PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 11-4292

NICHOLAS GEORGE

v.

WILLIAM REHIEL, PHILADELPHIA POLICE OFFICER, 

IN HIS INDIVIDUAL CAPACITY; EDWARD RICHARDS, 

PHILADELPHIA POLICE OFFICER, IN HIS 

INDIVIDUAL CAPACITY; JOHN DOE 1, JOHN DOE 2 

AND JOHN DOE 3, EMPLOYEES OF THE 

TRANSPORTATION SECURITY ADMINISTRATION, IN 

THEIR INDIVIDUAL CAPACITIES; JOHN DOE 4 AND 

JOHN DOE 5, PHILADELPHIA POLICE DEPARTMENT 

DETECTIVES, IN THEIR INDIVIDUAL 

CAPACITIES; UNITED STATES OF AMERICA

 John Does 1-5,

 Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Civ. No. 10-cv-00586)

District Judge: Hon. Edmund V. Ludwig

Before: McKEE, Chief Judge, JORDAN and VANASKIE,

Circuit Judges

Argued: October 5, 2012

(Opinion filed: December 24, 2013)

MARK B. STERN, ESQ.

DOUGLAS N. LETTER, ESQ.

SHARON SWINGLE, ESQ. (Argued)

Attorneys, Appellate Staff

Civil Division
2

Department of Justice 

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

Attorneys for Appellants

ZACHARY KATZNELSON, ESQ. (Argued)

MITRA EBADOLAHI, ESQ.

BENJAMIN E. WIZNER, ESQ.

LEE B. ROWLAND, ESQ.

American Civil Liberties Union Foundation

125 Broad Street, 18th Floor

New York, NY 10004

MARY CATHERINE ROPER, ESQ.

American Civil Liberties Union Foundation

of Pennsylvania

P.O. Box 40008

Philadelphia, PA 19106

DAVID RUDOVSKY, ESQ.

Kairys, Rudovsky, Messing & Feinberg, LLP

718 Arch Street

Suite 501 South

Philadelphia, PA 19106

Attorneys for Appellee

OPINION

McKEE, Chief Judge.

This appeal arises from a suit against five Federal 

Officials, three of whom were employed by the 

Transportation Security Administration (“TSA”)1, and two of 

whom were employed by the Federal Bureau of Investigation 

and who were assigned to the FBI’s Joint Terrorism Task 

Force (“JTTF”).

2

 They appeal the district court’s denial of 

their Fed.R.Civ.P. 12(b)(6) motions in which they asserted 

that they were entitled to qualified immunity against Nicholas 

George’s claims that they violated his Fourth and First 

 

1

John Does 1 and 2 and Jane Doe 3.

2

John Does 4 and 5.
3

Amendment rights during the course of an airport screening at 

the Philadelphia International Airport.3For the reasons that 

follow, we conclude that the federal defendants are entitled to 

qualified immunity and will reverse the district court’s denial 

of their motion to dismiss.

I. FACTS

According to the allegations in his amended complaint,

4

 on 

August 29, 2009, Nicholas George, a 21-year old citizen of 

the United States, was scheduled to fly from Philadelphia, 

Pennsylvania, to California to begin his senior year at 

Pomona College. George claims that after he arrived at the 

Philadelphia International Airport, he was detained, 

interrogated, handcuffed, and then jailed, in violation of his 

Fourth and First Amendment rights, because he was carrying 

a deck of Arabic-English flashcards and a book critical of 

American interventionism. 

When he arrived at the Airport, George presented his 

boarding pass and showed TSA Officials valid identification. 

He was then asked about the contents of his carry-on bag, and 

he told a TSA screening Official that it contained two stereo 

speakers. He was asked to remove them so that they could be 

separately screened by x-ray. After George walked through 

the screening device, a TSA Official told him to enter a glassenclosed area for additional screening. George did so and 

another TSA Official (“John Doe 1”) told him to empty his 

 

3

Pursuant to a stipulated protective order entered in the 

district court, the three TSA employees named as individual 

defendants were named as John Does 1-2 and Jane Doe 3, and 

were identified under seal. The two individual defendants 

alleged in the complaint to be “detectives of the Philadelphia 

Police Department,” were identified in preliminary discovery 

to be FBI Agents with the JTTF. Those two individual 

defendants have been designated John Does 4-5 pursuant to 

the stipulated protective order. 

4

In reviewing a denial of qualified immunity at the Rule 

12(b)(6) stage of litigation, we must accept all plaintiff’s 

allegations as true and draw all inferences in his or her favor. 

Torisky v. Schweiker, 446 F.3d. 438, 442 (3d Cir. 1991). 
4

pockets. George complied and handed over a set of 

approximately 80 handwritten Arabic-English flashcards. 

George contends that the flash cards included words 

commonly used in contemporary Middle Eastern publications 

and electronic media. He claims that he had them because he 

was trying to become sufficiently proficient in Arabic to be 

able to read and understand discussions in contemporary 

Middle Eastern media. The flashcards included every day 

words and phrases such as “day before yesterday,” “fat,” 

“thin,” “really,” “nice,” “sad,” “cheap,” “summer,” “pink,” 

and “friendly.” However, they also contained such words as: 

“bomb,” “terrorist,” “explosion,” “attack,” “battle,” “kill,” “to 

target,” “to kidnap,” and “to wound.” 

George had a double major in Physics and Middle 

Eastern Studies and had traveled to Jordan to study Arabic as 

part of a study abroad program organized by the Council on 

International Educational Exchange.

5 He acknowledges that 

after completing his program – for which he received course 

credit at Pomona College – he spent approximately five 

weeks traveling in Ethiopia, Egypt and Sudan. He travelled 

there as a tourist and to practice his Arabic.

6

After seeing the flashcards, John Doe 1 took George to 

another screening area where Doe 1 and a second TSA 

screener (“John Doe 2”) swabbed George’s cell phone for 

explosives, and searched his carry-on items. Either John Doe 

1 or John Doe 2 then telephoned a supervisor, Jane Doe 3, 

and she arrived at the screening area within 30 minutes.

George claims that upon her arrival, Jane Doe 3

subjected him to aggressive interrogation and detained him 

for an additional 15 minutes. When asked about his 

flashcards, George explained that he was using them to learn

Arabic vocabulary. He submits that the interrogation 

included the following exchange:

Jane Doe 3: You know who did 

 

5

The Council is a non-profit U.S. organization founded in 

1947.

6

It does not appear that George was questioned about his 

travels by the TSA Officials.
5

9/11?

George: Osama bin Laden.

Jane Doe 3: Do you know what 

language he spoke?

George: Arabic.

Jane Doe 3: Do you see why 

these cards are suspicious?

Jane Doe 3 also commented about one of his books

entitled, “Rogue Nation: American Unilateralism and the 

Failure of Good Intentions.” The book was critical of United 

States foreign policy. However, in responding to Jane Doe 

3’s questioning, George insists that he made no threatening 

statements, and that he neither said nor did anything that 

would lead a reasonable government official to regard him as 

a threat. 

As Jane Doe 3 was in mid-sentence questioning 

George, William Rehiel, a Philadelphia Police Officer, 

arrived at the airport screening area. Rehiel immediately 

handcuffed George and led him through the Terminal and 

down a set of stairs to the Airport Police Station in the plain 

sight of other passengers. Upon arriving there, he was locked 

in a cell for more than 4 hours. He remained in handcuffs for 

the first two hours of that detention. 

Philadelphia Police held George for further 

questioning by two FBI Joint Terrorism Task Force (“JTTF”) 

Officials, “John Doe 4” and “John Doe 5.” However, no 

Philadelphia Police officers questioned him or took any 

meaningful steps to investigate whatever suspicions they may 

have had while he was confined. Furthermore, no one told 

George why he was being held. Rather, the Philadelphia 

Police called the JTTF Officials for them to evaluate whether 

he was a threat.

When the JTTF Officials finally arrived, they searched 

his carry-on belongings, and then escorted him out of his cell 

to a room where they interrogated him for 30 minutes. They 
6

questioned him about his personal and religious beliefs, 

travel, educational background, and political and social 

associations, e.g., whether he was a member of “pro-Islamic” 

or “communist” groups on campus, or whether he met anyone 

during his travels who was overtly against the U.S. 

government. 

After about 30 minutes of questioning, the JTTF 

Officials told George that the Philadelphia Police called them 

to evaluate whether he was a real threat, that they (the JTTF 

Officials) had concluded that he was not a threat, and that he 

was free to leave. Thus, more than five hours after his ordeal 

began, he was released from custody. George claims that he 

was not free to leave at any time before the JTTF Officials

allowed him to go, and he was not advised of his rights, 

allowed to make a phone call or contact an attorney before 

then. 

The following day, George returned to the airport and 

boarded a flight that took him to his destination without 

further incident. 

II. DISTRICT COURT PROCEEDINGS

George filed a complaint and an amended complaint in 

the district court asserting a Bivens’ action against the three 

TSA Officials and the two JTTF Officials.

7, 8 The amended 

 

7

In Bivens v. Six Unknown Named Agents of the Fed. Bur. of 

Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court held 

that federal officers who acted under color of law were liable 

for damages caused by their violations of a plaintiff’s Fourth 

Amendment rights. Pursuant to Bivens, “a citizen suffering a 

compensable injury to a constitutionally protected interest 

could invoke the general federal-question jurisdiction of the 

district courts to obtain an award of money damages against 

the responsible federal official.” Butz v. Economou, 488 U.S. 

478, 504 (1978). 

8 George also asserted claims against the United States under 

the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), and 

against two Philadelphia Police officers, Rehiel and Edward 

Richards, who George alleges was the duty sergeant for at 
7

complaint alleges that the individual Federal Officials 

subjected him to an unreasonable search and seizure in 

violation of his Fourth Amendment rights, and that they 

detained him in retaliation for his possession of Arabiclanguage flashcards and the content of a book he was 

carrying, in violation of his First Amendment rights. 

As we noted at the outset, the TSA and JTTF Officials

filed motions to dismiss the Bivens’ claims pursuant to 

Fed.R.Civ.P. 12(b)(6). They argued that George’s allegations

did not establish a constitutional violation, and that even if he 

had adequately pled such a violation, they were entitled to 

qualified immunity because the underlying constitutional 

rights were not so clearly established at the time of his 

detention to deprive them of that defense.

The district court denied the motions to dismiss

explaining that “the amended complaint alleges claims for 

relief that are ‘plausible on [their] face.’Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (U.S. 2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)).” The individual 

Federal Officials filed an appeal from the denial of their Rule

12(b)(6) motions and an unopposed motion for clarification in 

which they asked the district court to confirm its intent to 

reject their assertion of qualified immunity. 

In response, the district court further explained that the 

amended complaint “contains sufficient factual allegations of 

specific conduct on the part of each defendant that, if true, 

constitute violations of plaintiff’s First and Fourth 

Amendment rights.” The Court further explained: 

The procedures employed by the 

defendants, as alleged here, do not 

appear to have been minimally 

designed to protect plaintiff’s 

personal privacy and individual 

liberty rights. The TSA’s 

statutory and regulatory authority 

 

least part of the time he was detained by the Philadelphia 

Police, under 42 U.S.C. § 1983. However, those claims are 

not before us in this appeal.
8

appears to have been exhausted 

after the first 10-15 minutes, once 

plaintiff was found to possess 

nothing that would endanger 

airline safety. Moreover, an 

investigatory detention and arrest 

are constitutional only if 

supported by reasonable suspicion 

of criminal activity or probable 

cause of a specific crime. Here, 

the amended complaint does not 

provide a reasonable inference of 

individualized suspicion or 

probable cause for the prolonged 

detention and arrest of plaintiff.

If the facts alleged are true, the 

TSA’s seizure of plaintiff 

amounted to an investigatory 

detention, which escalated to an 

arrest when the [Philadelphia 

Police Department] handcuffed 

and locked him in a cell at the 

direction of the TSA and JTTF. 

Accordingly, the amended 

complaint adequately alleges that 

each individual defendant 

participated in subjecting plaintiff 

to an intrusion upon his personal 

freedom for more than five hours. 

There were no grounds for 

reasonable suspicion of any 

criminality or probable cause. 

Early on, it was determined that 

he posed no threat to airline 

safety.

Joint Appendix (JA) 84-85 (citations omitted).

The court explained its refusal to dismiss George’s 

First Amendment claim as follows:

The amended complaint also 

plausibly sets forth a First 
9

Amendment violation. Except for 

certain narrow categories, “all 

speech is protected by the First 

Amendment.” The “right to 

receive information and ideas” is 

also well-established. To proceed 

on the retaliation claim, plaintiff 

must plead “(1) that he engaged in 

constitutionally-protected activity; 

(2) that the government responded 

with retaliation; and (3) that the 

protected activity caused the 

retaliation.” 

The factual matter contained in 

the amended complaint suggests 

that the entirety of plaintiff’s 

airport experience may fairly be 

attributable to his possession of 

materials protected by the First 

Amendment. Plaintiff was “jailed 

for several hours . . . solely 

because he passed through an 

airport screening checkpoint with 

a set of Arabic-English flashcards 

and a book critical of American 

foreign policy.” Am. Compl. ¶ 1. 

TSA screeners inspected the 

flashcards and one screener 

“flipped through the pages of 

books that Mr. George had” and 

the other screener discussed the 

flashcards with their supervisor. 

Id. ¶¶ 27-29. The TSA supervisor 

questioned plaintiff because the 

flashcards were “suspicious.” Id. 

¶¶ 37-39. “After noticing the 

book, the TSA supervisor 

continued her hostile and 

aggressive questioning . . . .” Id. 

¶¶ 36-37. The amended 

complaint adequately alleges that 

each defendant violated plaintiff’s 
10

right to read, study and possess 

protected materials by arresting 

and detaining him for his exercise 

of those rights. 

JA 86 (certain citations omitted).

The court also explained that the individual Federal 

Officials’ assertion of qualified immunity, “may be clarified 

by discovery.” JA 87.

The Federal Officials then filed this appeal from the 

district courts’ October 28, 2011, Order.

9

III. APPELLATE JURISDICTION AND STANDARD 

OF REVIEW.

Before addressing the merits, we must first determine 

whether we have jurisdiction. See In re Flat Glass Antitrust 

Litig., 288 F.3d 83, 88 n.5 (3d Cir. 2002) (quoting In re Ford 

Motor Co., 110 F.3d 954, 958-59 (3d Cir. 1997) (We “have 

an ‘independent responsibility to examine our own 

jurisdiction sua sponte.’”).

10

The district court denied the individual Federal 

Officials’ Rule 12(b)(6) motions to dismiss, “because the 

amended complaint alleges claims for relief that are 

‘plausible on [their] face.’” Apparently unsure about whether 

the district court was rejecting the defendant’s assertion of 

qualified immunity, the individual Federal Officials filed an

unopposed motion for clarification. 

In response to the motion, the district court stated that 

George’s amended complaint “contains sufficient factual 

allegations of specific conduct on the part of each defendant 

that, if true, constitute violations of plaintiff’s First and 

 

9We treated this as an Amended Notice of Appeal.

10

 The Clerk of this Court initially entered an order stating 

that the appeal was not taken from a final order and asking 

the parties to address this Court’s jurisdiction. Following the 

parties’ response to that Order, the Clerk referred the 

jurisdictional issue to this merits panel. 
11

Fourth Amendment rights.” The court also concluded that the 

individual federal defendants’ assertion of qualified immunity

“may be clarified by discovery.”

After a review of the parties’ initial submissions and 

their briefs, it is clear that we have jurisdiction over this 

appeal.

“Ordinarily we do not have jurisdiction to review 

district court orders denying motions to dismiss . . . because 

there is no final order within the meaning of 28 U.S.C. § 

1291.” Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir. 1994) 

(citation omitted). However, in Ashcroft v. Iqbal, 556 U.S. 

662, 672-675 (2009), the Supreme Court held that a district 

court order denying a motion to dismiss based on qualified 

immunity is appealable under the collateral order doctrine. 

Here, however, the district court did not specifically 

engage in the traditional qualified immunity analysis before 

denying the individual federal defendants’ motions to 

dismiss. Rather, as noted, in its order addressing the 

individual federal defendants’ motion for clarification, it 

simply said the “defense of qualified immunity in this case 

may be clarified by discovery.” However, in that same order 

the district court held that the amended complaint stated a 

valid claim against each federal defendant for violation of the 

First and Fourth Amendments. Thus, because the district 

court held that the amended complaint sufficiently pled valid 

constitutional claims against the individual federal 

defendants, the practical effect of the district court’s order

was a denial of the defense of qualified immunity. 

Accordingly, we will regard that order as an appealable 

collateral order. 

Where the district court bases its refusal to grant 

a qualified-immunity motion on the premise 

that the court is unable, . . . or prefers not to, 

determine the motion without discovery. . ., that 

refusal constitutes at least an implicit decision 

that the complaint alleges a constitutional claim 

on which relief can be granted. That purely 

legal decision does not turn on whether the 

plaintiff can in fact elicit any evidence to 

support his allegations; it thus possesses the 

requisite finality for immediate appealability 
12

under the collateral order doctrine. . . . A 

district court’s perceived need for discovery 

does not impede immediate appellate review of 

the legal questions of whether there is a 

constitutional right at all and, if so, whether it 

was clearly established at the time of the alleged 

conduct, for until these threshold immunity 

questions are resolved, discovery should not be 

allowed.

X-Men Security, Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)

(citations, internal quotation marks and brackets omitted). 

The Supreme Court has repeatedly “stressed the 

importance of resolving [qualified] immunity questions at the 

earliest possible stage of the litigation.” Hunter v. Bryant, 

502 U.S. 224, 227 (1991). Thus, district courts should move 

“expeditiously to weed out suits . . . without requiring a 

defendant who rightly claims qualified immunity to engage in 

expensive and time-consuming preparation to defend the suit 

on the merits.” Seigert v. Gilley, 500 U.S. 226, 232 (1991). 

Qualified immunity is not merely a defense, but also “an 

entitlement not to stand trial or face the other burdens of 

litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001). 

Accordingly, “any claim of qualified immunity must be 

resolved at the earliest possible stage of the litigation.” Miller 

v. Clinton County, 544 F.3d 542, 547 (3d Cir. 2008).

“We exercise de novo review of a district court’s 

denial of a motion to dismiss on qualified immunity grounds 

as it involves a pure question of law.” James v. City of 

Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citation 

omitted). In reviewing a denial of qualified immunity at the 

12(b)(6) stage of litigation, we must accept plaintiff’s 

allegations as true and draw all inferences in his or her favor. 

Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 2006). 

IV. THE QUALIFIED IMMUNITY DOCTRINE.

Qualified immunity shields government officials from 

personal liability for civil damages “insofar as their conduct 

does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” 
13

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The 

doctrine is intended “to mitigate the social costs of exposing 

government officials to personal liability,” Farmer v. 

Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998), by giving 

officials “breathing room to make reasonable but mistaken 

judgments about open legal questions.” Ashcroft v. Al-Kidd, 

131 S.Ct. 2074, 2085 (2011). Properly applied, it protects 

“all but the plainly incompetent or those who knowingly 

violate the law.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 

341 (1986). 

Determining whether a right alleged to have been 

violated is so clearly established that any reasonable officer 

would have known of it “must be undertaken in light of the 

specific context of the case, not as a broad general 

proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) 

(citation and quotation marks omitted). In order for the 

official to lose the protections of qualified immunity, 

“existing precedent must have placed the statutory or 

constitutional question beyond debate.” Al-Kidd, 131 S.Ct. at 

2083.

Because a government official may only be held 

personally liable under Bivens “for his or her own 

misconduct,” the plaintiff must allege that “each 

Government-official defendant, through the official’s own 

individual actions, has violated the Constitution.” Ashcroft v. 

Iqbal, 556 U.S. 662, 676 (2009).

Accordingly, in order to overcome the defense of 

qualified immunity here, George must allege facts showing 

that the conduct of each individual federal defendant (1) 

“violated a statutory or constitutional right, and (2) that the 

right was ‘clearly established’ at the time of the challenged 

conduct.” Al-Kidd, 131 S.Ct. at 2080. However, we need not 

undertake our inquiry in that order. Pearson v. Callahan, 555 

U.S. 223, 236 (2009).

V. DISCUSSION

The individual Federal Officials make a number of 

arguments in support of their appeal. Each is discussed 

separately below. 
14

A. George’s factual allegations do not establish that any 

individual

Federal Official violated his clearly established rights

under the Fourth Amendment.

Before addressing the merits of this argument, it is first 

necessary to consider airport security screenings in context 

with the Fourth Amendment’s limitations on governmental 

searches. The Fourth Amendment provides: 

The right of the people to be 

secure in their persons, houses, 

papers, and effects, against 

unreasonable searches and

seizures, shall not be violated, and 

no Warrants shall issue, but upon 

probable cause, supported by 

Oath or affirmation, and 

particularly describing the place 

to be searched, and the persons or 

things to be seized.

U.S. Const. Amend. IV.

In United States v. Hartwell, 436 F.3d 174 (3d Cir. 

2006), we held that a warrantless airport security screening of 

a passenger and his baggage without individualized suspicion 

is tantamount to a permissible administrative search under the 

Fourth Amendment. There, Hartwell arrived at the 

Philadelphia International Airport intending to catch a flight 

to Phoenix, Arizona. He placed his carry-on luggage on the 

conveyor belt to be x-rayed, and approached a metal detector. 

His luggage was scanned without incident, but he set off the 

magnetometer when he walked through it. A TSA Officer 

took Hartwell aside after he passed through the metal detector 

a second time. The TSA Officer then used a magnetic wand 

to determine why Hartwell had triggered the metal detector. 

The wand revealed a solid object in Hartwell’s pocket and the 

TSA Officer asked to see it. Ultimately, the TSA Officers 

discovered that the object was crack cocaine, and Hartwell 

was arrested by the police. 
15

In his appeal following a conditional guilty plea,11

Hartwell argued that the drugs should have been suppressed 

because the search violated the Fourth Amendment. We 

disagreed and held that the search “was permissible under the 

administrative search doctrine.” 436 F.3d at 177 (quoting 

United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005) 

(“Airport screenings of passengers and their baggage 

constitute administrative searches and are subject to the 

limitations of the Fourth Amendment.”).

We began our analysis in Hartwell by observing that 

the Fourth Amendment “limits government action in two 

ways. First, it requires that searches and seizures be 

reasonable, and, second, it states that when a warrant is 

required – in circumstances that are not explicitly defined by 

the text – it must have certain characteristics.” Id. (citation 

omitted). We then noted that the Supreme Court has “read 

the Amendment’s twin commands in tandem, holding that 

when people have a reasonable expectation of privacy in their 

persons or effects, all searches and seizures must be 

supported by a warrant, unless they fall into one of the 

exceptions to that requirement.” Id. (citation omitted). The 

“first step in Fourth Amendment analysis is [identifying] 

whether a search or seizure has taken place.” Id. However, 

the government conceded that “an airport pre-boarding 

security screening is a search,” id. It was therefore not 

disputed that Hartwell had “experienced a single, warrantless 

search, which was initiated without individualized suspicion” 

and “was not conducted pursuant to a warrant.” Id. at 178. 

Thus, in order to survive a Fourth Amendment challenge, “the 

search must [have been] grounded in an exception to the 

warrant requirement.” Id.

In concluding that “Hartwell’s search at the airport 

check-point was justified by the administrative search 

doctrine,” id., we first explained that:

A search or seizure is ordinarily 

unreasonable in the absence of 

individualized suspicion of 

wrongdoing. While suspicion is 

 

11 Hartwell reserved his right to appeal the denial of his 

suppression motion in his plea agreement. 
16

not an “irreducible” component of 

reasonableness, the Supreme 

Court has recognized only limited 

circumstances in which the usual 

rule does not apply. These 

circumstances typically involve 

administrative searches of 

“closely regulated” businesses, 

other so-called “special needs” 

cases, and suspicionless 

“checkpoint” searches.

Id. (citation, brackets, footnotes and certain internal quotation 

marks omitted).12 We then noted that:

Suspicionless checkpoint searches 

are permissible under the Fourth 

Amendment when a court finds a 

favorable balance between “the 

gravity of the public concerns 

served by the seizure, the degree 

to which the seizure advances the 

public interest, and the severity of 

the interference with individual 

liberty.” Illinois v. Lidster, 540 

U.S. 419, 427 (2004) (quoting 

Brown v. Texas, 443 U.S. 47, 51 

(1979)). 

Id. at 178-789 (footnote omitted). 

Turning to the specifics of Hartwell’s search, we held 

that “the airport checkpoint passes the Brown [v. Texas, 

supra] test.” Id. at 179. In doing so we noted the following 

considerations. First, “there can be no doubt that preventing 

terrorist attacks on airplanes is of paramount importance.” Id. 

(citations omitted). Second, “airport checkpoints also advance 

the public interest” because “absent a search, there is no 

effective means of detecting which airline passengers are 

 

12 In Hartwell, we noted that the Supreme Court has not 

directly addressed the issue of airport administrative searches, 

but that it has discussed them in dicta in two cases. 436 F.3d 

at 178 n.5 (citing cases).
17

reasonably likely to hijack an airplane.” Id. at 179-80 

(citations and brackets omitted). Third, “the procedures 

involved in Hartwell’s search were minimally invasive.” Id. 

at 180 (footnote omitted). 

They were well-tailored to protect 

personal privacy, escalating in 

invasiveness only after a lower 

level of screening disclosed a 

reason to conduct a more probing 

search. The search began when 

Hartwell simply passed through a 

magnetometer and had his bag xrayed, two screenings that 

involved no physical touching. 

Only after Hartwell set off the 

metal detector was he screened 

with a wand – yet another less 

intrusive substitute for a physical 

pat-down. And only after the 

wand detected something solid on 

his person, and after repeated 

requests that he produce the item, 

did the TSA agents (according to 

Hartwell) reach into his pocket.

In addition to being tailored to 

protect personal privacy, other 

factors make airport screening 

procedures minimally intrusive in 

comparison to other kinds of 

searches. Since every passenger 

is subjected to a search, there is 

virtually no stigma attached to 

being subjected to a search at a 

known, designated airport search 

point. Moreover, the possibility 

for abuse is minimized by the 

public nature of the search. 

Unlike searches conducted on 

dark and lonely streets at night 

where often the officer and the 

subject are the only witnesses, 

these searches are made under 
18

supervision and not far from the 

scrutiny of the traveling public. 

And the airlines themselves have 

a strong interest in protecting 

passengers from unnecessary 

annoyance and harassment. 

Id. (citations and internal quotation marks omitted). “[T]he 

entire procedure is rendered less offensive – if not less 

intrusive – because air passengers are on notice that they will 

be searched.” Id. 

Air passengers choose to fly, and 

screening procedures of this kind 

have existed in this country since 

at least 1974. The events of 

September 11, 2001, have only 

increased their prominence in the 

public’s consciousness. It is 

inconceivable that Hartwell was 

unaware that he had to be 

searched before he could board a 

plane. Indeed, he admitted that he 

had previously been searched 

before flying.

Id. at 181 (citations omitted). 

Based on these considerations, we concluded:

Hartwell’s search does not offend 

the Fourth Amendment even 

though it was initiated without 

individualized suspicion and was 

conducted without a warrant. It is 

permissible under the 

administrative search doctrine 

because the State has an 

overwhelming interest in 

preserving air travel safety, and 

the procedure is tailored to 

advance that interest while 

proving to be only minimally 

invasive. . . .

Id. (footnote omitted).
19

Because we held that a search pursuant to routine 

airport screening was constitutionally permissible under the 

administrative search doctrine, we found it unnecessary to 

address issues concerning consent-based rationales for airport 

searches. 436 F.3d at 181 n.11. However, we note that the 

Court of Appeals for the Ninth Circuit, has held that the 

constitutionality of an airport screening search does not 

depend on the passenger’s purported consent. In United 

States v. Aukai, 497 F.3d 955 (9th Cir. 2007), the court held:

The constitutionality of an airport 

screening search, however, does 

not depend on consent, and 

requiring that a potential 

passenger be allowed to revoke 

consent to an ongoing airport 

security search makes little sense 

in a post-9/11 world. Such a rule 

would afford terrorists multiple 

opportunities to attempt to 

penetrate airport security by 

electing not to fly on the cusp of 

detection until a vulnerable portal 

is found. This rule would also 

allow terrorists a low-cost method 

of detecting systematic 

vulnerabilities in airport security, 

knowledge that would be 

extremely valuable in planning 

future attacks. Likewise, given 

that consent is not required, it 

makes little sense to predicate the 

reasonableness of an 

administrative airport screening 

search on an irrevocable implied 

consent theory. Rather, where an 

airport screening search is 

otherwise reasonable and 

conducted pursuant to statutory 

authority . . . all that is required is 

the passenger’s election to attempt 

entry into the secured area. Under 

current TSA regulations and 
20

procedures, that election occurs 

when a prospective passenger 

walks through the magnetometer 

or places items on the conveyor 

belt of the x-ray machine.

497 F.3d at 961 (citations and footnote omitted). 

With this background as our analytical compass, we

examine the merits of the individual Federal Officials’ Fourth 

Amendment argument.

1. George’s factual allegations do not establish a 

Fourth Amendment violation.

(a). The TSA Officials – John Does 1-2 and 

Jane Doe 3.

The TSA Officials – John Does 1 and 2, and Jane Doe 

3 – submit that George’s factual allegations do not establish 

that they violated a Fourth Amendment right. We agree.

George alleges that the two TSA screening Officials, 

John Does 1 and 2, inspected his Arabic-English flashcards, 

searched his carry-on bag, swabbed his cell phone for 

explosives, and that one of them contacted their supervisor 

for assistance. John Does 1 and 2 kept him in the side 

screening area for 30 minutes. Am. Compl. ¶¶ 23, 27-30. 

George was not handcuffed while detained in the screening 

area. Then, the TSA Supervisor, Jane Doe 3, arrived, and was 

informed about the Arabic-English flashcards. She responded 

by further questioning George for about 15 minutes. 

Amended Compl. ¶¶ 33-40. During that questioning, while

Jane Doe 3 was in mid-sentence, a Philadelphia Police 

Officer, William Rehiel, arrived at the scene, handcuffed 

George and took him to the Airport Police Station. Amended 

Compl. ¶¶ 42-45. 

In his Memorandum in Opposition to the United 

States’ Motion to dismiss,13 George conceded that the search 

 

13 As we have noted, see n.8, supra, George asserted claims 

against the United States under the Federal Tort Claims Act. 
21

conducted by the two TSA screening Officials who searched 

his person and baggage “began properly” and that they acted 

lawfully in “conduct[ing] a thorough search of his carry-on 

items for weapons and explosives.” Plaintiff’s Memorandum 

in Opposition to United States’ Motion to Dismiss at 2-3. 

However, in the district court George argued that once this 

search failed to discover any explosives or other hazardous 

weapons, John Does 1 and 2 had to release him and their 

failure to do so, and to instead contact their supervisor (Jane 

Doe 3), violated his Fourth Amendment rights. 

The district court agreed, opining that the TSA 

screeners’ authority to search and question George “appears 

to have been exhausted after the first 10-15 minutes, once 

plaintiff was found to possess nothing that would endanger 

airline safety.” JA 84. The district court then held:

[A]n investigatory detention and arrest are 

constitutional only if supported by reasonable 

suspicion of criminal activity or probable cause 

of a specific crime. Here, the amended 

complaint does not provide a reasonable 

inference of individualized suspicion or 

probable cause for the prolonged detention and 

arrest of plaintiff. . . . If the facts alleged are 

true, the TSA’s seizure of plaintiff amounted to 

an investigatory detention and arrest of plaintiff.

JA 84-85 (citing Terry v. Ohio, 392 U.S. 1 (1968) and

Orsatti v. N.J. State Police, 71 F.3d 480 (3d Cir. 1995). We 

disagree. 

In Terry, the Supreme Court announced the general 

standards for a limited search pursuant to a brief investigative 

detention, and in Orsatti, we recited the general standards 

governing an arrest. Although neither case is definitive in the 

context of the Fourth Amendment parameters within which 

TSA officials can detain, search and question passengers at an 

airport security checkpoint, we did examine those limitations 

in United States v. Hartwell, supra. 

 

However, as also noted, those claims are not before us in this 

appeal. 
22

As discussed above, we there held that airport security 

screening of a passenger and his/her baggage without a 

warrant or individualized suspicion is permissible under the 

Fourth Amendment as an administrative search. In Hartwell, 

we upheld an airport screening search that involved an 

escalating level of scrutiny and intrusion where “a lower level 

of scrutiny disclosed a reason to conduct a more probing 

search.” 436 F.3d at 180. 

The Court of Appeals for the Ninth Circuit has also 

upheld an airport security search involving increased levels of 

screening. In United States v. Aukai, supra, Aukai arrived at 

the Honolulu International Airport to take a flight from 

Honolulu, Hawaii, to Kona, Hawaii. He checked in at the 

ticket counter but did not produce a government-issued ID. 

Accordingly, the ticket agent wrote “No ID” on Aukai’s 

boarding pass. 

Aukai then went to the security checkpoint, where 

signs advised prospective passengers that they and their 

baggage were subject to search. He entered the security 

checkpoint, placed his shoes and other items into a plastic bin 

and voluntarily walked through the magnetometer. The 

magnetometer did not signal the presence of metal as he 

walked through it, and nothing in his personal belongings 

triggered an alarm. After he walked through the 

magnetometer, Aukai presented his boarding pass to a TSA 

officer.

Pursuant to TSA procedures, a passenger who presents 

a boarding pass with “No ID” written on it is subject to 

secondary screening even though s/he has passed through the 

initial screening without triggering an alarm or otherwise 

raising suspicion. Pursuant to that policy, a TSA official 

passed a hand-held magnetometer or wand around Aukai’s 

body and an item in his pocket triggered an alarm. Aukai 

repeatedly refused to produce the item and tried to leave. 

When a TSA supervisor told Aukai to empty his pocket, he

again refused. The TSA supervisor then touched the outside 

of Aukai’s pocket and concluded that Aukai had something in 

his pocket. Aukai eventually removed an object wrapped in 

tissue paper from his pocket and placed it in the tray in front 

of him. Fearing that the item may be a weapon, the TSA 
23

supervisor summoned a nearby police officer. The TSA 

supervisor then unwrapped the object and discovered a glass 

pipe used to smoke methamphetamine. The police officer 

arrested Aukai and, after a search, discovered several bags of 

methamphetamine. Aukai was eventually taken into federal 

custody and admitted to illegal possession of 

methamphetamine after being advised of his Miranda rights.

Aukai was indicted for knowingly and intentionally 

possessing, with intent to distribute, 50 grams or more of 

methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 

841(b)(1)(A)(viii). He eventually entered a conditional guilty 

plea and appealed the denial of his motion to suppress the 

evidence that was seized pursuant to the airport search and his 

subsequent statement.

On appeal, the Ninth Circuit noted that it had 

previously held that airport screening searches are 

constitutionally permissible administrative searches under the 

Fourth Amendment. Aukai, 497 F.3d at 959-60 (citing cases). 

It then held, citing to our decision in Hartwell, that the search 

procedures to which Aukai was subjected were 

constitutionally permissible because they were “minimally 

intrusive.” Id. at 962 (citing Hartwell, 436 F.3d at 180). The 

court of appeals also concluded that the “duration of the 

detention associated with his airport screening” – eighteen 

minutes – was “reasonable.” Id. at 962-963. For all of these 

reasons, the court held that “the airport screening search of 

Aukai was a constitutionally reasonable administrative 

search.” Id. at 963. 

We believe that the conduct of the TSA Officials here 

was also consistent with Fourth Amendment limitations. It is 

not disputed that the initial airport screening to which George 

was subjected by the TSA Officials was a constitutionally 

permissible administrative search under the Fourth 

Amendment, even though it was initiated without 

individualized suspicion and was conducted without a 

warrant. It was not until after the TSA Officials discovered 

that he was carrying some handwritten Arabic-English 

flashcards containing such words as “bomb,” “terrorist,” 

“explosion,” “an attack,” “battle,” “to kill,” “to target,” “to 

kidnap,” and “to wound,” that George was taken by John 
24

Does 1 and 2 to another screening area where he was 

eventually questioned by Jane Doe 3. However, at that point, 

the Officials had a justifiable suspicion that permitted further 

investigation as long as the brief detention required to 

conduct that investigation was reasonable. See Terry, 392 

U.S. at 21.14

We caution, however, that the detention at the hands of 

these TSA Officials is at the outer boundary of the Fourth 

Amendment. Once TSA Officials were satisfied that George 

was not armed or carrying explosives, much of the concern 

that justified his detention dissipated. However, it did not 

totally vanish or suggest that further inquiry was not

warranted. Suspicion remained, and that suspicion was 

objectively reasonable given the realities and perils of air 

passenger safety. The TSA Officials still were confronted 

with an individual who was carrying Arabic-English 

flashcards bearing such words as: “bomb,” “terrorist,” “to 

kill,” etc. In a world where air passenger safety must contend 

with such nuanced threats as attempts to convert underwear 

into bombs and shoes into incendiary devices, we think that 

the brief detention that followed the initial administrative 

search of George was reasonable.

Nevertheless, it is important to note that harboring 

views that appear to be hostile to the United States 

government or its foreign policy is most assuredly not, by 

itself, grounds for detaining someone and investigating them 

pursuant to the administrative search doctrine or an 

investigative seizure under Terry. However, it is simply not 

reasonable to require TSA Officials to turn a blind eye to 

someone trying to board an airplane carrying Arabic-English 

flashcards with words such as “bomb,” “to kill,” etc. Rather, 

basic common sense would allow those Officials to take 

reasonable and minimally intrusive steps to inquire into the 

potential passenger’s motivations.

 

14 In Terry, the Court reasoned: “there is no ready test for 

determining reasonableness other than by balancing the need 

to search [or seize] against the invasion which the search [or 

seizure entails]” (internal quotation marks omitted, brackets 

in original).
25

Thus, we cannot say that it was unreasonable for John 

Does 1 and 2 to briefly continue George’s seizure to consult 

with a supervisor. As noted above, 15 minutes after the 

supervisor (Jane Doe 3) arrived, and while she was in midsentence of a conversation with George, Officer Rehiel of the 

Philadelphia Police Department arrived, placed George in 

handcuffs and took him away. At that point, the rather brief 

detention that arose from the initial administrative search

ended. As we explain below, despite George’s failed attempt 

at establishing an agency relationship, none of the TSA 

Officials played any further role in the protracted seizure that 

followed.

Thus, the actions of the TSA Officials corresponded to 

the level of concern raised by the flashcards.

15 As we have 

already observed, an airport security search may become 

more invasive when “a lower level of screening disclose[s] a 

reason to conduct a more probing search.” Hartwell, 463 

F.3d at 180. Indeed, we think that these TSA Officials would 

have been derelict in their duties had they simply ignored the 

flashcards.16

 

15 Admittedly, some of the Arabic-English flashcards also 

contained harmless, everyday words. However, we do not 

think that the presence of the flashcards containing 

innocuous words mitigates the presence of the cards 

containing threatening and violent words. We appreciate that 

George was studying Arabic and claimed to have these items 

to advance his study of Arabic language, culture stories in 

Arabic media and literature. The TSA Officials did not have 

to accept that explanation and allow him to board an airplane 

without any further inquiry. Rather, it was reasonable for 

them to make additional inquiries and to consult with a 

supervisor. 

16 We reiterate however, that this does not mean that John 

Does 1 and 2 could have subjected George to a lengthy 

detention based merely on the suspicions that arose from the 

words on the flashcards. Nevertheless, we cannot hold that 

continuing to detain George for approximately 30 minutes 

under the circumstances here was so unreasonable that it 

violated the limitations that must surround administrative 

searches.
26

Moreover, George’s allegation that “he was not free to 

leave and believed that he was not free to leave” the screening 

area during the interrogation, Amended Compl. ¶ 41, does not 

establish that TSA Officials violated the Fourth Amendment. 

Indeed, in Hartwell, we flatly rejected the contention that a 

passenger has a right to leave an airport security checkpoint 

once the TSA officials increase the level of their screening 

scrutiny. We wrote: 

Hartwell argues that once the 

TSA agents identified the object 

in his pocket and he refused to 

reveal it, he should have had the 

right to leave rather than empty 

his pockets. We reject this theory. 

. . . [A] right to leave once 

screening procedures begin would 

constitute a one-way street for the 

benefit of a party planning airport 

mischief, and would encourage 

airline terrorism by providing a 

secure exit where detection was 

threatened.

436 F.3d at 181 n.12 (citations and internal quotation marks 

omitted). Airport screening is obviously informed by unique 

concerns and risks. Accordingly, we are reluctant to attach the 

same weight to the inability to leave that that may have in a 

different context. 

We therefore do not agree with George’s contention

that once John Doe 1 and John Doe 2 completed their 

administrative search for weapons and explosives (within ten 

to fifteen minutes, Amended Compl. ¶¶ 27-28), without 

finding weapons or explosives, they had reached the 

parameters of a legitimate administrative search. 

Under the circumstances alleged here, the Fourth 

Amendment was not violated by continuing this investigation 

even though John Does 1 and 2 found no weapons or 

explosives on George’s person or luggage. Items other than 

weapons or explosives can give a TSA Screening Official 

reason to increase the level of scrutiny when circumstances 
27

suggest that it is reasonable to conduct a more probing 

investigation. This does not, of course, give TSA screeners 

license to detain and inquire based on a mere hunch, and we 

certainly do not suggest that TSA screeners have a license to 

detain purportedly suspicious travelers for a protracted 

amount time. But that is not what happened here.17

Given the circumstances here, it was reasonable for the 

TSA Screening Officials to increase the level of scrutiny by 

briefly detaining George so that he could be further 

questioned in an effort to ascertain whether he posed a risk to 

passengers or airplane security. After the justifiable 

administrative search conducted by the TSA Officials, 

George was detained by Philadelphia Police who are not part 

of this appeal.

For all of the above reasons, we find that George has 

failed to allege facts showing that the TSA Screening 

Officials – John Does 1 and 2 and Jane Doe 3 – violated his 

Fourth Amendment rights. We therefore need not proceed to 

the second step of the qualified immunity analysis to 

determine whether that right was clearly established at the 

time of the challenged conduct. See Scott v. Harris, 550 U.S. 

372, 377 (2007). 

Accordingly, the TSA Screening Officials are entitled 

to qualified immunity on George’s Fourth Amendment claim, 

and we will vacate the district court’s order denying their 

motion to dismiss and remand with directions to grant the 

motion. 

(b). FBI Agents assigned to the JTTF – John Does 4 and 5.

The two FBI Agents assigned to the JTTF also argue 

that the factual allegations in the amended complaint do not 

establish that they violated a Fourth Amendment right. We 

agree. The essence of the allegations regarding the JTTF 

Agents is that they went to the Airport Police Station at the 

request of the Philadelphia Police in order to question 

 

17 We similarly caution against detaining someone solely 

because of their nationality and/or choice of reading material. 

However, we reiterate that that is not what happened here.
28

George, searched George’s carry-on luggage, and questioned 

him for about thirty minutes before concluding that he was

not a security threat and allowing him to leave. Amended 

Compl. ¶¶ 63-73. The district court did not explain how or 

why these allegations stated a violation of the Fourth 

Amendment. 

We are unable to find any authority that would 

support a finding that Federal Officials’ response to a call for 

assistance by local police and their subsequent questioning of 

the subject of that call for 30 minutes constitutes a Fourth 

Amendment violation. Moreover, George has not provided 

us with any authority to support his contention that his 

allegations are sufficient to support a claim of a Fourth 

Amendment violation against the JTTF Officials.

Accordingly, we again need not proceed to the second 

step of the qualified immunity analysis. See Scott, 550 U.S. at 

377. We hold that the JTTF Agents are entitled to qualified 

immunity and we will therefore vacate the district court’s 

order denying their motion to dismiss and remand with 

directions to grant the motion to dismiss. 

As we have noted, George also asserted a First 

Amendment claim against the individual Federal Officials. 

However, before beginning a discussion of that claim, it is 

necessary to discuss the basis for George’s contention that the 

Federal Officials violated the Fourth Amendment by leaving

him “locked in a jail cell for four hours (much of the time in 

handcuffs) without further investigation,” that they were 

“directly involved in detaining [him] and instructing the local 

police to prolong his seizure,” and that his “seizure escalated 

from an investigatory stop to an arrest when the local police, 

acting on the TSA’s request, handcuffed [him], led him to the 

airport jail, and locked him in a cell.” George is 

apparently contending that the individual Federal Officials are 

somehow liable for his purportedly unconstitutional arrest and 

prolonged detention by Philadelphia Police Officers. George 

bases that contention on his assertion that the Federal 

Officials had either legal or functional control over the 
29

decisions and actions of the Philadelphia Police Officers.18 

The contention is meritless. 

The only allegations in George’s amended complaint 

to support this rather attenuated agency theory that the 

Philadelphia Police Officers were under the legal or 

functional control of the TSA Screening Officials are as 

follows:

 John Doe 1 and John Doe 2 were 

Transportation Security Officers 

of the [TSA] – commonly known 

as “airport screeners” – at the time 

of the events giving rise to this 

action. Each was responsible for 

detaining Mr. George for 30 

minutes at the screening area, and, 

upon information and belief, they 

summoned the TSA Supervisor 

known here as Jane Doe 3, as well 

as the Philadelphia Police 

Department, for further 

interrogation, detention and arrest 

of Mr. George. . . . Amended 

Compl. ¶ 5

 Jane Doe 3 was an official of the 

[TSA] at the time of the events 

giving rise to this action. Upon 

information and belief, Jane Doe 

3 held a position that involved 

supervising airport screeners, 

including Defendants John Does 1 

and 2. Jane Doe interrogated Mr. 

George in a hostile and aggressive 

manner, continued his detention, 

and turned him over to Defendant 

 

18 As noted, see n.8, supra, George also asserted claims 

against the Philadelphia Police Officers pursuant to 42 U.S.C. 

§ 1983. However, those claims are not before us in this 

appeal, and we take no position on the propriety of the 

Philadelphia Police Officers’ conduct in this case.
30

Rehiel to be handcuffed, arrested, 

jailed, and further interrogated. . . 

. Amended Compl. ¶ 6.

The amended complaint further alleges that while 

George was being questioned by Doe 3, Officer Rehiel,

arrived on the scene, handcuffed George and took him to the 

Airport Police Station without speaking to any of the Federal

Officials. Amended Compl. ¶¶ 42-45. Finally, the amended 

complaint alleges that George’s “detention, arrest, 

unnecessary and extended restraint, incarceration, and 

interrogation . . . by the Defendants, as described in [the 

preceding paragraphs], constituted an unreasonable search 

and seizure in violation of clearly established rights under the 

Fourth . . . Amendment[] to the United States Constitution.” 

Amended Compl. ¶ 81.

As we have noted, in reviewing a denial of qualified 

immunity pursuant to a denial of a motion under Rule 

12(b)(6), we must accept plaintiff’s allegations as true and 

draw all inferences in plaintiff’s favor. Torisky, 446 F.3d at 

442. However, “a pleading that offers ‘labels and 

conclusions’ or ‘a formulaic recitation of the elements of a 

cause of action will not do.’” Iqbal, 556 U.S. at 678 (citing 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

“Nor does a complaint suffice if it tenders ‘naked 

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 

at 678 (citing Twombly, at 557). “[T]he tenet that a court 

must accept as true all the allegations contained in a 

complaint is inapplicable to legal conclusions.” Id. 

George’s allegations are an attempt to construct a 

theory that the Philadelphia Police Officers acted under the 

legal or functional control of the TSA Screening Officials. 

This purported agency relationship is based entirely on 

George’s allegations that Does 1 and 2 “summoned . . . the 

Philadelphia Police Department, for [his] further 

interrogation, detention and arrest,” and that Doe 3 “turned 

him over to [Police Officer Rehiel] to be handcuffed, arrested, 

jailed and further interrogated.” George attempts to further 

weave a tapestry of inferences culminating in a conclusion of 

agency by contending that an arrest is the inevitable result of 

summoning Police and turning someone over to them.
31

George cites the majority opinion in Tobey v. Jones, 

706 F.3d 379 (4th Cir. 2013), to support that contention. 

There, Tobey was scheduled to fly from Richmond, Virginia 

to Wisconsin to attend his grandfather’s funeral. He waited 

until there was a short line at the TSA screening checkpoint 

and then presented his boarding pass and ID to the TSA prescreening official. Tobey also placed his belt, shoes, 

sweatshirt and other carry-on items on the conveyor belt. 

However, TSA Official Smith diverted him from the standard 

screening device to the Advanced Imaging Technology 

(“AIT”) scanning unit for enhanced screening.

Anticipating that he might be subjected to enhanced 

screening, Tobey had written the text of the Fourth 

Amendment on his chest because he believed that AIT 

scanning was unconstitutional.19 Before going through the 

AIT unit, Tobey placed his sweatpants and t-shirt on the 

conveyor belt, leaving him dressed only in running shorts and 

socks and revealing the text of the Fourth Amendment written 

on his chest. Smith, the TSA Official, told Tobey that he did 

not need to remove his clothes. Tobey responded that he 

wanted to express his belief that the TSA’s advanced 

screening procedures violated the Fourth Amendment. 

Thereupon, Smith radioed for assistance. Smith’s 

supervisor, Jones, told Smith to order Tobey to remain in 

front of the AIT unit. Jones and an unknown TSA Official

then asked the Richmond International Airport (“RIA”) 

Police for assistance. Tobey never refused to undergo the 

AIT screening and never declined to comply with any TSA 

request.

RIA Police Officers arrived on the scene and 

immediately handcuffed and arrested Tobey. None of the 

TSA Officials informed the RIA Police about what had 

occurred at the screening station and the RIA police never 

asked. A Police Officer escorted Tobey to a side area and 

told him he was under arrest for creating a public disturbance. 

An unknown TSA Official searched Tobey’s belongings and 

 

19 This does not appear to have been particularly thoughtful, 

and it surely was not the least bit effective, but it certainly 

was creative. 
32

removed unidentified items. A Police Officer then collected 

Tobey’s belongings with the assistance of TSA Officials.

The RIA Police then took Tobey to the RIA Police 

Station where police officers questioned him and threatened 

him with various criminal sanctions. Tobey was eventually 

charged with the state crime of disorderly conduct in a public 

place. The police officers later released Tobey after

consulting with an Air Marshal from the Federal Air 

Marshal’s Joint Terrorism Task Force, and he boarded the 

plane without further incident after being held for over an 

hour. The county attorney subsequently dropped state 

criminal charges. 

Tobey filed a Bivens’ action against TSA Officials

Smith and Jones and a § 1983 action against the RIA Police 

Officers alleging violations of his Fourth and Fourteenth 

Amendment rights, his First and Fourteenth Amendments

rights, and his right to Equal Protection of the law under the 

Fourteenth Amendment. Thereafter, Smith and Jones, the 

TSA Officials, moved to dismiss all of the claims, asserting 

qualified immunity. The district court granted the TSA 

Officials’ motion to dismiss the Fourth Amendment and 

Equal Protection claims. However, it did not dismiss 

Tobey’s First Amendment retaliation claim against those 

officials. The Court of Appeals for the Fourth Circuit 

explained the district court’s reasoning as follows: 

The court held that because there 

is a question of whether the TSA 

Agents in fact radioed for 

assistance because of the message 

Plaintiff sought to convey or 

because of some other reasonable 

restriction on First Amendment 

activity in the security area, 

dismissal [of the First 

Amendment claims] on the basis 

of qualified immunity would be 

improper.

706 F.3d at 385 (citation, internal quotation marks and 

brackets omitted). 
33

The TSA Officials argued that Tobey had not alleged a 

facially valid First Amendment claim and that, even if he had, 

he had not alleged a violation of a clearly established 

constitutional right and so they were entitled to qualified 

immunity. 

For our purposes, it is important to note that the 

majority in Tobey concluded that before it could determine if 

Tobey had alleged a plausible First Amendment violation, it 

had to “correct an erroneous conclusion reached by the 

district court.” 706 F.3d at 385. The majority concluded that 

the district court had erred “in concluding that Mr. Tobey 

failed to plead [that the TSA Officials] in some way caused 

his arrest.” Id. (citation omitted) (brackets added). The 

district court had concluded 

that Mr. Tobey’s complaint is 

devoid of any facts suggesting 

that the [TSA Officials] – neither 

of whom are law enforcement 

officers with the power to arrest –

made any such assertion or 

otherwise indicated to the [RIA] 

police that [Tobey] should be 

arrested.

Id. (citation and internal quotation marks omitted) (brackets 

added).20 

Correcting what it believed to have been error, the 

majority stated: “[f]ortunately for Mr. Tobey, he was not 

required to state these precise magical words in order to 

plausibly plead that [the TSA Officials] caused his arrest.” 

Id. (citing Twombly, 550 U.S. at 555). The majority then 

concluded: 

It is an undoubtedly natural 

consequence of reporting a person 

 

20 TSA Screening Officials here remind us that they lack the 

authority to make an arrest. See TSA Management Directive 

1100.88-1(A) at 2. available at 

http://www.tsa.gov/assets/pdf/foia/TSA_MD_1100_88_1_Fin

al_0070511.pdf (omitting security screening screeners from 

categories of TSA employees authorized to make arrests). 
34

to the police that the person will 

be arrested; especially in the 

scenario we have here, where 

TSA and [RIA] police act in close 

concert. So long as Mr. Tobey’s 

complaint rendered it plausible 

that [the TSA Officials] helped 

effectuate his arrest, the district 

court should have factored the 

arrest into its decision as to 

whether Mr. Tobey alleged 

plausible Bivens claims against 

[the TSA Officials].

Id. at 386 (brackets added). Later, the majority opined: “It is 

reasonable to infer that whatever [the TSA Officials] told 

[RIA] police caused Mr. Tobey’s arrest.” Id. (brackets 

added). 

We disagree with the Tobey majority’s conclusion that 

“[i]t is an undoubtedly natural consequence of reporting a 

person to the police that the person will be arrested.” That 

conclusion does not appear to have been based on anything in 

the record. Rather, it seems to arise from the majority’s 

personal assumptions and inferences. However, absent 

something on the record to the contrary, it seems just as likely 

that police officers who are summoned by TSA Officials 

would use their own independent discretion to determine 

whether there are sufficient grounds to take someone into 

custody. 

Traditionally, law enforcement officers have the 

discretion in deciding whether to make an arrest. Burella v. 

City of Philadelphia, 501 F.3d 134, 145 (3d Cir. 2007), 

(citing Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 

748, 761 (2005)). Police officers clearly know that they need 

probable cause to arrest someone and we can assume that 

they know they face personal liability if they arrest someone 

without probable cause. See 42 U.S.C. § 1983; see also, e.g., 

Pritzker v. City of Hudson, 26 F. Supp.2d 433, 443 (N.D. 

N.Y. 1998) (“Police officers are presumed to know the law 

governing their conduct. Reasonable police officers would 

know that it is a violation of well-settled constitutional rights 
35

to arrest or prosecute someone absent probable cause.”) 

(citing Catone v. Spielman, 149 F.3d 156, 161 (2d Cir. 

1998)). 

Moreover, there is a distinct and constitutionally 

sacrosanct demarcation between the intrusion that is inherent

in an investigative detention and the kind of detention that is 

sufficiently intrusive to rise to the level of an arrest. For 

example, a Terry stop is an intermediate level of intrusion 

allowing police to conduct a limited investigation into the 

possibility of criminal activity based on reasonable suspicion 

“even though there is no probable cause to make an arrest.” 

Adams v. Williams, 407 U.S. 143, 145-46 ((1972). 

Accordingly, without more than appears on this record, we 

reject George’s argument that the Philadelphia Police Officers 

were under either the legal or functional control of the TSA 

Screening Officials. 

Furthermore, George’s allegations that the TSA 

Officials had either legal or functional control of the 

Philadelphia Police Officers cannot survive the pleading 

requirements established by the Court’s decision in Iqbal. 

Iqbal was a Pakistani Muslim who, after the 9/11 terrorist 

attacks, was arrested in the United States on criminal charges 

and detained by Federal officials. He claimed that he was 

deprived of a number of constitutional protections while in 

Federal custody and sued a number of Federal officials, 

including the Attorney General and the Director of the FB1. 

The Attorney General and the Director of the FBI were the 

only Federal officials before the Court. 

In his complaint, Iqbal alleged, inter alia, that the 

Attorney General and the Director of the FBI “‘knew of, 

condoned, and willfully and maliciously agreed to subject 

[him]’ to harsh conditions of confinement ‘as a matter of 

policy, solely on account of [his] religion, race, and/or 

national origin and for no legitimate penological interest,’” 

that “Ashcroft was the ‘principal architect’ of this invidious 

policy,” and that the Director of the FBI “was ‘instrumental’ 

in adopting and executing it.” 556 U.S. at 680-81 (record 

citations omitted). The Attorney General and the Director of 

the FBI moved to dismiss, asserting that they were entitled to 

qualified immunity. The district court denied the motion and 
36

the Court of Appeals for the Second Circuit affirmed. The 

Supreme Court granted certiorari and reversed.

After reviewing its prior decision in Twombly, supra, 

and analyzing the pleading standards contained in 

Fed.R.Civ.P. 8, the Court held that “[t]hese bare assertions . . 

. amount to nothing more than a formulaic recitation of the 

elements of a constitutional discrimination claim” and “[a]s 

such are conclusory and not entitled to be assumed true.” Id. 

at 681 (citations and internal quotation marks omitted). 

Here, the relevant allegations in George’s amended 

complaint are simply conclusory allegations of a Fourth 

Amendment violation.

21

 After Iqbal, we can no longer 

assume the truth of those averments in determining whether 

the complaint survives a Rule 12(b)(6) challenge. 

Accordingly, we reject George’s contention that the 

TSA Screening Officials are liable for what he alleges was his 

unconstitutional arrest and detention by the Philadelphia 

Police Officers. That contention, as we have explained, is 

based solely on his conclusory assertions that TSA Officials 

had either the legal or functional control over the decisions 

and actions of the Philadelphia Police Officers. 

We also reject George’s claim that allegations about 

the two JTTF Agents show that they participated in his 

allegedly unlawful seizure, arrest and detention. Those 

allegations are summarized above.22 The JTTF Agents 

simply responded to a call from the Philadelphia Police, 

questioned George for about thirty minutes, determined that 

he posed no security threat, and told him he was free to leave. 

The JTTF Agents were not at all involved in George’s 

allegedly unconstitutional seizure, arrest and detention. 

Indeed, the two JTTF Agents were responsible for George’s 

release from the alleged unconstitutional detention. Even 

though the JTTF agents were called to investigate a potential 

terrorist, and despite the fact that they knew George had been 

detained for over four hours because of suspicions raised by 

 

21 See p. 29-30, supra.

22 See p. 27, supra. 
37

his Arabic flash cards, the JTTF agents were able to 

determine that he posed no threat and allowed him to go on 

his way after spending only 30 minutes with him. 

B. George’s factual allegations do not establish that any 

individual Federal official violated his clearly established 

rights under the First Amendment.

As noted, in his amended complaint, George alleged 

that the Federal Officials searched and questioned him in 

retaliation for his possession of the Arabic-English flashcards 

and a political book critical of American policy in the Middle 

East in violation of his First Amendment Rights.23 As also 

noted, the district court, in response to the Federal Officials 

motion for clarification, held that the amended complaint 

plausibly set forth a First Amendment retaliation claim. 

In this portion of their appeal, the Federal Officials 

contend that the allegations in the amended complaint do not 

establish that they retaliated against George for his exercise of 

his First Amendment rights.24 

 

23 George’s amended complaint also alleges that the Federal 

Officials arrested and incarcerated him in violation of his 

First Amendment rights. However, we have already 

determined that the allegations in the amended complaint are 

insufficient to show that the Federal Officials somehow 

participated in, or were somehow responsible for, what 

George alleges was his unlawful seizure, arrest and detention 

by the Philadelphia Police. 

24 We are mindful of the fact that the Supreme Court has 

twice in recent years noted that it has not extended Bivens

implied causes of action to First Amendment claims. See 

Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2093 n.4 

(2012) (“We have never held that Bivens extends to First 

Amendment claims.”), and Ashcroft v. Iqbal, 556 U.S. 662, 

675 (2009) (“Because implied causes of action are disfavored, 

the Court has been reluctant to extend Bivens liability to any 

new context or new category of defendants. . . . Indeed, we 

have declined to extend Bivens to a claim sounding in the 

First Amendment. Petitioners do not press this argument, 

however, so we assume, without deciding, that respondent’s 
38

In order to establish a First Amendment retaliation 

claim, a plaintiff “must prove (1) that he engaged in 

constitutionally-protected activity; (2) that the government 

responded with retaliation; and (3) that the protected activity 

caused the retaliation.” Eichenlaub v. Township of Indiana, 

 

First Amendment claim is actionable under Bivens.”). 

Nonetheless, despite the cautionary notes sounded by the 

Court, it does appear that the Court has held that there is a 

Bivens cause of action for First Amendment retaliation 

claims. In Hartman v. Moore, 547 U.S. 250 (2006), the Court 

wrote:

Official reprisal for protected 

speech offends the Constitution 

because it threatens to inhibit 

exercise of the protected right, 

and the law is settled that as a 

general matter the First 

Amendment prohibits government 

officials from subjecting an 

individual to retaliatory actions. . . 

for speaking out. Some official 

actions adverse to such a speaker 

might well be unexceptionable if 

taken on other grounds, but when 

nonretaliatory grounds are in fact 

insufficient to provoke the 

adverse consequences, we have 

held that retaliation is subject to 

recovery as the but-for cause of 

official action offending the 

Constitution. When the vengeful 

officer is federal, he is subject to 

an action for damages under the 

authority of Bivens.

Id. at 256 (citations, internal quotation marks and brackets 

omitted). Thus, we will proceed on the assumption that there 

is a Bivens cause of action for First Amendment retaliation 

claims. 
39

385 F.3d 274, 282 (3d Cir. 2004) (citations omitted). “The 

threshold requirement is that the plaintiff identify the 

protected activity that allegedly spurred the retaliation.” Id. 

It is beyond dispute that the First Amendment protects 

George’s right to possess, read and study the flashcards and 

the book he was carrying. Indeed, the individual Federal 

Officials25 readily concede that an airplane passenger may 

read whatever he or she pleases. However, the fact that 

George had a First Amendment right to possess, read and 

study the materials he possessed does not end the inquiry. 

The fact that George clearly had a right to have these 

flash cards, does not mean that TSA Officials had to ignore 

their content or refrain from investigating him further because 

of the words they contained. The totality of circumstances 

here could cause a reasonable person to believe that the items 

George was carrying raised the possibility that he might pose

a threat to airline security. That suspicion was the reason for 

their increased level of scrutiny during the airport screening. 

The TSA Officials’ suspicion was an obvious 

alternative explanation for their conduct, which negates any 

inference of retaliation. See American Dental Ass’n v. Cigna 

Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (“Importantly, 

the Court held in Iqbal, as it had in Twombly, that courts may 

infer from the factual allegations in the complaint ‘obvious 

alternative explanation[s]’, which suggest lawful conduct 

rather than the unlawful conduct the plaintiff would ask the 

court to infer.”) (citing Iqbal, 556 U. S. at 682).26

 

25 The “individual Federal Officials” are the three TSA 

Screening Officers and the two FBI Agents assigned to the 

JTTF. 

26 Although it is too obvious to require citation, we 

nevertheless stress that the First Amendment will not tolerate 

singling someone out for enhanced scrutiny because s/he is 

carrying materials critical of the United States or its foreign 

policy. Indeed, it is fair to say that periodicals as diverse as 

The Wall Street Journal and The Washington Post will 

frequently contain articles critical of the United States and/or 

its foreign policy during any given administration and at any 

given moment in time. However, this incident survives 
40

Moreover, because we have found that the individual 

Federal Officials’ search and questioning of George during 

the screening did not violate George’s Fourth Amendment 

rights, we are hard-pressed to find that it could result in a 

First Amendment retaliation claim on this record. See 

Hartman v. George, 547 U.S. 250 (2006).27

Accordingly, the individual Federal Officials are 

entitled to qualified immunity on George’s First Amendment 

retaliation claim.

VI. CONCLUSION

For the foregoing reasons, we hold that the Federal 

Officials are entitled to qualified immunity on George’s 

Fourth and First Amendment claims. Accordingly, we will 

vacate the order of the district court denying their motion to 

dismiss and remand with instructions to grant the motion.

 

scrutiny under both the First and Fourth Amendment because 

of the flash-cards George was carrying. As we have 

explained, the Federal Officials acted reasonably in briefly 

detaining George for further investigation because of 

concerns that were raised by those flash-cards.

27 In Hartman, the Court held that a plaintiff cannot state a 

claim for retaliatory prosecution in violation of the First

Amendment if the charges were supported by probable cause.