One Step from the Supreme Court
by Jeannine Sherman
Friday, August 19, 2022
Impact litigation is one of MLFA’s major strategies. In addition to trying to win each individual case, we work for long-term change, attempting to affect the underlying laws and policies.
Our MLFA-funded Constitutional Law Center for Muslims in America (CLCMA) has been recognized and referenced by the legal community for our experience and expertise on Watchlist-related cases.
There are two important cases that may lead us to the Supreme Court:
Mr. Elsharkawi was on his way to Hajj. He suffered hours of extensive searches and detention at the Los Angeles airport. They pressured him for the password on his phone. He was handcuffed for hours in the basement of the airport. No one told him why.
In October 2018, CLCMA filed a lawsuit on his behalf, alleging tort claims against the government, including violations of the First and Fourth Amendments to the U.S. Constitution.
In November 2019, after the court denied portions of the government’s motion to dismiss, the government agreed to pay Mr. Elsharkawi $20,000 in damages for his tort claims of false imprisonment, battery, negligence, and intentional infliction of emotional distress.
The court dismissed the claims brought under the First and Fourth Amendments for lack of due process and improper searches and seizures, and CLCMA appealed in December 2019. On appeal, the Ninth Circuit ruled in December 2020 that the government needed to provide more information than it had about the searches it ran on Mr. Elsharkawi’s electronics. The district court then dismissed the action again in September 2021, ruling that Mr. Elsharkawi had not shown a sufficient risk of future harm because, due to Covid-19 and travel restrictions, he had not identified a specific date on which he intended to travel again in the future. CLCMA appealed this ruling and filed our briefs. We are scheduled to argue in person before the Ninth Circuit on September 20, 2022.
The Jibril Family
Mr. Jibril, his wife, and their five children are U.S. citizens. In 2018, the Jibril family was traveling from the United States to Jordan to visit family when they were stopped by airport security. Their boarding passes all had a code related to “Terror Watchlists”. They all endured more than two hours of searching and questioning, including their 2-year-old child!
This happened multiple times on their trip. The children were separated from their parents and questioned, and the family’s electronic devices were searched.
The Jibrils wanted to understand why this had happened to them. They asked if they were on a watchlist. That’s where it gets weird. If you’re on the No-Fly list, you’ll know because they’ll tell you when you try to board the plane. But the Terror Watchlist is like something from a dystopian novel – you can ask, but they won’t tell.
Our MLFA-funded Constitutional Law Center for Muslims in America (CLCMA) stood up in court on behalf of the Jibril family. They filed a lawsuit claiming Fourth and Fifth Amendment violations. The government argued that the Jibrils didn’t have the right to sue because the family didn’t know if they were on the Watchlist. What? They didn’t know because they weren’t allowed to know.
We appealed. Government counsel told the court that if the Jibrils wanted to know if they were on the watchlist, they should try to travel again and see what happens. This time, the Court recognized that this was a ridiculous thing to say. “Whether this suggestion was meant to be a tongue-in-cheek quip or simply a heartless argument, it makes no sense.”
Three Appellate Court judges recognized this absurdity, which is a big win. Another achievement is that the case set a precedent for objecting to what happens to you at the airport. The Jibrils’ case confirms that we have the right to challenge unconstitutional policies.
So, what’s next?
Our Civil Litigation Department Head, Christina Jump, has led CLCMA’s legal team through sustained efforts across multiple cases, pushing to get reasons for the unfair and unjustified consequences of Watchlisting policies on Muslim lives.
We may have a chance at reaching the Supreme Court with this issue, depending on how the Ninth Circuit Court rules on the Elsharkawi case. If there is a split at this level, we’re likely to have a chance at reaching the highest level of legal authority.
This is exactly why CLCMA was created, to have this kind of impact on laws and policies. If we’re able to bring the Watchlisting policies to the level of the Supreme Court, this would bring the focus of the entire country to the injustices suffered by our clients. It’s time for a foundational change in the way Muslim citizens are treated.