Technorati Tag: CAIR and Flying Imams.
Thursday, March 15, 2007
CAIR'S LEGAL JIHAD. Now that the flying imams and CAIR have decided to go ahead with their lawsuit, they are using the usual tactics of intimidation. In her latest article, Katherine Kersten--who has followed the story from the beginning here ("Suspicion about imams grows as terror links pile up") and here (The Real Purpose Behind the Imam Publicity Blitz)--writes about the real targets of this bogus lawsuit: unnamed John Does, regular passengers on the plane, with the goal of further intimidation. [Hat tip: Powerline]
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This "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-9/11 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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