On October 12, 2017, nine passengers of a domestic flight sued the U.S. Department of Homeland Security (DHS) after Customs and Border Protection (CBP) officers asked to see every passenger’s identification prior to deplaning. The plaintiffs brought this challenge pursuant to the Administrative Procedure Act (APA) and Declaratory Judgment Act, and alleged that the defendants violated the passengers’ Fourth Amendment rights against unreasonable search and seizure, as well as the APA. Represented by the ACLU and the private law firm Covington & Burling, the plaintiffs sought declaratory relief, as well as an injunction restraining the defendants from further such searches and seizures. The suit was brought in the U.S. District Court for the Eastern District of New York.

The complaint asserted that on February 22, 2017, at the request of U.S. Immigration and Customs Enforcement (ICE), CBP officers stopped and searched every passenger on the domestic Delta Airlines flight. Prior to deplaning at New York City’s JFK Airport, CBP officers required all passengers to provide identification. The plaintiffs—all of who were passengers from the flight—stated that the passengers understood they had no option but to comply. Indeed, CBP officers blocked the airplane exit. The plaintiffs argued that the officers had no warrant for the search, nor probable cause that any passenger had committed a crime or reasonable suspicion to justify investigation. The plaintiffs did not consent to any search or seizure. The plaintiffs described the search as frightening and upsetting, and described the officers’ behavior as coercive.

According to the complaint, CBP officers asserted that the incident was part of their routine practice. After media reports on the incident, the complaint indicated that CBP further added that the investigation was part of a search for a particular individual subject to removal from the U.S. The plaintiffs argued, however, that CBP still had not provided a reason for searching every passenger on the flight, especially considering it could have just relied on the flight manifest (passenger list).

The case was assigned to Judge Nicholas G. Garaufis on October 12, 2017.

On January 16, 2018, the defendants moved to stay discovery pending their anticipated motion to dismiss, a request which Magistrate Judge Vera M. Scanlon denied on January 25. On March 9, the defendants filed their motion to dismiss for lack of jurisdiction and for failure to state a claim. Though the court ordered the defendants to comply with discovery orders, that fall, the defendants moved to stay discovery pending the motion to dismiss, among other discovery disputes litigated that year. On December 13, 2018, the court denied the defendants' motion to dismiss. The court found that the plaintiffs had standing to sue because the defendants' conduct was part of an alleged widespread practice, which increased the plaintiffs' chances of being searched on a future domestic flight. The court also found that the plaintiffs had satisfied the final agency action requirement to bring an APA claim.

The parties continued to litigate discovery through the first half of 2019 until the parties notified the court that they had reach a settlement in July and would file for dismissal by September. On September 30, 2019, the parties filed for dismissal and agreed to settle the case.

Under the terms of the agreement, CBP circulated a new policy directive to ports of entry nationwide clarifying that CBP does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers do seek to conduct document checks of deplaning domestic passengers in the future, they were required to make clear through their words and actions that participation is voluntary and request that airline personnel announce over the airplane’s public address system that participation is voluntary. The officers were also required to provide an unimpeded path for passengers to exit the airplane and explain, if asked, that passengers who decline to participate will face no law enforcement consequences as a result. The settlement also allocated $10,000 in attorneys' fees to the ACLU and $30,000 in fees to Covington & Burling.

The court entered judgment dismissing the case on October 10, 2019. The case is now closed.

Virginia Weeks - 12/07/2017
Virginia Weeks - 01/30/2018
Ava Morgenstern - 05/05/2018
Chelsea Rinnig - 01/12/2020


compress summary