled against the plaintiffs.
Just recently, in Dasrath v. Continental Airlines, Inc., 467 F.Supp2d 341 (D. N.J. 2006), the plaintiff sued after being removed from the flight prior to its departure. The court found the airline’s decision to be justified under the circumstances and immune from any liability, dismissing the case on summary judgment.
Weighing its decision, the court noted that the case implicated two extraordinarily important public policy concerns: 1) the right of all persons not to be discriminated against on account of their race or nationality, and 2) the need to protect the flying public from sabotage of aircraft in flight. Again, as in the case above, the court noted that a carrier’s discretion is protected if it’s exercised in good faith and for a rational reason.
The court also noted that the decisions at issue were made in an atmosphere pervaded by the fears and uncertainties arising from the events of 9/11 and the shoe-bomber’s failed attempt to blow up an aircraft in flight. While those events don’t give people a license to discriminate, they are still highly relevant when examining the overall setting in which the present incident took place. In other words, they can’t be the only basis for detaining or removing a passenger but they aren’t ignored either.
Most significantly, the judge noted that the inquiry isn’t solely about what happened, it’s about what the airline crew reasonably believed happened. If they have a reasonable basis to believe someone is a threat, then they’re immune from liability even if, in reality, they’re not.
And, as in the case above, negligence is not the standard – it’s whether the airline’s actions were arbitrary and capricious (something slightly higher than negligence, and one that’s more lenient for the airlines).
In closing, the court said: “It’s truly unfortunate that persons such as Mr. Dasrath are seriously inconvenienced in the interests of flight security. It is also unfortunate that flight crews and airlines must be put to such major efforts to establish the reasonableness of their decisions. These are burdens that the nature of the times imposes upon us.”
As for the passengers who are being sued as “John Doe’s” (if they’re ever identified and hauled into court by the Imams), they’re also immune from any liability. The police reporting privilege protects people from defamation lawsuits over false statements of facts which are made in good faith, but not those made with malice. This qualified privilege allows people to report suspicious activity without the fear of being sued later for making the allegations.
Minnesota, the state where this case arose, recognizes this concept and federal courts will apply it there accordingly. Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554 (Minn. App. 1994) (qualified privilege for good-faith reports of suspected criminal activity made to the police would serve the public interest, despite the risk that some reports might be defamatory; the potential harm suffered by one accused of criminal activity is minimal when no charges are filed; society has stronger interest than the accused in encouraging citizens to report suspected criminal activity); Kenney v. Scripps Howard Broadcasting Co., 259 F.3d 922 (8th Cir. 2001) (applying state qualified privilege doctrine); Smock v. Nolan, 361 F.3d 367 (7th Cir. 2004) (same); Willis v. Centennial, Inc., 2004 WL 229086 (Feb. 4, 2004 D. Minn.) (applying police report privilege in federal case); Shred-It-USA, Inc. v. Mobile Data Shred, 222 F.Supp.2d 376 (S.D. N.Y. 2002) (statements made to the police in a reasonable manner and for a proper purpose are entitled to a qualified privilege).
Lastly, when the plaintiffs in this case lose their lawsuit they can be forced to pay the attorney’s fees of those passengers they hauled into court as defendants. This helps to avoid a chilling effect which might prevent others from reporting suspicious activity in the future, for fear of incurring huge legal fees just to defend against such lawsuits.
There are several possible avenues for awarding such fees. Although the “Flying Imam” case was filed in a Minnesota federal court, state law can be applied in addition to federal law because the case involves diversity jurisdiction (i.e. – U.S. Airways is based out of Arizona, the incident took place in Minnesota, and the plaintiffs are residents of different states):
1) the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988; Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978) (district courts are authorized to award attorney’s fees to a prevailing defendant in civil rights cases when the action is unreasonable, frivolous, meritless, or without foundation, or when the plaintiff continues to litigate after it clearly becomes so); Forest Park II v. Hadley, 403 F.3d 1052 (8th Cir. 2005); or
2) the anti-SLAPP statute, Minn. Stat. § 554.01 et seq; Marchant Inv. & Management Co., Inc. v. St. Anthony West Neighborhood Organization, Inc., 694 N.W.2d 92 (Minn. App. 2005) (affirming dismissal of defamation lawsuit & award of attorney fees); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (applying state anti-SLAPP law to federal case); or
3) Minn. Stat. § 549.211 and Minn. R. Civ. P. 11 which allow a respondent to recover all the funds they spent defending against a frivolous lawsuit. Johnson v. Johnson, 726 N.W.2d 516 (Minn. App. 2007); Hilton Hotels Corp. v. Banov, 899 F.2d 40 (D.C. Cir. 1990) (awarding attorney fees as sanctions in frivolous defamation lawsuit).
Also, Baltimore Orioles Inc. v. Major League Baseball Players Ass’n., 805 F.2d 663, 681 (7th Cir. 1986) (applying the substantive law of the forum state in federal case with diversity jurisdiction).
Court costs (as distinguished from attorney fees) are routinely paid by the losing party unless the court directs otherwise. Fed. R. Civ. P. 54(d)(1); In re Derailment Cases, 417 F.3d 840 (8th Cir. 2005) (“A prevailing party is presumptively entitled to recover all of its costs.”).
One case which is particularly relevant in this area to the “Flying Imam” lawsuit is Davisson v. Engelke, 1997 WL 585818 (Sept. 23, 1997 Minn. App. Ct.). In that case, the plaintiff sued a person who reported them to the police for engaging in suspicious activity in their neighborhood. The trial court dismissed the case and awarded attorney fees to the respondent, stating that in eighteen years on the bench, Davisson’s lawsuit was the most “frivolous” and “baseless” lawsuit she had ever seen.
On appeal, the appellate court stated: “Only after the police investigation began did Engelke learn that the unknown individual he reported seeing was Davisson. Engelke acted properly, as any citizen may, in calling to the attention of law enforcement suspicious conduct that he observed in his neighborhood. The ultimate determination of what is or is not criminal conduct is for the prosecuting authorities, and finally the courts. Engelke could make the statements he did without having to sweat out whether or not there would be a later criminal conviction.”
The court also relied on the qualified police reporting privilege discussed above, and found that malice could not exist as a matter of law because the person making the report didn’t know Davisson before the incident. “Engelke did not know Davisson and the two men were complete strangers. There is no evidence that Engelke was motivated by anything except his concern about suspicious activity occurring in his neighborhood. There is no evidence either in the record or alleged by Davisson on appeal that could support a finding that Engelke acted with actual malice.”
The court upheld the judge’s decision to impose attorney’s fees because there was no objectively reasonable basis for Davisson to allege that Engelke defamed him with malice (i.e. – the lawsuit was frivolous).
Not only did the plaintiff get stuck with paying the respondent’s trial court costs and attorney’s fees, he got stuck paying an additional $12,000 in appellate fees as well. Dillon v. Brown County, 380 F.3d 360 (8th Cir. 2004) (a prevailing defendant may recover fees if the plaintiff’s suit was frivolous, unreasonable, or groundless).
Bottom line: This “Flying Imam” case appears destined to crash and burn like the other cases before it, and they’ll only make it more expensive for themselves if they force these passengers into court along with the airline.
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