CBP Can’t Detain Domestic Flight Passengers for Refusing Suspicionless ID Checks
In February 2017, two U.S. CBP officers stood on a jet bridge at New York’s JFK Airport to meet Delta Flight 1583 as it taxied to the gate upon arrival from San Francisco. As passengers prepared to deplane, they were told by flight attendants — at the direction of the two officers — that all passengers would have to show identification documents to the officers in order to exit. The passengers were held on the plane as the CBP officers, standing immediately outside the aircraft door, scrutinized each traveler's identification upon exit.
Passengers were confused, nervous, and afraid, and felt they had no choice but to comply. When some passengers asked why they were being held and forced to show identification, the officers provided no justification or explanation. In response to press inquiries, CBP the officers’ actions as “routine” and consistent with agency policy.
The incident generated significant public outcry — and for good reason. The government does not have the authority to detain us on a plane, even briefly, or to require us to show identification documents without reasonable suspicion of wrongdoing. We do not live in a police state, and what CBP did that day was unconstitutional.
Today we’re announcing a settlement agreement to prevent what happened on Flight 1583 from happening again.
%3Ciframe%20allow%3D%22accelerometer%3B%20autoplay%3B%20encrypted-media%3B%20gyroscope%3B%20picture-in-picture%22%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22315%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2FFS3HEb8y8jg%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22https%3A%2F%2Fwww.aclu.org%2Fsites%2Fdefault%2Ffiles%2F2019_07_amadei_thumbnail.jpg%22%20width%3D%22560%22%3E%3C%2Fiframe%3E
Privacy statement. This embed will serve content from youtube.com.
The agreement comes in a lawsuit we filed with Covington & Burling LLP on behalf of nine passengers on Flight 1583. Our clients — who were outraged by the officers’ actions and concerned that something like this would happen again — challenged CBP’s suspicionless detention and as a violation of their Fourth Amendment right to be free from unreasonable searches and seizures. The government moved to dismiss the case, arguing that the document checks were voluntary and likely wouldn’t recur. The court denied the motion and allowed the case to proceed. After taking the depositions of government officials and learning more about what happened with Flight 1583, the parties came to an agreement on terms to settle the case.
As part of the agreement, CBP will circulate a policy directive nationwide clarifying that the agency does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers seek to check identification, the directive outlines clear protocols restricting those checks. Officers must now:
- Make clear through their words and actions that participation in the document checks is voluntary;
- Provide an unimpeded path for passengers to exit the airplane;
- Explain, if asked, that passengers who decline to participate will face no law enforcement consequence as a result; and
- Request that airline personnel announce over the airplane’s public address system that participation is voluntary.
Taken together, these requirements make clear that officers cannot detain domestic flight passengers for suspicionless searches. CBP will recirculate the directive nationwide again in two years.
This settlement is a win for the Fourth Amendment rights of all travelers on domestic flights. It makes clear what should have been obvious to the CBP officers: the Constitution protects passengers deplaning domestic flights just as it protects people on the street or in a car. CBP is bound by those protections, and this settlement helps make sure the agency stays within those bounds.
Although CBP has the authority to stop people arriving from abroad to determine that they are admissible to the United States, that authority does not extend to people arriving on domestic flights. If officers want to check those passengers’ identification documents, they can only do so with the passengers’ consent. And if a passenger does not consent, the officers cannot detain that person, even for a brief period, without reasonable suspicion of a violation of the law.
The settlement agreement also addresses the problems that can arise when officers seek passengers’ “cooperation” in producing identification. Many of the Delta flight passengers were unaware that CBP — or any other police agency — cannot legally compel such checks or detain anyone who declines to “cooperate.” Passengers were understandably intimidated when confronted with uniformed officers demanding identification. For these reasons, the settlement agreement includes the critical requirement that officers make clear through their words and actions that participation is voluntary.
What CBP did to the passengers of Delta Flight 1583 in February 2017 came on the heels of then-White House press secretary Sean Spicer declaring the president wanted to “” of CBP and other immigration police agencies. This settlement is a forceful reminder that, despite the administration’s claims, CBP’s authority is limited — by statute and by the Constitution. We’ll continue to make sure CBP stays within those limits, that the United States remains a nation of laws, and that people have rights that they can — and should — assert when necessary.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.