Six Minneapolis airport police officers accused of wrongfully arresting six Muslim scholars have appealed a judge's order allowing trial in a case that is shaping up as a major battle over the post-9/11 balance between liberty and security.

In a July 24 ruling, U.S. District Judge Ann D. Montgomery found there was no probable cause to arrest the so-called flying imams and rejected the officers' argument that the 9/11 attacks  “justif[y] a massive curtailment of liberty whenever terrorism, and in this case, the suspicion of Islamic terrorism, is concerned.”

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

The imams were removed from a US Airways flight awaiting departure from the Minneapolis-St. Paul Airport and detained for more than five hours after a passenger reported they had cursed American involvement in Iraq. FBI agents interviewed them but they were all released without being charged.

Montgomery denied motions for summary judgment filed by the Metropolitan Airports Commission (MAC) officers and an FBI agent, while dismissing the plaintiffs' claims against US Airways. “The constitutional rights of the entire flying public are supported by Judge Montgomery's order," a plaintiffs' attorney said.

But the decision has come under attack from legal experts and others and the MAC officers' appeal means any trial will be significantly delayed.

In finding the officers were not entitled to qualified immunity, Montgomery summarized the information available to them at the time of the arrests. Among other things, they had been informed that the imams were chanting the word “Allah” before the flight, three of them had one-way tickets, and most of them had requested seatbelt extensions.

“This information, if it were all true, falls short of leading a reasonable officer to conclude there was probable cause that a crime was being or had been committed,” Montgomery wrote, going on to fault the officers for not checking the veracity of the information.

As far as the seatbelt extensions, Montgomery said, “The MAC Defendants have produced no evidence of a documented instance in which seatbelt extensions were used as a weapon or that law enforcement ever expressed concern about their use as a weapon.”

One critic of the decision, Minneapolis attorney Scott Johnson, says on the Powerline blog that before 9/11, “[T]here was no documented instance of box cutters having been used to pull off a hijacking ... When taken together with other circumstances, the imams' request for unneeeded (according to the flight attendant) seatbelt extensions seems to have raised a reasonable suspicion that a crime was being committed.”

The flight attendant told police that only two of the scholars -– Omar Shahin and Marwan Sadeddin -- requested the extensions. Johnson ignores the fact that Shahin is 6’1” and 285-pound and Sadeddin is 5’11”, 250 pounds -– and blind.

“Even assuming the extensions could be employed as a weapon, the MAC Defendants have failed to offer a reasoned explanation of how Sadeddin, who is completely blind, could pose such a threat,” Montgomery said.

She also found sufficient evidence that the imams were arrested because of their religion. “Similar behavior by Russian Orthodox priests or Franciscan monks would likely not have elicited this response,” she said.

FBI Special Agent Michael Cannizzaro did not appeal the denial of his summary judgment motion and the plaintiffs did not appeal the dismissal of the US Airways claims.

By Matthew Heller
9/1/09