Delta Passengers Win Settlement Barring Involuntary, Suspicionless ID Checks by CBP After Domestic Flights

NEW YORK — U.S. Customs and Border Protection officers cannot detain domestic flight passengers for suspicionless searches, per a settlement agreement nine Delta passengers reached with CBP, the American Civil Liberties Union announced today. The settlement comes in response to a lawsuit filed by the ACLU and Covington & Burling LLP in October 2017 on behalf of the nine passengers. The passengers were held by CBP officers and required to show identity documents before they could deplane their flight from San Francisco to New York’s John F. Kennedy Airport.

The events were widely reported and documented by the passengers on social media. In response to press inquiries, CBP characterized the suspicionless searches and seizures of domestic flight passengers as “routine” and consistent with agency policy.

“This settlement is a win for the Fourth Amendment rights of all travelers on domestic flights,” said Hugh Handeyside and Anna Diakun, attorneys with the ACLU’s National Security Project, in a blog post announcing the settlement. “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.”

Under the settlement agreement, CBP will issue a new policy directive to CBP officers nationwide making clear that they must comply with the Fourth Amendment. The directive also establishes that, contrary to previous CBP assertions, the agency “does not have a policy or routine practice of compelling or requesting that passengers deplaning domestic flights submit to suspicionless document checks.” CBP will also pay to compensate for litigation expenses.

Kelley Amadei, one of the passengers who was held and searched by CBP officers on the flight from San Francisco and a plaintiff in the ACLU’s lawsuit, said: “I felt in the moment like I had no choice but to comply with this police-state tactic. But one of the great things about this country is that we have protections, and when those protections are violated, we can speak up. And sometimes, in cases like this, we get the result we need to protect us and our fellow citizens.”

If CBP officers seek to conduct ID checks on domestic air passengers, the directive provides clear protocols restricting the searches. CBP officers must communicate to all passengers that the searches are voluntary; ask airline personnel to similarly communicate over the plane’s speaker that the searches are voluntary; maintain an unobstructed path for passengers to get off the plane; and make clear if asked that passengers who choose not to show their IDs will not be punished as a result.

“We are pleased to have reached a settlement that recognizes that our clients were wronged by government officials when they exited the plane on February 22, 2017 and that such conduct is not to recur,” said Joshua Picker, an attorney with Covington & Burling LLP.

As the flight was arriving at JFK on the evening of February 22, 2017, the Delta Air Lines flight crew announced at a CBP officer’s request that all passengers would have to show identification to deplane. Agents blocked the plane doorway, forcing passengers to queue inside and delaying their exit as officers stopped them one by one, scrutinized their identification documents, and only then permitted them to pass. The officers never asked for passengers’ consent.

The ACLU then filed suit on behalf of the passengers arguing the government violated their Fourth Amendment rights, and asking the court to block the government from conducting such seizures and searches of domestic passengers. The government moved to dismiss the case, but faced opposition from the court, which ruled in December 2018 that the passengers’ case could move forward.

A video featuring some of the Delta flight passengers discussing their experiences and the settlement can be found here: https://youtu.be/FS3HEb8y8jg.