About those flying Imams

On Friday of last week, federal Judge Ann Montgomery issued a decision on motions to dismiss in what has been called the "Flying Imams" case. Background can be found here. I have only read very quickly through Judge Montgomery's order, but the length and detail of the opinion demonstrate the thorough analysis she undertook in the case. In the end, she dismissed some of the claims and allowed others to proceed to trial.

Predictably, this upset those Powerline guys.

But reading through the Powerline guy's post, you'd think that uncharted territory of official immunity had been created, that vast precedent had been thrown aside by some activist judge. He's wrong, of course. What he misses first is that there were claims that were dismissed. Judge Montgomery dismissed the false arrest claims, she dismissed the claims against US Airways in their entirety, and she denied the Imams' request for more discovery against US Airways.

What remains is a claim for a pretty standard constitutional tort under the longstanding law in Bivens v. Six Unknown Agents, a 1971 US Supreme Court case. It's a well-accepted legal vehicle for addressing deprivations of constitutional rights by law enforcement, and the Imams now get to present that claim to a jury.

What the law enforcement people had tried to do in their motion to dismiss was to gain immunity from the lawsuit by trying to fit under established immunity or under recently-created immunity granted to people who report suspicious terrorist activity -- people like the paranoid old white couple who freaked out and turned in the Imams. Judge Montgomery held that this didn't protect law enforcement and they were subject to the well-settled law already in place. If she'd ruled the other way, any cop who wanted to get out of a brutality charge or a Bivens lawsuit would simply have to proclaim "I thought he was a terrorist!" to escape liability.

But the Powerline guy tries to get his brain cells moving by next asking: "Reading the opinion, I ask myself: What was law enforcement to do?" The answer is simple. Like any one of thousands of American cops on the job every day who know what they're doing, these officers were to follow the law. We don't detain people when there is no probable cause, but that's what they did. Cops know what is and what is not "probable cause," and to insist that they don't (just because some Powerline guy doesn't) sells law enforcement people short.

And his argument that there was justification because one of them asked for a seat belt extender because "there's always a first time" some object will be used for violent purposes is just plain stupid. By that account, every man with a belt is a potential terrorist who should be arrested and detained.

Judge Montgomery put it best:

But when a law enforcement officer exercises the power of the Sovereign over its citizens, she or he has a responsibility to operate within the bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to that responsibility.