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

I NDIVIDUAL CAPACITY; JOHN DO E 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 Division2 Department of Justice 950 Pennsy lvania 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 CATH ERINE ROPER, ESQ.
American Civil Liberties Union Foundation

o f 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 a rises from a suit against five Federal
Officials , three of whom w ere employed by the Transportation Security Administration (“TSA”) 1 , and two of whom were employed by the Federal Bureau of Investigation
and who w ere 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 i n 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. 3 For 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, Pennsylva nia , 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 criti cal of
American interventionism

.

W he n he arrived at the Airport, George presented his boarding pass and showed TSA O fficials valid identification.
He was then asked about the contents of his carry

- on ba g, and he told a TSA screening O fficial that it contained tw o stereo speakers. He was asked to rem ove the m so that they could be separately screened by x

- ray. After George walked through
the screening de vice

, a TSA Official to ld him to enter a glass

enclosed area for additional screening. George did so and
another TSA O fficial (“ John Doe 1 ”) told him to empty his

3 Pursuant to a stipulated protective order entered in the district court, the t hree 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 litigat ion, 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

- Engl ish flashcards.

Georg e 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 d iscussions in contemporary
M iddle Eastern media. T he flashcards included every day words and phrases such as “day before yesterday,” “fat,” “thin,” “really,” “nice,” “sad,” “cheap,” “summer,” “pink,”

an d “friendly.” However, they also contained such word s as: “bomb,” “terrorist,” “explosion,” “attack,” “battle,” “kill,” “to target,” “to kidnap,” and “to wound.”

George had a double major in Phy sics and Mi ddle
Eastern Studies and had traveled to Jordan to study Arabic as part of a study abroad program or ganized 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 a nd Sudan . He travel led
there as a tourist and to practice his Ara bic

. 6

After seeing t he flashcards, John Doe 1 took George to
another scr eening 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 teleph oned 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 a dditional 15 minutes. Wh en 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 Georg e was questioned about his travels by the TSA Officials.5 9/11?

George: Osama bin Laden.

J ane 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

, “Rogu e Nation: American Unilateralism and the
Failure of Good Intentions. ” The book was critical of United
States foreign policy. However, in respon ding 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 t o regard him as
a threat.

As Jane Doe 3 was in mid

- sentence questioning George, William Rehiel, a Philade lphia Police Officer, arrived at the airport screening area. Rehiel immediately
handcuffed George and led him through the T erminal and
down a set o f 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 f urther questioning by two FBI J oint Terrorism Task Force (“JTTF”)
O fficials

, “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 bei ng held. Rather, the Philadelphia
Police called the JTTF Officials for them to evaluate whether
he was a threat.

When the JTTF O ffi ci als finally arrived, they searched his carry

- on belongings, and then esc orted him out of his cell to a room where they interrogated him for 30 minute s. T he y6 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 t ravels who was overtly against the U.S.
government.

After about 30 mi nutes of questioning, the JTTF
O fficials told George that the Philadelphia Police call ed them

t o 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 JTT F Officials allowed him to go, and he was not advised of his rights, allowed to make a phone call or conta ct an attorney before
then

.

The following day, George returned to the a irport and boarded a flight that too k 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 O fficials

. 7

, 8 The a men ded

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 caus ed 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 Phil adelphia Police officers, Rehiel and Edward Richards, who George alleges was the duty sergeant for at7 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 Arabic

language flashcards and t he content of a book he was carrying , in violation of his First Amendment rights.

As we noted at the outset, t he 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 establ ished at the time of his
detention to d eprive them of that defense.

T he 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. C orp. 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 uno pposed motion for clarification in which they asked the district court to confirm its intent to reject t heir 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 plainti ff’s First and Fo urth 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 TS A’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 plain tiff.

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.
A ccordingly, 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 pl ausibly sets forth a First9 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

m ust 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 th e 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
flashc ards 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’s10 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 a lso explained that t he individual Federal
O fficials ’ 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 A ND STANDARD

OF REVIEW.

Before addressing the merits, we must first determine
whether w e 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 t he individual Federal
O fficials ’ Rule 12(b)(6) motions to dismiss, “because the amended complaint alleges claims for relief that are ‘plausi ble on [their] face.’” Apparently unsure about whether
the district court was rejecting the defendant’s assertion of qual ified im munity, the individual Federal O fficials filed an unopposed motion for clarification.

In response to the motion, the dist rict 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

9 We t reated this as an Amended Notice of Appeal.

10 Th e 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 tha t Order, the Clerk referred the jurisdictional issue to this merits panel.11 Fourth Amendment rights.” The court also concluded t hat the individual federal defendants’ assertion of quali fied immunity

“ may be c larified by discovery.”

After a review of the parties’ initial submissions and their briefs, it is clear that we have jurisdiction over this appeal.

“Ordi narily 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 b ased on qualified immunity is appealable under the collateral order doctrine.

H ere, however, the district court did no t specifically

enga ge in the traditional qualified immunity anal ysis before denying the individual f ederal defendants’ motions to dismiss. Rather, as noted, in its order addressing the
individual federal defendants’ motion for cla rification, it simply said the “defense of q ualified immunity in this case may be clarified by discovery.” However , in that same order
the district court held that the amended complaint st ate d a valid claim against each f ederal defendant for violation of the First and Fourth Amendments. Thus, beca use the district court held that the amended complaint sufficiently pled valid
constitutional claims against the individual f ederal defendants, the practical effect of the district court’s order

wa s a denial of the defense of qualified immunity. According ly, 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 alle gations; it thus possesses the requisite finality for immediate appealability12 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, di scovery should not be
allowed.

X

- Men Security, Inc. v. Pataki , 196 F.3d 56, 66 (2 d Cir. 1999) (citations, internal quotatio n 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.” Seig ert 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 im munity 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 i nvolves 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).

I V. THE QUALIFIED IMMUNITY DOCTRINE.

Qualified immunity shields government officials from personal liability for civil damages “insofar as their conduct
does n ot 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 p ersonal 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 t hat any reasonable office r 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 pro tections 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
mi sconduct,” 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 ove rcome the defense of

q ualified 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

- K idd , 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 O fficials make a number of arguments in support of their appeal. Eac h is discussed

se parately below.14 A. George’s factual allegations do not establish that any

individual
Federal O fficial violated his clearly established rights

under the Fourth Amendment.

B efore addres sing the merits of this argument , i t is first

necessary to consider airport security scr eening s in context
with the F ourth 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 Stat es 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, Hart well arrived at the Philadelphia International Airport intending to catch a flight
to Phoen ix, 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 s et off the magnetometer when he walked throu gh it . A TSA O fficer took Hartwell aside after he passed through the metal de tector a second time. The TSA O fficer 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 O fficer asked t o see it. Ultimately, the TSA O fficers
discovered th at 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. Marque z , 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 Ame ndment “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 charact eristics.” 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

su pported by a warrant, unless they fall into one of the exceptions to that requirement.” Id . (citation omitted). T he “first step in Fourth Amendment analysis is [identifying] whether a search or seizure has taken place.” Id

. However, the government conc eded that “an air port 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 w arrant.” Id . a t 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 adm inistrative 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 w e 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 pa ssengers are

12 In Hartwell , we noted that the Supreme Court has not directly addressed th e 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

per sonal 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 x

rayed, 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

sear ches. 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.
U nlike searches conducted on dark and lonely streets at night
where often the officer and the subject are the only witnesses,
these searches are made under18 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 conclud ed:
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 i nterest 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 constituti onally 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 t he 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, do es 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
penetra te 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 scre ening 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 and20 procedures, that election occurs when a pro spective 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 backgroun d as our analytical compass

, we examine the merits of the individual Fede ral O fficials’ 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.

T he TSA Officials

– John Does 1 and 2

, and Jane Doe
3

– submit that Georg e’s factual allegations do not establish that they violated a Fourth Amendment right. We agree.

George alle ges that the two TSA screening O fficials, 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, th e 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 Phil adelphia Police Officer, William Rehiel, arriv ed at the scene, handcuffed George and took him to the Airport Police Station. Amended Compl. ¶¶ 42

- 45.

I n his Memorandum in Opposition to the United States’ Motion to dismiss, 13 George conce ded that the se arch

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 O fficials 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, i n 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 co ntact their supervisor (Jane Doe 3), violated h is Fourth Amendment rights

.

T h e 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 posses s nothing that would endanger
airline safet y.” 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 c ause of a speci fic 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

a n 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 lim ited search pursuant to a brief investigative detention, and in Orsatti , we recited the general standards governing an arrest. Although n either case is definitive in the

context of the Fourth Amendment parameters within which
TSA officials can detain, sea rch and question passengers at an airport security checkpoint, we did examine th os e limitations
in United States v. Hartwell

, supra

.

However, as also noted, those claims are not before us in this appeal.22 As disc ussed 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 a n administrative search. I n 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 check ed in at the ticket counter but did not pr oduce 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 pro cedures, 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 p roduce the item and tried to leave

. When a TSA supervisor tol d Aukai to empty his pocket, he again refuse d. 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 place d it in the tray in front
of him. Fearing that the item may be a weapon, t he TSA23 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 knowing ly and intentionally possessing , with intent to dis tribute, 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 airpor t 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 appe als 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 constitutiona lly reasonable administrative
search.” Id . at 963.

W e believe that the conduct of the TSA O fficia ls here

was also consistent with Fourth Amendment limitations . I t is

not disputed t hat the initial airport screening to which George was subjected by the TSA O fficials 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 O fficials 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 John24 Does 1 and 2 to another screen ing area where he was eventually questioned by Jane Doe 3. However, at that point, the Officials had a just ifiable suspicion that permitted further investigation as long as the brief detention required to conduct that investigation was reasonable. See Ter ry , 392
U.S. at 21. 14

We caution, however, that the detention at the hand s 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

t hat justified his detention dissipated. However, it did not totally vanish or suggest that further inquiry was not warranted. S uspicion 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.

Nevertheles s, it is important to note that harboring views that appear to be hostile to th e United States government or its foreign policy is most assuredly not, by itself, grounds for detaining someone and investigating them
pursuant to the adminis trative search doctrine or an investigative seizure under Terry

. However, it is simply not

reaso nable 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 t ake 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 t hat 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 mid

sentence 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 th e i nitial 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 O fficials 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, w e think that the se TSA O fficials would
have been derelict in their duti es 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 wor ds 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 TS A 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
unde r 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 s creening area during the interrogation, Amended Compl. ¶ 41, does not
establish that TSA Officials violated the Fourth Amendmen t. 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 wa s 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 hav e in a
different context.

We therefore do not agree with George’s contention
that once John Doe 1 and John D oe 2 completed their
admin istrative search for weapons and explosives ( within t en to fifteen minutes, Amended Compl. ¶¶ 27

- 28 )

, without finding w eapons 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

e xplosives on George’s p erson or luggage. Items other than weapons or explosives can give a TSA Screening Official

reason to increase the level of scrutiny when circumstances27 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 happen ed here. 17

Given the circumstances here, it was reaso nable for the
TSA S creening 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

passenger s 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 establishe d at the time of the challenged conduct. See Scott v. Harris , 550 U.S. 372, 377 (2007).

Accordingly, the TSA Screening Officials are e ntitled to qualified immunity on G eorge’s Fourth Amendment claim,
and we will vacate the district court’s order den ying their
motion to dismiss and remand with directions t o grant the
motion.

(b). FBI Agents assigned to the JTTF

– John Does 4 and 5.

T he two FBI A gents assigned to the JTTF also argue that the factual allegations in the amended complaint do not
establ ish that they viol ated 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

reques t 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 re iterate that that is not what happened here.28 George, searched George’s c arry

- on luggage, and questioned
him for about thirty minutes before concluding that he was not a security threat and allowing him to lea ve. Amended
Com pl. ¶¶ 63

- 73. T he di strict court did not explain how or why these allegations stated a violation of th e Fourth
Amendment.

W e are unable to find any authority that w ould support a finding that F ederal O fficials ’ response to a call for assistance by local police and the ir subsequent questioning of the subject of that call for 30 minutes constitutes a Fo urth
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 qua lified immunity and w e will therefore vacate the district court’s order denying their motion to dismiss and remand with
direction s to grant the motion to dismiss.

As we have noted, George also asserted a First
Amendment claim against the individual Federal O fficials. However, b e fore beginning a discussion of that claim, it is necessary to discuss the basis for Geor ge’s contention that the
Federal O fficials violated the Fo urth 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 instructi ng the local

p olice to prolong his seizure,” and that his “seizure escalated
from a n 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

a pparently contending that the individual Federal O fficials 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
O fficials had either legal or functional control over the29 decisions and actions of the Philadelphia Police Officers. 18

The contention is meritless.

The only allegations in George’s amended complaint
to support t his rather attenuated agency theory that the Philadelphi a Police Officers were under the legal or
functional control of the TSA Scr eening Officials are as
follows:

 John Doe 1 and John Doe 2 were

Transportation S ecurity Officers
of the [TSA]

– commonly known as “airport screeners”

– at the time of the events giv ing 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 fu rther 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 supervis ing 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 interrogat ed

. . . . Amended Compl

. ¶ 6.

The amended complaint further alleges that while George was being que stioned by Doe 3, Officer Rehiel,
arrived on the scene, handcuffed George and took him to the
A irport Police S tation without speaking to any of the Federal
Officials . Amended Compl. ¶¶ 42

- 45. Finally, the ame nded complaint alleges that George’s “detention, arrest, unnecessary and extended restraint, incarceration, and interrogation . . . by the Defendants, as described in [the preceding paragraphs], const ituted 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 d enial 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 th e elem ents 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 (ci ting 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 Office rs 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 interroga tion, detention and arrest,” and that Doe 3 “turned him over to [Police Officer Rehiel] to be handcuffed, arrested, jailed and f

urthe r interrogated.” George attempts to further weave a tapestry of inferences culminating in a conclusion of agency by conte nding that an arrest is the inevitable result of summoning Police and turning someone over to the m.31 George c ites 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 Ric hmond, 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 pre

screening official. Tobey also placed his belt, shoes,

swe atshirt and other carry

- on items on the conveyor belt.

H owever, 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 t o 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 T SA’s advanced screening procedures violated the Fourth Amendment.

Thereupon, Smith radioed for assistance . Smith’s supervisor , Jones, t old Smith to order Tobey to remain in
front of the AIT unit. Jones and an unknown TSA Official
then asked the Richm ond 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

oc curred 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 a nd threatened him with various criminal sanctions. Tobey was eventually charged with the state crime of disorderly conduct in a public place. The p olice o fficers later released Tobey after consulting with an Air Marshal from the Federal Air
Marsh al’s Join t 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 § 198 3 action against the RIA Polic e Officers alleging violations of his Fourth and Fou rteenth Amendment rights, his First and Fourteenth Amendment s rights

, and his right to Equal P rotection of the law under the
Fourteenth A mendment

. T he reafter, Smith and Jone s, the TSA Officials, moved to dismiss all of the claims, asserting qualified immunity. T he district court granted the TSA
Officials’ motion to dismiss the Fourth Amendment and Equal Protection claims. H owever , it did not dismiss Tobey’s First Amendmen t retaliation claim against th ose official s. The Court of Appeals for the Fourth Circuit explained the district court’s reasoning as follows :

The court held th at 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 (c itation, 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 violat i on of a clearly established constitutional right a nd so they were entitled to qual ified 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 Amen dment violation , it
had to “correct an erroneous co nclusion 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 om itted) (brackets ad ded ). 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 om itted) (brackets
added ). 20

Correcting what it believed to have been error, t he majority stated: “[f]ortunately for Mr. Tobey, he was not required to state these p recise 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 t hat 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_007051 1.pdf (omitting security screening screeners from categories of TSA employees authorized to make arrests).34 to the police that the pers on 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 fact ored 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.” T hat conclusion does not appe ar 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 d iscretion 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.
Cit y 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 pers onal liability if they arrest someone without probable cause. See 42 U.S.C. § 1983; s ee 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 po lice officers would
know that it is a violation of well

- settled constitutional rights35 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 constitutiona lly
sacrosanct demarcation betwe en the intrusion that is inherent
in a n 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
al lowing 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, w e reject George’s argument that the Ph iladelphia 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 crim inal charges and detained by Federal officials. He claimed that he was deprived of a number of constitutional protec tions while in Federal custody and sued a number of Federal officials, including the Attorney General and the Director of the FB1.
The Att orney General and the Director of the FBI were the only Federal officials before the Court.

In his complain t, Iqbal alleged

, inter alia

, that the Attorney General and the Director of the FBI “ ‘ knew of, condoned, and willfully and maliciously agreed t o 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 penologica l interest,’” that “Ashcroft was the ‘principal architect’ of this invidious polic y,” 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 immun ity. The district court denied the motion and36 the Court of Appeals for the Second Circuit affirmed. The Supreme Court granted certiorari a nd 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 Ge orge’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 O fficers. 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 c laim that allegations about the two JTTF Agents show that the y participated in his alleged ly unlawful seizure, arrest and detention

. Those allegations are summarized above. 22 The JTTF Agents simply responded to a call from the Philadelphia Police, questio ned 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 Agent s 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
determ ine 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 F ederal official violated his clearly established rights under the First Amendment.

As noted, in his amended complaint , George alleged
that the Federal O fficials searched and questioned him in retaliation for his possession of the Arabic

- English flashcard s 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 cou rt, in response to the Federal O fficials

m otion for clarification, held that the amended complaint plausibly set forth a First Amendment retaliation claim.

In this portio n of their appeal, the Federal O fficials
contend that the allegations in the amended complaint do not

e stablish that they retaliated against George for his exercise of
his First Amendment ri ghts. 24

23 George’s amended complaint also alleges that the Federal
Officials arrested and incarcerated him i n 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
Reich le 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 re luctant 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 decidi ng, that respondent’s38 In order to establish a Fi rst 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 ret aliation.” 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
Amendm ent 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 un der 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 th at t he First Amendment protects George’s right to possess

, read and study the flashcards and
the book he was carrying. I ndeed, the individual Federal
O fficials 25 readily concede that an airplane passenger may read whatever he or she pleases. However, the fact that George had a First A mendment 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 conte nt 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 airlin e security. That suspicion was the reason for
their increas ed level of scrutiny during the airport screening.

The TSA O fficials’ suspicion was an obvious alternative explanation for their conduct

, which negates any inference of retaliation

. See Americ an 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 lawfu l 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 Offic ials” 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
i ts foreign policy during any given administration and at any given moment in time. However, this incident survives40 Moreover, because we have found that the individual
Federal O fficials’ search and questioning of George during the screening did n ot violate Ge orge’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 O fficials are
entitled to qualified immunity on George’s First Amendment
retaliation claim.

VI. CONCLUSION

For the foregoing reasons, we hold that the Federal
O fficials are entitled to qualified immunity on George’s Fourth and First Amendment claims. Accordingly, we will

vac ate the order of the district court denying their motion to
dismiss and remand with i nstructions 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 Offic ials 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.