An attorney representing the four Clayton County law enforcement officers being sued for alleged racial profiling at Hartsfield-Jackson Atlanta International Airport has filed a motion to dismiss the lawsuit, claiming qualified immunity.
The officers are being sued by stand-up comedians Eric Andre and Clayton English, who were, on separate occasions, stopped and questioned while trying to board a flight from Atlanta to Los Angeles.
Andre and English were stopped as part of the jet bridge interdiction program organized by Clayton County law enforcement in an attempt to find illegal drugs being transported through the airport. Under this program, Clayton County Police officers and Clayton County District Attorney’s Office investigators, in plainclothes wearing a badge, would stop passengers on their way to board their plane to ask questions and sometimes search their belongings.
English and Andre’s initial suit was filed on Oct. 11, 2022, in the U.S. District Court for the Northern District of Georgia.
This month, attorneys representing Andre and English entered new evidence in the case. Two more instances where a Black man was stopped, questioned, and searched in the jet bridge while trying to board a flight at the Atlanta airport are being used as evidence that Black people were repeatedly targeted for searches.
The three police officers and one DA office investigator named in the lawsuit argue that they did not knowingly violate Andre’s and English’s constitutional rights and therefore cannot be held responsible.
“Qualified immunity is a defense that government officials can raise when they’re sued for money damages in their individual capacity,” said Fred Smith Jr., a constitutional law professor at Emory University.
Earlier this month, in response to the murder of Tyre Nichols at the hands of Memphis, Tennessee, police, Georgia state Reps. Sandra Scott, Viola Davis, Kim Schofield, and El-Mahdi Holly introduced the Police Accountability Act, legislation that would eliminate the qualified immunity defense.
Qualified immunity was first introduced in the 1967 U.S. Supreme Court case Pierson v. Ray. Critics of qualified immunity say that is a barrier to police accountability, while its supporters say it is meant to shield police officers from frivolous lawsuits.
We spoke with Smith about the airport lawsuit, qualified immunity, how it works, and what it could mean for this case.
What happened with English and Andre
English was stopped in the jet bridge in October 2020 by two officers who asked if he was carrying illegal drugs and his reason for traveling to Los Angeles. An officer then told English he wanted to search his bag.
“Believing he had no choice, Mr. English acquiesced,” the lawsuit states.
After searching through English’s luggage, he was allowed to board his flight.
Six months later, Andre was boarding a Delta Air Lines flight to Los Angeles from Hartsfield-Jackson when he was also stopped in the jet bridge by law enforcement officers.
Similar to English’s experience, the officers immediately began asking Andre if he was carrying illegal drugs, specifically cocaine, methamphetamine, or any narcotics not prescribed to him by a doctor.
Andre was asked to hand over his identification and boarding pass while the officers continued to question him. After law enforcement questioned Andre about his luggage, travel plans, and reason for flying, he was allowed to board his flight.
Attorneys for English and Andre found two more incidents involving alleged racial profiling by Clayton Police through the interdiction program.
In August 2017, Preston Lewis was traveling from Pensacola, Florida, to San Francisco with a layover at Hartsfield-Jackson. While attempting to board his connecting flight, two officers approached Lewis from the jet bridge and asked him to move behind the gate agent’s desk.
Once behind the desk, they began to question Lewis about carrying drugs and began to search his bag. Lewis was carrying $14,000 in cash from a recent insurance settlement after a neighbor crashed their car into his truck.
When the officers discovered the money, they drove Lewis to another part of the airport, where he offered to show the officers receipts from the insurance settlement to prove he had a legitimate reason to be carrying the large amount of cash. Officers declined to view the receipts and instead seized the $14,000 from Lewis before returning his ticket.
Lewis eventually had to challenge the seizure in court. The state of Georgia dismissed the case against Lewis and returned the money. He was not, however, reimbursed for the thousands of dollars he paid in attorney fees to get his money back.
In April 2019, Jean Elie, an actor and producer on the HBO series “Insecure,” was stopped while boarding a flight to Los Angeles by two of the officers — Tony Griffin and Michael Hooks — named in the Andre and English case.
The officers stepped in front of Elie, blocking his path, and told him they needed to search his bags. The officers began to interrogate Elie about his reason for traveling as they looked through his carry-on bags.
Neither Elie nor Lewis was arrested or charged with a crime following their search. While the two have not been added to the Andre and English lawsuit as plaintiffs, their experiences are being used as evidence of ongoing racial bias that Black passengers face at the Atlanta airport.
Countering the qualified immunity defense
Attorneys for Andre and English will have to show that the officers would have reasonably known at the time of the incident that they were violating their clients’ rights.
In the context of this lawsuit, English and Andre are saying their Fourth and 14th Amendment rights were violated.
The Fourth Amendment protects people from unreasonable searches and seizures of their property by the government. The 14th Amendment provides all U.S. citizens with equal protection under the law.
“Qualified immunity can be a particularly difficult barrier to overcome in the context of Fourth Amendment violations, and the reason for that is that it’s a reasonable standard,” Smith said.
What this means is that the attorneys will have to prove officers acted unreasonably when choosing to make the stop. Finding other examples to make their case can be challenging because of the legal precedents already set, he said.
Proving racial profiling
According to Andre and English, their constitutional rights were violated because they were stopped and questioned based on their race.
“Fourth Amendment law is a space where Black individuals disproportionately experience violations, Black individuals are disproportionately stopped,” said Smith.
The fact that Black people are more likely to be stopped, however, is not enough to determine that Andre’s and English’s interactions were the result of officers being unreasonable. The men allege, however, that in the six-month period between their incidents, 56% of all people stopped in the Atlanta airport by Clayton County law enforcement were Black. On average, 8% of airline passengers in the U.S. are Black.
“The probability that the racial disparity reflected in the jet bridge interdiction program’s stop data was caused by random chance is less than the chance of being struck by a meteorite,” lawyers for Andre and English wrote in the complaint.
To prove a 14th Amendment violation, attorneys have to show more than negligence or recklessness by the officers that disproportionately affected Black people. The legal team for Andre and English will have to prove that either the officers purposefully stopped them because they were Black, or that a higher-up official directed them to stop Black people.
Past Supreme Court decisions set the precedent that the judge deciding this case will follow.
In 1991, the Supreme Court held in Florida v. Bostick that law enforcement may question and ask for consent to search the luggage of any individual, even when they have no reason to suspect them — as long as they do not coerce them into cooperation.
“The Supreme Court doctrine here has set up a very high bar for these types of claims,” Smith said.
Qualified immunity in Georgia
The most recent local example of law enforcement officers using qualified immunity was nearly two years ago. In 2021, Capt. David Cody of the Henry County Sheriff’s Office was granted qualified immunity after being sued by Onree Norris.
Norris, a 78-year-old McDonough resident, was arrested when the Henry County Sheriff’s Office Special Response Team and the Flint Circuit Drug Task Force broke down his door and set off flash-bang grenades after obtaining a no-knock warrant.
The officers’ warrant was actually for a suspect who lived in the house next door.
Norris initially sued all the officers involved in the raid. The officers claimed and were granted qualified immunity. Norris ended up appealing only the qualified immunity defense for Cody because he was the supervising officer.
The 11th U.S. Circuit Court of Appeals unanimously denied Norris’ appeal, saying that he did not provide good cause or show a legal precedent that contradicts the lower court ruling.
The U.S. District Court for the Northern District of Georgia will rule on whether the officers can claim the qualified immunity defense. If the officers are granted qualified immunity, the case will be dismissed, but Andre and English still have the opportunity to appeal to the next highest federal court, the 11th Circuit Court of Appeals.
Smith notes that if the officers in this case are denied qualified immunity, they can immediately appeal the decision to the 11th Circuit as well.
“I would say that the 11th Circuit Court of Appeals record is mixed on qualified immunity,” Smith said, adding that, historically, the 11th Circuit has granted qualified immunity at higher rates than other appeals courts.
Lawyers for Andre and English expect the court to take anywhere from three to six months to make a ruling on the defendants’ motion to dismiss.
This story has been updated.