Legal Case Summary

The advisement next matter is Georgia versus real and the city floor of here your in this case, I'd like to say three minutes for rebuttal. The district court's denial of qualified immunity in this case was based on two basic errors. First, I think the district court failed to apply the Supreme Court's clear holding in equal that an individual bivine's defendant can only be held liable for his or her individual conduct as the Supreme Court made clear there is no precarious liability and supervisory liability is a misnomer in this context. And so the district court really lumped together both the individual defendants and the corporate defendants and the conduct of each of these defendants. So the police got limped in with the federal actors and the federal police actors, reviewed as a single detentioners single force, that's which I would like to say. And then I think it attributed to them the conduct of the Philadelphia police

. And if we can look at them one by one, if you look at the first two TSA screeners, as you know, the first one asks Mr. George to step into an area, a glass office area, the second one swabs the cell phone and that's it. And we're talking about 20 minutes to 30 minutes there. So just to be clear, the first two TSA defendants that he has sued are the line level screeners who screened him once he has been diverted for additional scrutiny. And he concedes that he does not challenge the propriety of his having been selected for additional scrutiny

. Sure. But isn't it plausible? In fact, I want to ask you, in your opening brief, you say plaintiff has offered no allegations that support a plausible inference that the police operated as agents of the individual TSA employees or the JTTF employees. Is it plausible that the supervisor of the two original TSA screeners arrived because they called their supervisor? Absolutely. Is it plausible that the police show up? Because the TSA calls the police. Is it not not a plot that for the same reason that it's plausible to say the TSA supervisor arrives? It's plausible that the police arrive because the TSA calls them and says come

. Absolutely, Your Honor. But I want to be very clear here that TSA is not the defendant here. We are talking about two screeners. And we don't know whether one of those screeners called the police, whether another TSA official called the police, was no business. Well, sure

. There's some factual issue about which of the three or all three in agreement together contact the police. Or whether someone else entirely did it because they could have brought to another two-prone. A factual question. Well, with respect, Your Honor, it is the plaintiff's burden to come here and show that any of those individuals is somehow tied into some of the property. Well, that would be

. That's not a mean problem. And I also, if I may, Your Honor, I don't think there is support in the precedent or common sense for the notion that when an individual TSA screener sees things in a search that are of a reasonable concern and your honors are aware of what those items were. They were extremely unusual in a context that could reasonably give rise to suspicion that they can't call a supervisor or that the Fourth Amendment bars them from calling police. Nobody suggests that. What we are asking is, or at least I am, I don't want to treat anybody else

. Sure. You say there's just no plausible way to link the TSA to what the Philadelphia Police did. And I'm asking you whether it isn't entirely plausible to believe that the police came and took Mr. George away because the TSA said, come get this guy, we've got concerns. They didn't come and put the man in Cuffs and perp walk him through the airport randomly

. They came because somebody called them and isn't implausible to believe it was the three, were one of the three, were all three together, who made that call because they wanted him detained for further questioning. Well, you're on, I will say a couple of things that I made. First, TSA works very closely with the law enforcement officials for a variety of different purposes, completely apart from detention. And I think certainly there is no Fourth Amendment bar or at least not within this court's clear president that would prohibit a line level screener who has questions from asking a police officer to come and ask some additional questions. And I think there is no way based on these factual allegations to distinguish between seeking the assistance of a police officer to ask some more questions

. Does anything at the scene get said? The facts as alleged are that the officer comes, Cuffs, Mr. George, hands behind his back, Cuffs and walks him away, and not a word is exchanged. Now, I suppose you could say the TSA is so shocked, it's speechless. The three people there can't even talk. They're so surprised

. Or you could say they say nothing because that's exactly what they expect. They expect that the police are going to come and they expect they're going to walk them out and take them someplace different in Cuffs because that's their intent. Take this mail, I'm not saying it's ill, it's an intent that's ill-motivated, but it happens because that's what they intend to have happen. The question isn't whether they're allowed to cooperate with the police. You started your argument, Mr

. Wingo by saying, and you put it in your brief, that you've got to look at these people separately and there's no plausible way to connect the TSA actors with the police actors. And I'm pressing you on that because it seems less plausible to me that the police show up randomly in Cuffham and Wachemoy and it'll be says anything, then it is that he comes, the police officer does that because that's what the TSA tells him to do. Well, and your honor, if I may, I'm not disagreeing that there is some basis to thank someone within TSA called the police, but the idea that simply asking the police for assistance, we are going to infer from that that that was a request to handcuff Mr. George to detain him. But then that gets into the second part of this. Then why shouldn't we have this cover here? This is not the normal qualified immunity case because here, because it's a suit both against individuals as well as the government. I mean, to the extent the qualified immunity would shield them from going through the discovery and it would usually if they qualify for a qualified immunity. The same questions are going to be asked in the context of the suit of the against the government, whether or not they're qualified immunity. Why shouldn't we allow the discovery to proceed? To see whether or not the plaintiffs can establish enough of a nexus to get an agency relationship between the TSA screeners and the photo for the police. Because ultimately, your honor, it is the plan of spurding to establish that nexus in the pleading as against individuals

. Then why shouldn't we have this cover here? This is not the normal qualified immunity case because here, because it's a suit both against individuals as well as the government. I mean, to the extent the qualified immunity would shield them from going through the discovery and it would usually if they qualify for a qualified immunity. The same questions are going to be asked in the context of the suit of the against the government, whether or not they're qualified immunity. Why shouldn't we allow the discovery to proceed? To see whether or not the plaintiffs can establish enough of a nexus to get an agency relationship between the TSA screeners and the photo for the police. Because ultimately, your honor, it is the plan of spurding to establish that nexus in the pleading as against individuals. And we do not disagree that the claims against the United States remain in the case, and that there will be discovery on those claims. We have not sought interluxitorate review. But to move forward with discovery against the individual TSA screeners would require the court to assume that simply because TSA screeners initially questioned and searched Mr. George and then made a phone call that the fair and reasonable plausible inference from that is that they requested the Philadelphia police to come not only to question him or perhaps to be present because if the decision was made not to allow him to board, someone would need to escort him out of that screening area. But instead that they requested that the Philadelphia police come, detain him for four hours and cut him

. And we do not disagree that the claims against the United States remain in the case, and that there will be discovery on those claims. We have not sought interluxitorate review. But to move forward with discovery against the individual TSA screeners would require the court to assume that simply because TSA screeners initially questioned and searched Mr. George and then made a phone call that the fair and reasonable plausible inference from that is that they requested the Philadelphia police to come not only to question him or perhaps to be present because if the decision was made not to allow him to board, someone would need to escort him out of that screening area. But instead that they requested that the Philadelphia police come, detain him for four hours and cut him. Is that the only place you can go? Do they have to prove that that's the only inference or do they only have to prove it's plausible that the TSA understood whether cuffed or not they were going to detain this man. And that that's I mean short of discovery. I'm not trying to be difficult but I am trying to get you to answer this question. You keep saying there's no basis in this record and I think we're coming back to the question. There's no discovery at this point

. Is that the only place you can go? Do they have to prove that that's the only inference or do they only have to prove it's plausible that the TSA understood whether cuffed or not they were going to detain this man. And that that's I mean short of discovery. I'm not trying to be difficult but I am trying to get you to answer this question. You keep saying there's no basis in this record and I think we're coming back to the question. There's no discovery at this point. All they have to alleged at this point is it's plausible to believe that the detention that occurred because of the Philadelphia police occurred because the TSA wanted the man detained for further questioning. Now they don't have to prove everything that happened was their intent or desire but isn't it enough at the pleading stage that that be a plausible inference? Judge Jordan if I'm if I'm going to answer your question in a slightly different way in order for that to be a basis for discovery in this case this court would need to hold as a matter of fourth amendment law that no TSA official no competent law abiding TSA official could have thought that he was entitled to call the police and ask some questions. The concern here is that what if the timing here is particularly for pictures it seems to me from the point of view of the the plaintiff is not only possible it seems to me likely that you've got the screener's they have the concern at least it seems to me very legitimately and reasonably raised by by the sky and the first 15 to 20 minutes are really inconsequential but beyond that he's held for four or five hours in handcuffs until John Doe Warner Jane Doe John Doe four or John Doe five or Carlton John much of a John Doe's and Jane Doe's arrived it's logical that the screener has said to the photo if you please look we've got some folks who are members of the joint terrorist task force the JTECF folks they can't get here for four or five hours hold them until we can get them down here now if that happened there may well be some kind of relationship that would be relevant to the individual Bipins claim against screeners one and two and three now I don't know if that happened none of us know if that happened but if the same questions will be asked in the context of discovery against the corporate entity here the federal government why not allow that discovery in order to against the individuals who would normally be able to escape it from because of qualified immunity to get at that for a number of reasons John our first you know the Supreme Court in Iqbal and this Court in ASEANO have been very clear that discovery when an individual defendant faces personal liability is quite different from discovery in the in the context of being a critical fact witness so I don't think it is enough to say that discovery will be going forward here I wouldn't differ here but if I may your honor I do not believe and I don't think this Court's decisions establish that the standard under the Fourth Amendment for asking a law enforcement official to come is probable cause so unless you know the theory of liability here is that there was not probable cause to hold him but we are not saying that at most what you can infer from the factual allegations are that the TSA screeners wanted someone additional from the law enforcement community to question why now that's see that is the point at which I think you have a serious disagreement with the other side and which and is precisely the point I will continue to press you on you say that there's there's nothing to indicate that the TSA wanted what followed to happen but in that absence of some discovery I mean let's take it out of the context of this if you're in a case with excessive force and there's an argument about whether somebody a police officer punched somebody or not it's true we're nobody likes to say you don't get qualified immunity right now it deprives you of the benefits of qualified immunity to have to go to discovery perhaps face trial but there's a question of fact about whether you punched this person or not and so we're going to let some discovery go forward and the government kind of accepts that if we have a factual dispute or question about whether when the TSA officers contact the Philadelphia police which it sounds like the government is conceiving is what happened that it didn't occur randomly that the Philadelphia police arrived that there was either by dint of past behavior and understanding that the person would be in lockup until the question could occur or there was a specific request that there be lockup we don't know that but it's not implausible that there was past action that would lead one to believe you're going to detain this guy and that that's something that should be explored what's wrong with that arc of reasoning which I understand to be part and parcel of what's being pressed on us and I hear you just dismissing it saying it's implausible I guess I'm trying to get you to explain to me what's implausible about believing based on the allegation that the TSA contacted the Philadelphia police and they came and they locked them up that that's what the TSA expected because they either asked it or that's how things were done well if I can point to a number of the specific factual allegations that I think are not consistent with the theory that the first two screeners asked the Philadelphia police to detain until the JTTF could come first you know as you know within that number three because number three was engaged I guess in a conversation at the time of the police arrival it's difficult to understand why if the the only phone call that was ever alleged to have been made in this complaint was by John does one and two the first initial the screeners right the first screener's not the supervisor it's alleged that they made a phone call so presumably as a result of that phone call or another phone call by someone else in TSA the police came if we think that they had requested the police to come and detain this man until he could be questioned by JTTF it is not in any way clear why they would have had a supervisor and continued to question him apparently that for the purpose of aviation security because as we know TSA's only role here is to screen people for clearing yeah I'm just not sure that gets you past the discovery issue though and what you're arguing makes sense but it also makes sense that they would have asked the police to come meanwhile supervisor finds out about it and goes there to have a discussion what's my wife if I made judge my key in addition after the Philadelphia police took him into custody into detention as we know his allegations are that they then made a series of phone call to a variety of state and federal entities seeking assistance and that seems to have been entirely what did the assistance have with aviation safety well I have no idea your honor we obviously don't represent well isn't it plausible that they're concerned more from aviation safety to investigation of whether this person had some other type of threat that needed to be investigated and they cause them to then be taken in handcuffs and taking transported to the Philadelphia police department well obviously I don't understand the Philadelphia police departments role to be one of aviation security which is a TSA function I assume they had some law enforcement interest but of course they called both the FBI and also to just say a minute ago that that it would be unusual to think the TSA and the police wouldn't be cooperating if it's I mean there there is a cooperative relationship because of course TSA doesn't serve any law enforcement functions so to the extent that there were concerns that he might pose a risk other than to aviation security yes it would make sense to call the police but we have no formal or legal control over the police in those circumstances and I want to be very clear even if your honor is correct that one could somehow infer or think it was appropriate to have discovery about what the police were told there is no support in the law for holding individual bivons defendants liable for conduct of a separate law enforcement entity even in some sort of informal cooperative rule so I do urge the court to think hard about the purposes of calling a community in this context now they're they're setting aside whether ultimately there may be qualified community and focusing on what the chief judges noted about like the discovery point the point of discovery is that the government's argument that there are no circumstances conceivable let alone ploddle there just no circumstances conceivable where individual TSA employees could be liable for or co-cultable with a constitutional tort committed by the Philadelphia police I think we have two points on that your honor obviously our initial point is that there just are no facts here that would support that I understand you said yes I think we would take the view that the acts of the Philadelphia police where there's no allegation of and no evidence of any kind of formal legal relationship between them no one's acting in a deputized manner so if the TSA supervisor called and said officer Smith come up here will you we've got this guy he's got bomb written on note cards terrorists written on note cards he's carrying around anti-American literature we can't handle him right now we want the terrorism task force people to talk to him lock this guy up we tell somebody can talk to him because we can't handle it would you just take him and lock him up is is it the government's view view of the law that if the Philadelphia police under those circumstances said sure we'll take him to our lockup that that the individual TSA person assuming way all the other things about qualified immunity that might apply that that's not enough to say there could be culpability it is our view that there is no support in the law that a mistaken request to the police to arrest somebody would be a basis for individual bivens liability and death for them mistaken I think you like put it back on the table I'm saying assume away all good faith mistake no reasonable officer take for purposes of this question because I'm trying to get it your your assertion your assertion is short of deputizing the formal deputization there's no way that the TSA officers could be responsible for what happened next that's your assertion right that is in fact our position but I think the court doesn't need to reach it because of our view of the facts and I just would urge the court to to look at what's alleged I mean what what would be required to accept what the district court did here is to read the factual inference the facts in this case just the facts and the inferences to support an inference not only that they ask the police for help but they ask the police to come to detain him and to take him away and hold him for four hours or that somehow simply by asking the force read out the four hours whatever happens afterwards could be held could be attributed to them and I don't think there's any support in the case law for that you say sometimes I think for and we'll take a brief break and then we'll hear from Mr. Is it castlesons that how you found sir morning honors next is the court I'm Zachary Ketson Nelson of the affipoli Nick George you might doesn't sound like it's on maybe you can pull it off a bit or pull it closer to you is that better not a lot better maybe it's just me so I just shout maybe no okay I'll speak I'll get that noise back again sure you won't be able to breathe so that one more so thank you I mean you you you can see that the initial exchange is okay I guess your concern is was it the time the handcuffs are placed on them he's putting detention from that point forward you saying they had to have probable cause to arrest well we certainly say absolutely they need to have probable cause to arrest we we do also though contend that mr. George at the point that the TSA screeners the initial screeners determined he had no weapons or explosives well let's just pursue that let's pursue that so um there in there's no allegation that they ever asked anything about um the books to the materials specifically except for this ridiculous conversation about what language this was held in laden's feet um but are you alleging that he was held then just because of the materials that he was carrying we absolutely are let's say so to what extent would the first amendment protections give way to a fourth amendment security interest in terms of an administrative search let's pursue let's assume for example the rather rather than having what he had to get it legal issue he had a pamphlet that said something like jihad to the American intervals uh in another magazine that had an article in it that said something like the sum of in laden uh was right um something like that our girl you have first amendment right to read that material um probably have a first amendment right to get on the airplane with it but you don't have a fourth amendment guarantee that would keep you from getting interrogated before you get on that plane and to what extent does your first amendment claim become subsumed into your fourth amendment claim why are they separate here so i can answer maybe two ways the first is that the first amendment materials were the basis on which the government chose to detain and arrest mr

. All they have to alleged at this point is it's plausible to believe that the detention that occurred because of the Philadelphia police occurred because the TSA wanted the man detained for further questioning. Now they don't have to prove everything that happened was their intent or desire but isn't it enough at the pleading stage that that be a plausible inference? Judge Jordan if I'm if I'm going to answer your question in a slightly different way in order for that to be a basis for discovery in this case this court would need to hold as a matter of fourth amendment law that no TSA official no competent law abiding TSA official could have thought that he was entitled to call the police and ask some questions. The concern here is that what if the timing here is particularly for pictures it seems to me from the point of view of the the plaintiff is not only possible it seems to me likely that you've got the screener's they have the concern at least it seems to me very legitimately and reasonably raised by by the sky and the first 15 to 20 minutes are really inconsequential but beyond that he's held for four or five hours in handcuffs until John Doe Warner Jane Doe John Doe four or John Doe five or Carlton John much of a John Doe's and Jane Doe's arrived it's logical that the screener has said to the photo if you please look we've got some folks who are members of the joint terrorist task force the JTECF folks they can't get here for four or five hours hold them until we can get them down here now if that happened there may well be some kind of relationship that would be relevant to the individual Bipins claim against screeners one and two and three now I don't know if that happened none of us know if that happened but if the same questions will be asked in the context of discovery against the corporate entity here the federal government why not allow that discovery in order to against the individuals who would normally be able to escape it from because of qualified immunity to get at that for a number of reasons John our first you know the Supreme Court in Iqbal and this Court in ASEANO have been very clear that discovery when an individual defendant faces personal liability is quite different from discovery in the in the context of being a critical fact witness so I don't think it is enough to say that discovery will be going forward here I wouldn't differ here but if I may your honor I do not believe and I don't think this Court's decisions establish that the standard under the Fourth Amendment for asking a law enforcement official to come is probable cause so unless you know the theory of liability here is that there was not probable cause to hold him but we are not saying that at most what you can infer from the factual allegations are that the TSA screeners wanted someone additional from the law enforcement community to question why now that's see that is the point at which I think you have a serious disagreement with the other side and which and is precisely the point I will continue to press you on you say that there's there's nothing to indicate that the TSA wanted what followed to happen but in that absence of some discovery I mean let's take it out of the context of this if you're in a case with excessive force and there's an argument about whether somebody a police officer punched somebody or not it's true we're nobody likes to say you don't get qualified immunity right now it deprives you of the benefits of qualified immunity to have to go to discovery perhaps face trial but there's a question of fact about whether you punched this person or not and so we're going to let some discovery go forward and the government kind of accepts that if we have a factual dispute or question about whether when the TSA officers contact the Philadelphia police which it sounds like the government is conceiving is what happened that it didn't occur randomly that the Philadelphia police arrived that there was either by dint of past behavior and understanding that the person would be in lockup until the question could occur or there was a specific request that there be lockup we don't know that but it's not implausible that there was past action that would lead one to believe you're going to detain this guy and that that's something that should be explored what's wrong with that arc of reasoning which I understand to be part and parcel of what's being pressed on us and I hear you just dismissing it saying it's implausible I guess I'm trying to get you to explain to me what's implausible about believing based on the allegation that the TSA contacted the Philadelphia police and they came and they locked them up that that's what the TSA expected because they either asked it or that's how things were done well if I can point to a number of the specific factual allegations that I think are not consistent with the theory that the first two screeners asked the Philadelphia police to detain until the JTTF could come first you know as you know within that number three because number three was engaged I guess in a conversation at the time of the police arrival it's difficult to understand why if the the only phone call that was ever alleged to have been made in this complaint was by John does one and two the first initial the screeners right the first screener's not the supervisor it's alleged that they made a phone call so presumably as a result of that phone call or another phone call by someone else in TSA the police came if we think that they had requested the police to come and detain this man until he could be questioned by JTTF it is not in any way clear why they would have had a supervisor and continued to question him apparently that for the purpose of aviation security because as we know TSA's only role here is to screen people for clearing yeah I'm just not sure that gets you past the discovery issue though and what you're arguing makes sense but it also makes sense that they would have asked the police to come meanwhile supervisor finds out about it and goes there to have a discussion what's my wife if I made judge my key in addition after the Philadelphia police took him into custody into detention as we know his allegations are that they then made a series of phone call to a variety of state and federal entities seeking assistance and that seems to have been entirely what did the assistance have with aviation safety well I have no idea your honor we obviously don't represent well isn't it plausible that they're concerned more from aviation safety to investigation of whether this person had some other type of threat that needed to be investigated and they cause them to then be taken in handcuffs and taking transported to the Philadelphia police department well obviously I don't understand the Philadelphia police departments role to be one of aviation security which is a TSA function I assume they had some law enforcement interest but of course they called both the FBI and also to just say a minute ago that that it would be unusual to think the TSA and the police wouldn't be cooperating if it's I mean there there is a cooperative relationship because of course TSA doesn't serve any law enforcement functions so to the extent that there were concerns that he might pose a risk other than to aviation security yes it would make sense to call the police but we have no formal or legal control over the police in those circumstances and I want to be very clear even if your honor is correct that one could somehow infer or think it was appropriate to have discovery about what the police were told there is no support in the law for holding individual bivons defendants liable for conduct of a separate law enforcement entity even in some sort of informal cooperative rule so I do urge the court to think hard about the purposes of calling a community in this context now they're they're setting aside whether ultimately there may be qualified community and focusing on what the chief judges noted about like the discovery point the point of discovery is that the government's argument that there are no circumstances conceivable let alone ploddle there just no circumstances conceivable where individual TSA employees could be liable for or co-cultable with a constitutional tort committed by the Philadelphia police I think we have two points on that your honor obviously our initial point is that there just are no facts here that would support that I understand you said yes I think we would take the view that the acts of the Philadelphia police where there's no allegation of and no evidence of any kind of formal legal relationship between them no one's acting in a deputized manner so if the TSA supervisor called and said officer Smith come up here will you we've got this guy he's got bomb written on note cards terrorists written on note cards he's carrying around anti-American literature we can't handle him right now we want the terrorism task force people to talk to him lock this guy up we tell somebody can talk to him because we can't handle it would you just take him and lock him up is is it the government's view view of the law that if the Philadelphia police under those circumstances said sure we'll take him to our lockup that that the individual TSA person assuming way all the other things about qualified immunity that might apply that that's not enough to say there could be culpability it is our view that there is no support in the law that a mistaken request to the police to arrest somebody would be a basis for individual bivens liability and death for them mistaken I think you like put it back on the table I'm saying assume away all good faith mistake no reasonable officer take for purposes of this question because I'm trying to get it your your assertion your assertion is short of deputizing the formal deputization there's no way that the TSA officers could be responsible for what happened next that's your assertion right that is in fact our position but I think the court doesn't need to reach it because of our view of the facts and I just would urge the court to to look at what's alleged I mean what what would be required to accept what the district court did here is to read the factual inference the facts in this case just the facts and the inferences to support an inference not only that they ask the police for help but they ask the police to come to detain him and to take him away and hold him for four hours or that somehow simply by asking the force read out the four hours whatever happens afterwards could be held could be attributed to them and I don't think there's any support in the case law for that you say sometimes I think for and we'll take a brief break and then we'll hear from Mr. Is it castlesons that how you found sir morning honors next is the court I'm Zachary Ketson Nelson of the affipoli Nick George you might doesn't sound like it's on maybe you can pull it off a bit or pull it closer to you is that better not a lot better maybe it's just me so I just shout maybe no okay I'll speak I'll get that noise back again sure you won't be able to breathe so that one more so thank you I mean you you you can see that the initial exchange is okay I guess your concern is was it the time the handcuffs are placed on them he's putting detention from that point forward you saying they had to have probable cause to arrest well we certainly say absolutely they need to have probable cause to arrest we we do also though contend that mr. George at the point that the TSA screeners the initial screeners determined he had no weapons or explosives well let's just pursue that let's pursue that so um there in there's no allegation that they ever asked anything about um the books to the materials specifically except for this ridiculous conversation about what language this was held in laden's feet um but are you alleging that he was held then just because of the materials that he was carrying we absolutely are let's say so to what extent would the first amendment protections give way to a fourth amendment security interest in terms of an administrative search let's pursue let's assume for example the rather rather than having what he had to get it legal issue he had a pamphlet that said something like jihad to the American intervals uh in another magazine that had an article in it that said something like the sum of in laden uh was right um something like that our girl you have first amendment right to read that material um probably have a first amendment right to get on the airplane with it but you don't have a fourth amendment guarantee that would keep you from getting interrogated before you get on that plane and to what extent does your first amendment claim become subsumed into your fourth amendment claim why are they separate here so i can answer maybe two ways the first is that the first amendment materials were the basis on which the government chose to detain and arrest mr. George and you but you can see that the detention is okay even though the first amendment is there initial detention the initial secondary screening we contest is okay but when the secondary screen under clearly established law in this circuit in heartwell the night circuit in al-Qa'a and marques airport checkpoint cases they clearly delineated the limits of a warrant list airport search it's for weapons and explosives well why is that and these are not only presented in either of those cases uh a ka'a just talked about consent not really entering into the equation they're all why would the fourth amendment administrative search in their heart will be limited to just weapons or explosives why wouldn't there also be a corresponding duty to determine whether that this is someone who is just going to be a danger if he or she gets unbought that airplane i think the the purpose behind allowing that carve out from mutual fourth amendment requirements of at least reasonable suspicion to detain somebody is the courts have held their need to be neutral neutrally applied criteria like the car about neutrally applied criteria right but they need to be carefully caverned if the TSA agents have reasonable suspicion based on first amendment materials or otherwise so when you based on your jihadi favorable materials however you want to character right if they have reasonable suspicion we do not object to their detaining with your George so you are they did not know the reason that your your assertion is that that this can't de facto he's got the the note cards with the troubling words on them uh and uh that he's got a passport stamped with travel through the mid east that those things don't give rise to a reasonable suspicion in the terri sense warranting some further limited detention to talk to the man further that's the position you've got that is the position we have it's right okay so at what point is it going to be enough in the view that you advocate for them to say me what if what if instead of just the phrase a single words bomb or terrorist he had a no card that said i'm a terrorist and this is a bomb would you say that's reasonable suspicion potentially absolutely yes we're so it's the fact that bomb and terrorist are on two separate cards that make the difference between it being lawful and unlawful the detention in your view well of course any reasonable suspicion inquiries about the totality of the circumstances and in this instance you had a pack of english arabic flashcards are clearly being used to learn a language there is no nothing in the complaint incidentally that the tsa officials took into account at all his travels they have a session of his passport they're nicked and questioned him on any of the past the travels can we make are we just as we should make inferences that are plausible for your client shouldn't we make reasonable inferences based on what you yourself of alleged if you go through the tsa line and you hand over your passport isn't it perfectly reasonable to believe that they look at the passport there is a read the absolute is possible but at this stage not just leading stage but completely reasonable to believe they look at the document that they're handed if if the government wants to proper alternate explanations that we would argue is issue for discovery and to get to the bottom of the factual issues it's not even reasonable is that a alternate is that an is that a dispute of fact you're are you telling me that you will legend your complaint that nobody ever looked at my passport we as the complaint as we have pleaded in the complaint the cards with a key factor as to why they chose to attain Mr. George let's let's assume from in at the passport did playable the Supreme Court has made clear that you need to consider factors in terms of determining whether or not you've reasonable suspicion you need to use factors that do not describe large numbers of innocent people that they will not be then swept in and potentially detained at random are there large numbers of people showing with passport showing immediate travel through countries known to have terrorist problems and carrying flashcards it's a bomb terror is kidnapping on them in Arabic and English is that is is a is a ruling that that's which gives rise to reasonable suspicion going to sweep up large numbers of innocent people you think well I think terms to travel large numbers of people state department employees journalists professors lots of people travel to the Middle East sure right and so it would sweep up potentially large numbers of folks many of them who may be learning Arabic to try and communicate better to try and learn more about that area of the world as Mr. George was doing so ultimately a suspicion which is reasonable can be dissipated by explanation certainly but is it the contention that you're making that that the fact that you can dissipate a reasonable suspicion with discussion means you don't have reasonable suspicion to start with we're just the point you're focused on or I take it focused on is once that administrative search ended and in your view as I understand that that ended as soon as they looked in his bag the second time and said no gun no bomb that after that it was all bad and and I'm puzzled by that for I think the reasons chief judgment he's quite couldn't you have what if he what if he was carrying a manual that said how to fly a 747 by Muhammad Aqda would that not be the sort of thing it's not a gun it's not a bomb but the sort of thing that would make a reasonable government official say that's a problem I got to talk to this person some more and I'm out of administrative search now I'm into reasonable suspicion it's not a weapon but it gives me the right to hold this person and talk to him I think that's of course a different scenario than we've put in our complaints and we need to be focused here on the facts in this complaint this stage sure but you made a legal argument that only guns only bombs only weapons can justify the sort of further detention that might happen or at least maybe I'm gonna justify can justify a warrantless search you know it's actually a search and detention without reasonable suspicion or probable cost so we're not saying that of course the TSA if they have reasonable suspicion to believe that somebody is is is a threat and there's reasonable suspicion they're about to commit a crime of course right right that the reasonable suspicion in that regard of course they can detain that person for proper question as long as they adhere to is this complex of facts that you will ledge sufficient to give rise to reasonable suspicion we let you know but that tells me because even in Terry where in the reasonable suspicion suspicion in Terry gets you the initial stop and this is and I think that was part of the confusion the district were had this to me is not a Terry stop at all it's an administrative search that we said a heart war and that's a very different focus different inquiry then you have in Terry and all of the cases they're talking about drug screening at our ports it's very different than Guarro and in that line of cases at least in my mind if reasonable suspicion is necessary the reasonable suspicion would not be dissipated just because the person doesn't have a gun or bomb on them there may be reason to follow up with the initial inquiry to find out what have I got here and I don't have anybody who's got a bomb or a gun what exactly am I dealing with to take the truth example what if you'd stop Muhammad Ali and he had a detailed manual on how to apply a 747 you said well they don't have a gun or a bomb guys no problem just kind of let you I hope he was a logger or Kennedy but go ahead and if you're in the exit exit I you've got to be able to answer certain questions in English but otherwise have a seat on the plane and enjoy our sweet and snape with savory snacks as they always say you but that wouldn't make any sense in the context of what justifies an administrative search and yet another problem this is a very long I hope and there'll be a question at the end of the Mr. Castles and I'm sure I concerned with one of the the misfocuses here seems to me is that the whole purpose for the administrative detention administrative search if you will is the balancing of the public interest for security against the private interest and in privacy the fourth member private interest that's very different in the context of administrative airport screening than it is when you're doing a drug trial for pro-frying search as you might have in Guarro because there if you make a mistake the only thing that happens is somebody's getting on the plane with some drugs in their pocket and there'll be some drugs on the street wherever that person is and that's something your society can live with and so you decide well the risk of errors not so great there so you let the person go you can't engage in this kind of screening in this context of the administrative search the balance it seems to me is very very different because the risk it's on the public interest side of that scale is horrendously and exponentially different than the risk is somebody getting through security with five greens or five grams of crack on them it's just no comparison so why would all of the kinds of approaches where you look at reasonable suspicion once you satisfy yourself to the reasonable suspicion you must release the person why would that line of cases play here i did get a question at the end of that but you i understand my concern i do i do absolutely i understand your honest concern and of course we we never disagree that air safety is critical but there are all the cases have held including the heart well case that the fourth amendment continues to apply in this context and so i will i still stand by absolutely that we believe in the administrative search but under the fourth amendment is a strictly reasonable suspicion for absolutely all the circumstances so i would i would i would say even if we presume for the sake of this discussion that they had a reasonable suspicion what happened to mr. george was that he was in fact arrested right handcuffed as you said per block judge georgon through the airport right and put in a jail cell two hours low cell two hours in cuffs in the cell sure he was arrested so there was not probable cause even if you were to presume that they had reasonable suspicion to detain him in the first place and the tsa officials by all by the plausible allegations in the complain of the ones who directed asked for that arrest and here's my here we'll go ahead i was just going to say your answer thank you wrong just to say that the the the the the detention clearly violated mr

. George and you but you can see that the detention is okay even though the first amendment is there initial detention the initial secondary screening we contest is okay but when the secondary screen under clearly established law in this circuit in heartwell the night circuit in al-Qa'a and marques airport checkpoint cases they clearly delineated the limits of a warrant list airport search it's for weapons and explosives well why is that and these are not only presented in either of those cases uh a ka'a just talked about consent not really entering into the equation they're all why would the fourth amendment administrative search in their heart will be limited to just weapons or explosives why wouldn't there also be a corresponding duty to determine whether that this is someone who is just going to be a danger if he or she gets unbought that airplane i think the the purpose behind allowing that carve out from mutual fourth amendment requirements of at least reasonable suspicion to detain somebody is the courts have held their need to be neutral neutrally applied criteria like the car about neutrally applied criteria right but they need to be carefully caverned if the TSA agents have reasonable suspicion based on first amendment materials or otherwise so when you based on your jihadi favorable materials however you want to character right if they have reasonable suspicion we do not object to their detaining with your George so you are they did not know the reason that your your assertion is that that this can't de facto he's got the the note cards with the troubling words on them uh and uh that he's got a passport stamped with travel through the mid east that those things don't give rise to a reasonable suspicion in the terri sense warranting some further limited detention to talk to the man further that's the position you've got that is the position we have it's right okay so at what point is it going to be enough in the view that you advocate for them to say me what if what if instead of just the phrase a single words bomb or terrorist he had a no card that said i'm a terrorist and this is a bomb would you say that's reasonable suspicion potentially absolutely yes we're so it's the fact that bomb and terrorist are on two separate cards that make the difference between it being lawful and unlawful the detention in your view well of course any reasonable suspicion inquiries about the totality of the circumstances and in this instance you had a pack of english arabic flashcards are clearly being used to learn a language there is no nothing in the complaint incidentally that the tsa officials took into account at all his travels they have a session of his passport they're nicked and questioned him on any of the past the travels can we make are we just as we should make inferences that are plausible for your client shouldn't we make reasonable inferences based on what you yourself of alleged if you go through the tsa line and you hand over your passport isn't it perfectly reasonable to believe that they look at the passport there is a read the absolute is possible but at this stage not just leading stage but completely reasonable to believe they look at the document that they're handed if if the government wants to proper alternate explanations that we would argue is issue for discovery and to get to the bottom of the factual issues it's not even reasonable is that a alternate is that an is that a dispute of fact you're are you telling me that you will legend your complaint that nobody ever looked at my passport we as the complaint as we have pleaded in the complaint the cards with a key factor as to why they chose to attain Mr. George let's let's assume from in at the passport did playable the Supreme Court has made clear that you need to consider factors in terms of determining whether or not you've reasonable suspicion you need to use factors that do not describe large numbers of innocent people that they will not be then swept in and potentially detained at random are there large numbers of people showing with passport showing immediate travel through countries known to have terrorist problems and carrying flashcards it's a bomb terror is kidnapping on them in Arabic and English is that is is a is a ruling that that's which gives rise to reasonable suspicion going to sweep up large numbers of innocent people you think well I think terms to travel large numbers of people state department employees journalists professors lots of people travel to the Middle East sure right and so it would sweep up potentially large numbers of folks many of them who may be learning Arabic to try and communicate better to try and learn more about that area of the world as Mr. George was doing so ultimately a suspicion which is reasonable can be dissipated by explanation certainly but is it the contention that you're making that that the fact that you can dissipate a reasonable suspicion with discussion means you don't have reasonable suspicion to start with we're just the point you're focused on or I take it focused on is once that administrative search ended and in your view as I understand that that ended as soon as they looked in his bag the second time and said no gun no bomb that after that it was all bad and and I'm puzzled by that for I think the reasons chief judgment he's quite couldn't you have what if he what if he was carrying a manual that said how to fly a 747 by Muhammad Aqda would that not be the sort of thing it's not a gun it's not a bomb but the sort of thing that would make a reasonable government official say that's a problem I got to talk to this person some more and I'm out of administrative search now I'm into reasonable suspicion it's not a weapon but it gives me the right to hold this person and talk to him I think that's of course a different scenario than we've put in our complaints and we need to be focused here on the facts in this complaint this stage sure but you made a legal argument that only guns only bombs only weapons can justify the sort of further detention that might happen or at least maybe I'm gonna justify can justify a warrantless search you know it's actually a search and detention without reasonable suspicion or probable cost so we're not saying that of course the TSA if they have reasonable suspicion to believe that somebody is is is a threat and there's reasonable suspicion they're about to commit a crime of course right right that the reasonable suspicion in that regard of course they can detain that person for proper question as long as they adhere to is this complex of facts that you will ledge sufficient to give rise to reasonable suspicion we let you know but that tells me because even in Terry where in the reasonable suspicion suspicion in Terry gets you the initial stop and this is and I think that was part of the confusion the district were had this to me is not a Terry stop at all it's an administrative search that we said a heart war and that's a very different focus different inquiry then you have in Terry and all of the cases they're talking about drug screening at our ports it's very different than Guarro and in that line of cases at least in my mind if reasonable suspicion is necessary the reasonable suspicion would not be dissipated just because the person doesn't have a gun or bomb on them there may be reason to follow up with the initial inquiry to find out what have I got here and I don't have anybody who's got a bomb or a gun what exactly am I dealing with to take the truth example what if you'd stop Muhammad Ali and he had a detailed manual on how to apply a 747 you said well they don't have a gun or a bomb guys no problem just kind of let you I hope he was a logger or Kennedy but go ahead and if you're in the exit exit I you've got to be able to answer certain questions in English but otherwise have a seat on the plane and enjoy our sweet and snape with savory snacks as they always say you but that wouldn't make any sense in the context of what justifies an administrative search and yet another problem this is a very long I hope and there'll be a question at the end of the Mr. Castles and I'm sure I concerned with one of the the misfocuses here seems to me is that the whole purpose for the administrative detention administrative search if you will is the balancing of the public interest for security against the private interest and in privacy the fourth member private interest that's very different in the context of administrative airport screening than it is when you're doing a drug trial for pro-frying search as you might have in Guarro because there if you make a mistake the only thing that happens is somebody's getting on the plane with some drugs in their pocket and there'll be some drugs on the street wherever that person is and that's something your society can live with and so you decide well the risk of errors not so great there so you let the person go you can't engage in this kind of screening in this context of the administrative search the balance it seems to me is very very different because the risk it's on the public interest side of that scale is horrendously and exponentially different than the risk is somebody getting through security with five greens or five grams of crack on them it's just no comparison so why would all of the kinds of approaches where you look at reasonable suspicion once you satisfy yourself to the reasonable suspicion you must release the person why would that line of cases play here i did get a question at the end of that but you i understand my concern i do i do absolutely i understand your honest concern and of course we we never disagree that air safety is critical but there are all the cases have held including the heart well case that the fourth amendment continues to apply in this context and so i will i still stand by absolutely that we believe in the administrative search but under the fourth amendment is a strictly reasonable suspicion for absolutely all the circumstances so i would i would i would say even if we presume for the sake of this discussion that they had a reasonable suspicion what happened to mr. george was that he was in fact arrested right handcuffed as you said per block judge georgon through the airport right and put in a jail cell two hours low cell two hours in cuffs in the cell sure he was arrested so there was not probable cause even if you were to presume that they had reasonable suspicion to detain him in the first place and the tsa officials by all by the plausible allegations in the complain of the ones who directed asked for that arrest and here's my here we'll go ahead i was just going to say your answer thank you wrong just to say that the the the the the detention clearly violated mr. georgous rights and that the the detention or the arrest because i mean there's the arrest the arrest i'll clarify the arrests so we because we believe certainly when the police arrived and put him in cuffs from that point over he'd been arrested so the arrest absolutely was without probable cause even if you could presume there was probable cause the manner in which he was held the duration in which he was held and the the dose four and five certainly responsible for that as well they who's being held in their request responsible for that they get there i think they're incircumulated twenty to thirty minutes why did they responsible for the whole four or five hours these questions because as we allege in the complain of course the inferences need to be taken in our favor at this point the fact is true that the phone call was made to them all the cases that that taught and they took still four hours later that they actually arrived in question mr. georg all the cases that deal with investigatory detentions the Supreme Court has never held an attention of more than ninety minutes in the judge but there in this case again it wasn't tsa he was holding it i've been in that little police station the airport not in the cell but good thanks thank you for playing with me we get into the parking pass and there was nothing other than you go in there there's a big sign thought of the police department you go into the office and there's a glass door and there's photo-fee police officers and reach it the glass and there's some of them sitting back having the the mandatory donuts on the desk but there's nothing to suggest TSA that it's a Philadelphia police department operation right and that's where he was held absolutely there was where he was held the TSA we allege TSA requested directed his arrest the the officials the cases are about you know you had a stop there i got to stop you there okay please i can for purposes of discussion let's say it's plausible to say the TSA wanted mr. georg detained for some further questioning what is it that makes it plausible and what you've alleged that they wanted in handcuffed and locked in a cell with his hands behind his back for two hours and another two hours after that isn't that just like it completely speculative we what have you got that indicates in any way shape or form that the TSA officers intended wanted plan participated in any way in that behavior i think the allegations as we've alleged the the reaction is key they they it does not make any sense as you said that the police arrived on the scene without the call from TSA they call them they call them and and what i'm trying to get to do is respond to this wingles argument which i understand to be intrigued by it she'd like i understand it to be sure they call because they they need some help of some sort somebody contacts police for some help they and they need some further detention for further questioning but how do you get from there to and we really want you guys to perplac him through the whole airport cuff and leave him in a cell for four hours isn't in that a leap is that a leap beyond the plausible how do you get there i think it's plausible that under the operations that the relationship between TSA and the Philadelphia police that when the TSA calls the police to take someone to custody that they would put them in cups and take them to the police station put them in the cell now that this issue for discovery we're obviously here asking you to decide a question of law whether or not what the individual defendants did was justifies qualified immunity as to the exact policy of what TSA has their relationship with the Philadelphia police and given the reactions as we've pled of the TSA agents they didn't protest in the least that's how it's towards you. Why would I mean that's that's pushing it wine will would they put it wait a minute wait a minute you can't put this guy in cash you got a lump on the airplane is that well but if the issue if the issue is the manner in which they're taking him away to be further detained they could have certainly could have rejected that one they're silent. They don't have a primitive obligation to step in and say wait you can't do that to them that the fact they do not need to do them let let it happen why is it being cuffed and walked out that doesn't give rise to the agency i don't think you have to go to that part of getting agency but that certainly doesn't give rise to the agency

. georgous rights and that the the detention or the arrest because i mean there's the arrest the arrest i'll clarify the arrests so we because we believe certainly when the police arrived and put him in cuffs from that point over he'd been arrested so the arrest absolutely was without probable cause even if you could presume there was probable cause the manner in which he was held the duration in which he was held and the the dose four and five certainly responsible for that as well they who's being held in their request responsible for that they get there i think they're incircumulated twenty to thirty minutes why did they responsible for the whole four or five hours these questions because as we allege in the complain of course the inferences need to be taken in our favor at this point the fact is true that the phone call was made to them all the cases that that taught and they took still four hours later that they actually arrived in question mr. georg all the cases that deal with investigatory detentions the Supreme Court has never held an attention of more than ninety minutes in the judge but there in this case again it wasn't tsa he was holding it i've been in that little police station the airport not in the cell but good thanks thank you for playing with me we get into the parking pass and there was nothing other than you go in there there's a big sign thought of the police department you go into the office and there's a glass door and there's photo-fee police officers and reach it the glass and there's some of them sitting back having the the mandatory donuts on the desk but there's nothing to suggest TSA that it's a Philadelphia police department operation right and that's where he was held absolutely there was where he was held the TSA we allege TSA requested directed his arrest the the officials the cases are about you know you had a stop there i got to stop you there okay please i can for purposes of discussion let's say it's plausible to say the TSA wanted mr. georg detained for some further questioning what is it that makes it plausible and what you've alleged that they wanted in handcuffed and locked in a cell with his hands behind his back for two hours and another two hours after that isn't that just like it completely speculative we what have you got that indicates in any way shape or form that the TSA officers intended wanted plan participated in any way in that behavior i think the allegations as we've alleged the the reaction is key they they it does not make any sense as you said that the police arrived on the scene without the call from TSA they call them they call them and and what i'm trying to get to do is respond to this wingles argument which i understand to be intrigued by it she'd like i understand it to be sure they call because they they need some help of some sort somebody contacts police for some help they and they need some further detention for further questioning but how do you get from there to and we really want you guys to perplac him through the whole airport cuff and leave him in a cell for four hours isn't in that a leap is that a leap beyond the plausible how do you get there i think it's plausible that under the operations that the relationship between TSA and the Philadelphia police that when the TSA calls the police to take someone to custody that they would put them in cups and take them to the police station put them in the cell now that this issue for discovery we're obviously here asking you to decide a question of law whether or not what the individual defendants did was justifies qualified immunity as to the exact policy of what TSA has their relationship with the Philadelphia police and given the reactions as we've pled of the TSA agents they didn't protest in the least that's how it's towards you. Why would I mean that's that's pushing it wine will would they put it wait a minute wait a minute you can't put this guy in cash you got a lump on the airplane is that well but if the issue if the issue is the manner in which they're taking him away to be further detained they could have certainly could have rejected that one they're silent. They don't have a primitive obligation to step in and say wait you can't do that to them that the fact they do not need to do them let let it happen why is it being cuffed and walked out that doesn't give rise to the agency i don't think you have to go to that part of getting agency but that certainly doesn't give rise to the agency. I think I think the inference is that that was the expected mode of operation by the Philadelphia police when they would arrive and that discovery proves differently or if discovery would approve or even if it's expected and that's not true it seems to me it would be expected i'm not sure that gets you agency i think that's what miss Fungal is zarguing again please crack me from wrong but the fact that the TSA folks know that when the police show up they have the arrest authority TSA doesn't so it's logical to assume when the police show up this guy is going to be arrested that does not make the photo of the police the agents of the TSA just because TSA knows what it's all about. But if the TSA agents as we've put not only positive explanation of believe in this company is that the TSA agents asked what police to come so therefore there is there's the agency link they know what's going to happen they asked for it. They direct the agency to proceed yes if i can impose on my colleagues here for a couple more questions i'd like you to respond to this language from Florida versus Royal Year there are undoubtedly reasons of safety and security that would justify moving this suspect from one location to another during an investigatory detention such as from an airport concourse to a more private area. So if if the Supreme Court has sanctioned and it sounds like they have moving somebody from a screening area to some more private spot for further investigatory detention is it or is it not the case that the TSA can call the filled up the police with every intention that he'd be moved and he in fact be detained but not want or intend or plan or direct how that's to happen. In Royer the court held this pre-court held that there had been an arrest in that instance and that there was not probable cause

. I think I think the inference is that that was the expected mode of operation by the Philadelphia police when they would arrive and that discovery proves differently or if discovery would approve or even if it's expected and that's not true it seems to me it would be expected i'm not sure that gets you agency i think that's what miss Fungal is zarguing again please crack me from wrong but the fact that the TSA folks know that when the police show up they have the arrest authority TSA doesn't so it's logical to assume when the police show up this guy is going to be arrested that does not make the photo of the police the agents of the TSA just because TSA knows what it's all about. But if the TSA agents as we've put not only positive explanation of believe in this company is that the TSA agents asked what police to come so therefore there is there's the agency link they know what's going to happen they asked for it. They direct the agency to proceed yes if i can impose on my colleagues here for a couple more questions i'd like you to respond to this language from Florida versus Royal Year there are undoubtedly reasons of safety and security that would justify moving this suspect from one location to another during an investigatory detention such as from an airport concourse to a more private area. So if if the Supreme Court has sanctioned and it sounds like they have moving somebody from a screening area to some more private spot for further investigatory detention is it or is it not the case that the TSA can call the filled up the police with every intention that he'd be moved and he in fact be detained but not want or intend or plan or direct how that's to happen. In Royer the court held this pre-court held that there had been an arrest in that instance and that there was not probable cause. So I'm trying to get you to focus not on the arrest fees if you hear they're talking about Terry and a line of cases associated with Terry and investigatory detention. Right and the line of the Supreme Court drew there was that even if there was the opportunity there was reasonable suspicion to detain you need separate probable cause and the movement to that separate room was indication of the arrest and the safety concerns they talked about. Now of course you could come up with different scenarios the safety concerns they were talking about were safety to the officers perhaps losing control of the luggage they wanted to search. Mr. George was entirely cooperative without this entire experience he never once threatened a single person he was answered any question they had he posed none of those threats at all

. So I'm trying to get you to focus not on the arrest fees if you hear they're talking about Terry and a line of cases associated with Terry and investigatory detention. Right and the line of the Supreme Court drew there was that even if there was the opportunity there was reasonable suspicion to detain you need separate probable cause and the movement to that separate room was indication of the arrest and the safety concerns they talked about. Now of course you could come up with different scenarios the safety concerns they were talking about were safety to the officers perhaps losing control of the luggage they wanted to search. Mr. George was entirely cooperative without this entire experience he never once threatened a single person he was answered any question they had he posed none of those threats at all. Okay it's true that in Royer the court said the facts of that case are such that it wasn't an investigatory detention it wasn't a arrest but they are positing and I'm trying this is what I'm trying to get you respond to they posited in the language I quoted to you that something short of arrest an investigatory detention could quote undoubtedly involve taking somebody from where you're talking to them moving them someplace else and continuing the questioning someplace different and that that would not be an arrest right that's the language Royer. It is it is unquestionably as futility of the circumstances test. So so I understand the government's position to be you you shouldn't listen to what the plaintiff is saying here court because he's wrongly trying to get you to hold culpable the TSA screeners for stuff that they they there's no reason to believe nothing in the complaint it would have you believe they wanted an arrest they wanted further detention for investigation and to make the leap to arrest is is unwarranted I guess I'm trying to get you to respond to that if I could get sure sure I would say as we've discussed plausible inferences that the TSA calls the police and asks them to come sure right the the plausible inferences that TSA as the government has contended they have a long-standing relationship with the police they're working concert all the time TSA will certainly know what means the the police use when they take someone into custody for detention or otherwise they will know how the police act that's the plausible inference they will know that they put someone in cops they perp walk them through the airport they put them in a jail cell that is we would we would contend that is plausible inferences of the facts and are compact okay thank you very much all right thank you you runners thank you thank you very much thank you very much thank you very much thank you honors I could start with Judge Jordan's final round of questioning I do think on the facts here even if one accepts the proposition that the individual TSA screeners could be somehow attributed the conduct of the fell of the police here as best we know those TSA screeners might have understood that police would come but I think the mere fact that the Philadelphia police took Mr. George away is not a basis for attributing the four-hour period of detention they were in a secure screening area it would be perfectly reasonable for police to take Mr. George out of that airport screening area to somewhere else to question him further so the mere fact that he was taken away by the police and handcuffed is not enough to attribute to them some kind of arrest and if I may I think the appropriate fourth amendment standards here are not the standards for a Terry Frisk and investigative detention I think the closest analog is actually border searches which are also administrative searches and and have been tied in the case law with airport searches and it is commonplace in a border search for an individual to be taken from the place of initial screening to somewhere else for secondary screening it is commonplace for that to happen with handcuffs being used to transport the person to the other place I would be happy to provide some citation support to the court and that has never been allowed to be available

. You heard my exchange with Mr. Katznowski and maybe can probably just frankly at least much from myself I totally agree with you that this is not the Terry lines of faces are an invitation to go down a rabbit hole in this inquiry it's not appropriate it's much more akin to as you suggest a border search because even for Terry you need individualized articible suspicion you do not need that for a border search or for administrative search under heart well that's good everybody goes through it and let me add that in the border search context those secondary screenings routinely have been upheld even where they last for about one hour let's assume and I know you're going to be in with every five-up you're being you're going to resist this hypothetical but try to get over it all right let's assume just engage me fantasize here with me for a second let's assume that they could establish an agency relationship on the part of the federal peace department and the GSA now I know that's gonna upset you the rest of the day because bear with me assume that why don't we draw the line it seems to me there's got to be some limitation you can't hold some running Guantanamo Bay until you figure out what they have this person's about because they had some literature that look like that looks like this person totally disagrees with the policies of the federal government and the Middle East how do we restrict the ability of the government this means the agency relationship to hold someone under heart well for administrative attention once they see no bombs no weapons how long and under what circumstances can they detain someone to investigate whether that be sure that that person go forward you know your honor I think that question is squarely presented in the district court claims brought against the Philadelphia police and potentially against the United States I know I know it's your resistance I knew we weren't going to be friends after this exchange well if I may your honor just pretend you don't pretend you don't we don't take any view about the lawfulness of the period I'm sorry we don't take any view in this appeal we have not sought to defend is that because it's an impossible question the lawfulness of his for our holding by the Philadelphia police I think our position is there has to come a point at which TSA screeners who need to be able to call local police just to to fulfill their normal everyday functions surely we don't want to discourage screeners who have a problem from from seeking help there needs to come a point at which they are not responsible for what happens afterwards what if mr. George and that's the one question and you're giving me a very very nice and food I answer to a question I never ask you but I just we don't have a position I am not authorized to take a position about the point at which I'm not going to call you super pleasure and damn you out it's from us are from us just Tina's folks here I think it was we'd like some help with that inquiry because there's got to be a limit and we don't disagree with that your honor but please I ask the court to remember the capacity I am here in today I remember that's why I apologize for putting in this position I will say you know to the extent we have case all that bears on it you know obviously it's relevant whether it's a question of aviation security that's a issue or whether he's been held for law enforcement purposes I think that's not clear on the record before the court and certainly as to the claims against the Philadelphia police that would be highly relevant was it is it your view leave out the leave out the period of time part is it your view that because this occurred at an airport it couldn't be in arrest the the fact that your handcuffs in a jail cell makes it nothing more than a it isn't it is not your honor I that he was taken away and handcuffs to somewhere else cannot tell you that the TSA individuals intended for him to be arrested arrested they might have simply thought he was being moved to be questioned somewhere what's your response to the assertion from Mr. Cass Nelson it it is a plausible inference that because these people do work together regularly they know when they call the cops and say please take this fellow away we have to question more that it's going to involve handcuffs and bars I think there is absolutely no factual support in the record for that at all I think it is just completely speculative there's nothing and you know we know that TSA and the police work together only because I had stood up this morning and told you that it just as a matter of common knowledge but I don't think there's anything even within common knowledge that would lead you to conclude based on anything more than pure speculation that they work together to arrest people I mean local law enforcement officials in this context do a whole variety of things in airports and I just there's nothing more we can take away if I might I know I'm out of time but just to make one final point for the court we have not talked really this morning about John does four and five the FBI officials but I think even if the court disagrees with our arguments about the TSA screeners there is no basis in the factual allegations to make those two individuals responsible for this entire period of detention that came before I did ask about I asked about 15 to 20 minutes 30 minutes I guess and they determined exactly all that we know is the field of you please call them we don't know how long they waited before calling them they came we don't know how long it took for them to come they asked questions for 30 minutes they saw they released exactly and I think there's nothing that would support the the district courts willingness to those individuals thank you thank you very much this one will be great interesting case say the lead the big matter and the advisemen