Two comedians sued after being searched for drugs at the Atlanta airport while boarding their flights. The stops and searches lacked probable cause, and seemed pretty clearly to be racial profiling.

• Clayton English was stopped while flying from Atlanta to Los Angeles on October 30, 2020.

• Eric André had finished up shooting for HBO’s “The Righteous Gemstones and was connecting in Atlanta enroute to L.A. on April 21, 2020.

Officers blocked each of them as they entered the jetbridge. They were asked if they were carrying illegal drugs, and were detained.

Local police officers were selectively stopping passengers, taking boarding passes and ID, and interrogating them and performing searching of their belongings before allowing them to board flights.

Police claimed these stops were ‘totally voluntary’. Because people just invite the cops to detain them and search them for drugs! Those silly passengers who have actual drugs on them are totally willing to have their drugs found!

Over a 9 month period, police stopped 402 passengers at jetbridges in Atlanta. 68% of those stopped were minorities. Fewer than 1% – just 3 – yielded ‘drug seizures’ which consisted of a handful of suspected THC gummies, six pills without a prescription, and 10 grams of drugs from a single passenger. In. Nine. Months.

So why bother? Because they seized over a million in cash from 25 passengers – civil asset forfeiture that generally involves no charges, they just keep the money and use it for their own agency.

Profiling At Airports Happens All The Time

If you land in Japan, avoid standing in a customs line behind South Asians because they’re going to get far more scrutiny than you and the line will take awhile. Take the longer line of Japanese, or white people. Avoid the short line with Indians or Pakistanis. In the U.S., don’t carry cash with you to the airport if you’re a minority!

Federal Appeals Court Says These Two Victims Can Sue

English and André’s cases were dismissed by a district court in September 2023, finding that they had failed to plausibly allege constitutional violations, and granting qualified immunity to the individual officers involved.

However, the passengers appealed to the 11th Circuit Court of Appeals. Uniquely, amicus briefs were filed in support of their case by Tyler Perry, Jamie Foxx, Taraji P. Henson, Sterling K. Brown, Jean Elie, and organizations like the NAACP Legal Defense Fund and the Cato Institute.

Last week the 11th Circuit issued its ruling reinstating the case. Here is the decision.

The unanimous ruling held that the plaintiffs plausibly alleged that the jetbridge interdiction program constituted unconstitutional searches and seizures by taking identity documents and boarding passes, blocking paths, and engaging in coercive questioning without reasonable suspicion.

However, the individual officers are shielded by qualified immunity. This is one of the most absurd areas of law that officers can violate individuals rights and not be held accountable since the right in question must be “clearly established” meaning some earlier case must have found a violation with nearly the same fact pattern.

Put another way, a right is supposedly guaranteed by the Constitution, but doesn’t actually protect you until someone else has already been victimized in the same bizarrely specific way, and a court has ruled on it. This turns the Constitution into a catalog of past harms rather than a living shield against new ones. No other areas of law works this way.

Ultimately, ordinary people are subject to liability for rights violations, and federal agents who wield coercive state power should be more accountable, not less. The Eleventh Circuit did find municipal responsibility, however.

Dismissal of the racial allegations was upheld, because the plaintiffs failed to demonstrate that officer acted with a discriminatory purpose, despite statistical disparities (their was insufficient evidence of intent).

So only the Fourth Amendment claims against Clayton County proceed – not the race-based equal protection claim and not claims against the individual officers involved.

If These Two Comedians Were Flying Today, They Probably Wouldn’t Be Stopped

The Department of Justice halted the DEA airport search program last fall.

$4 billion had been seized from travelers by the government in 10 years – usually without any charges filed, or plausible allegations of illegal activity – because the officers involved lacked proper training and kept insufficient documentation. The government admitted the program was likely to continue committing constitutional rights violations.

The DOJ’s own report suggested that the DEA was performing these searches for the purpose of seizing funds for its own use.

Searches are now only be allowed if connected to an ongoing criminal investigation or approved under exigent circumstances by the DEA Administrator.

I’ve written about civil asset forfeiture at airports before, and even served as an expert witness in a case against the practice. The DEA frequently targets minorities so they’ve stopped tracking race. Police records though contain data showing 56% of jetbridge stops are of black passengers, while 68% are minorities.

Even just flying Atlanta to Los Angeles was enough for a stop and seizure, because passengers are flying from ‘one known drug location’ to another. The government considers one way tickets suspicious, even though airline pricing practices make it often better to book one way tickets.

Now, the comedians were stopped not by the DEA but by Clayton County Police officers at Atlanta’s airport, as part of a local interdiction program on jetbridges. Their lawsuit is against Clayton County, not the DEA.

However, Clayton County’s jet-bridge interdiction program was modeled on, and often coordinated with, DEA interdiction. The 11th Circuit ruling this month specifically said the comedians plausibly alleged that Clayton County’s practice amounted to unconstitutional seizures. That doesn’t shut the program down, but it does put it under intense legal risk.

Given the federal government’s ban on DEA doing these stops, and the appeals court greenlighting a Fourth Amendment challenge against Clayton County, it’s highly likely the county curtails the practice. Any officer engaging in similar tactics is on notice that they’re violating clearly established rights and potentially incurs personal liability in addition to exposing to county to liability.

Civil Asset Forfeiture Is Horrible

Here’s a quick primer on the practice.