No. 00-1234
In the Supreme Court of
the United States
JOHN ASHCROFT, ATTORNEY GENERAL OF THE
UNITED STATES,
Petitioner.
v.
SAMIR ABU ASSAD
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
RESPONDENTS’ BRIEF ON MERITS
_________
ADELA ESTOPINAN
1836 S.W. Widget Street
Miami, Florida 33133
(305) 906-1200
Counsel of Record
i.
QUESTION PRESENTED
An FBI Directive, distributed after September 11, 2001, permits FBI agents to search and/or seize
persons who appear to be of Middle Eastern origin, and who are behaving in a suspicious or
potentially threatening manner. The following questions are presented:
1.
Does an FBI agent who conducts a search and/or seizure pursuant to this directive,
and solely on the basis of ethnicity, violate the petitioner’s Fourth Amendment
rights?
2.
Does the search and seizure described herein violate the Equal Protection Clause of
the Fourteenth Amendment?
3.
Can the government’s compelling interest in the safety of its citizens during national
emergencies alter these rights?
ii.
PARTIES TO THE PROCEEDING
The petitioner in this case is John Ashcroft, Attorney General of the United States. The
respondent is Samir Abu Assad.
iii.
TABLE OF CONTENTS
Page
QUESTION PRESENTED.........................................................i
PARTIES TO THE PROCEEDING...........................................ii
TABLE OF CONTENTS........................................................…iii
TABLE OF AUTHORITIES.................................................….iv
Respondent’s Brief
ON MERITS ……………………………….……………….…1
STATEMENT AND ARGUMENT……………………………2
SUMMARY……………………………………………………6
CONCLUSION................................................................…....…8
TABLE OF AUTHORITIES/CASES
Page(s)
Illinois v. Wardlow
383 U.S. 413 (2000).................................................
5
Korematsu v. United States,
323 U.S. 214 (1944).................................................
2
Hunter v. Erickson,
390 U.S. 629 (1969).................................................
6
In Re Griffiths,
413 U.S. 15 (1976)...........................................…….
6
Schenck v. United States
323 U.S. 1519 (1919).................................................
3
Bolling v. Sharpe
347 U.S. 497 (1954) ………………………………..
4
Terry v. Ohio
392 U.S. 1…………………………………………….
5,6
Strauder v. West Virginia
100 U.S. 303; 1880 ……………………………..
2
Yick Wo v. Hopkins
118 U.S. 356; 1886 …………………………………
2
STATUTES AND CONSTITUTIONAL REFERENCES
Combating Terrorism Act (2001)
47 U.S.C. Title III § 231.................................................
Foreign Surveillance Act (FISA) (1978)
47 U.S.C. § 230......................................................……
Civil Rights Act (1957)
55 U.S.C. § 223................................................……….
Civil Rights Act (1960)
55 U.S.C. § 224................................................………..
Civil Rights Act (1964)
55 U.S.C. § 234................................................………..
6
6
4
4
4
Fourth Amendment to the United States Constitution….
3,4,5
Fourteenth Amendment to the United States Constitution..
3,4
Article V, U.S. Constitution………………………………
4
2.
STATEMENT OF ARGUMENTS
1. Race as a suspect classification triggering the “most rigid scrutiny” was first addressed
in the Korematsu case. Although as Strauder v. West Virginia (100 U.S. 303; 1880) and
Yick Wo v. Hopkins (118 U.S. 356; 1886) illustrate, the Court has long perceived special
bite in the equal protection clause when it is invoked as a weapon against racial and/or
ethnic discrimination, explicit reference to race as a “suspect” criterion did not come until
well into the 20th century in Korematsu v. United States (323 U.S. 241; 1944). Ironically,
Korematsu is one of the very rare cases in which a classification based on race or
ancestry survived Court scrutiny. Early in his majority opinion Justice BLACK stated the
governing standard: “All legal restrictions which curtail the civil rights of a single racial
group are immediately suspect. That is not to say that all such restrictions are
unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.
Pressing public necessity may sometimes justify the existence of such restrictions: racial
antagonism never can.” Attention is necessarily drawn to the words “pressing public
necessity.”
Justice MURPHY wrote the strongest dissent—even though he did not invoke the
“suspect classification/strict scrutiny “ test, he did apply the less demanding
reasonableness standard. He acknowledged that great respect for military judgment in
wartime is “appropriate.” But the “military claim must subject itself to the judicial
process of having its reasonableness determined.” He was not persuaded that the
3.
deprivation of individual rights here was “reasonably related to public danger ‘so
immediate, imminent, and impending’ as not to admit delay and not to permit the
intervention of ordinary constitutional process to alleviate the danger.”
In the case before this Court, the standard of reasonableness has not been met.
Therefore, the higher standard of strict scrutiny required by this Court in cases dealing
with immutable characteristics such as race, ethnicity and gender, cannot be satisfied.
2.The Court’s first significant encounter with the problem of articulating the scope of
constitutionally protected rights came in a series of cases involving freedom of
expression and agitation during World War I. The “clear and present danger” language
stems from the first of these cases, Schenck v. United States. This case was a test of the
Espionage Act of 1917, a precursor to the various terrorism statutes of the present-day
government. It is worthy to note that although the clear and present danger test has had
periods of disfavor as well as popularity in the courts, it is rarely invoked today and if so,
it is used to support the Court’s strong historical support of civil rights. Clearly no “clear
and present danger” could be assumed from Mr. Assad’s mere presence in a federal
building.
3. The Fourteenth Amendment to the Constitution provides that no state shall deny to any
person within its jurisdiction the equal protection of the laws. While there is no
4.
corresponding provision applicable to the federal government, unreasonable
classifications by the federal government violate Fifth Amendment due process
(Bolling v. Sharpe; 1954).Of course, not all classifications violate equal protection since
law generally involves different treatment of persons. Only when a classification is
unreasonable, arbitrary and invidious, does it violate equal protection.
The reasonableness of a classification is dependent upon: 1. the basis of the
classification (presumably Mr. Assad’s greater preponderance to engage in terror since
the alleged perpertrators of the 9-11 attack were all young Muslim males of Arabic
ancestry) ), 2. the nature of the interests impaired by the classification (right to equal
protection of the law, right to be safe from unreasonable search and seizure) and 3. the
government’s interests supporting the classification (in this case the nebulous national
security issue). Clearly in this case, the government fails to show that its actions were
substantially related to an important government interest, nor pressing enough to suspend
the very fundamental rights it is sworn to defend.
4. The decision of the 14th Circuit Court of Appeals is fully consistent with the Civil
Rights Acts of 1957, 1960 and 1964 and the Fourth and Fourteenth Amendments to the
Constitution. While there is clearly a conflict between the circuits, as illustrated by the 5
Circuit Court’s decision in Mohammad v. Secret Service, this Court should affirm the
14th Circuit Court’s ruling as legally sound and consistent with precedent.
5.
5. The government has failed to prove that the basis of its search of the Respondent’s
person was reasonable suspicion. Nothing in Mr. Assad’s demeanor or behavior that day
would have led a reasonably diligent law enforcement agent to believe he was, in fact,
engaged in criminal and/or terrorist activities. Mr. Assad is guilty of “looking”
differently than the “average” American. But Mr. Assad is surely not guilty of engaging
in the type of suspicious behavior that can and should be the only basis for satisfying the
reasonableness component of “reasonable search and seizure.”
In Terry v. Ohio, patrol officers found concealed weapons on Terry and others
after observing suspicious behavior. Petitioners challenged that the search was
unconstitutional on Fourth Amendment grounds. The Court, held 8-1, a "frisk" may be
justified when its purpose is to "discover guns, knives, clubs, or other hidden instruments
for assault of the police officer," when a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others is in danger. Thus, the
essence of the holding is the self-protection. In the case of Mr. Assad, at no time did the
Federal Agents communicate that they felt personally threatened by the respondent’s
behavior.
In a subsequent ruling based on the Terry case, Illinois v. Wardlow, the Court
further defined its criteria for reasonable search and seizure, stating that “unprovoked
flight from a police officer in a high crime area, depending on the totality of the
circumstances, may be enough to justify a Terry stop.” The federal government has failed
to justify its actions even under this broader interpretation of the reasonableness standard.
6.
The simple fact is that Mr. Assad was stopped because he fit an ethnic profile that
contains characteristics as immutable as gender or height. No other reasonable
explanation is evidenced, and therefore Terry v. Ohio is inapplicable.
6.
No law enforcement agency should condone or promote the use of any racial or
ethnic profiling system in its enforcement programs. Criminal elements exist in every
segment of our society. An officer whose enforcement stops are based on race or
ethnicity is engaged in a practice that undermines legitimate law enforcement, and may
erode the very fabric of civil rights legislation as we know it. Criminality transcends any
perceived racial or ethnic parameters. To focus on a single segment of society is to limit
the effectiveness of enforcement efforts.
The ACLU has done extensive surveys on the ineffectiveness of profiling as a
prevention and/or enforcement tool. An Amicus Brief outlining the impropriety of
racial/ethic profiling has been filed with this Court.
Institutionally condoned racial profiling, such as inferred in the government’s post
September 11, 2001 anti-terrorism legislation, is both inherently repugnant to a free
society and constitutionally suspect, no matter how vague the inference. In Hunter v.
Erickson, this Court found that an amendment to the Akron City Charter requiring voter
referendum approval for any city council action involving racial discrimination in
housing violated equal protection by mandating special requirements for alleviating
alleged discrimination. In In Re Griffiths, this Court struck down a Connecticut statute
7.
that disallowed aliens from sitting for the Connecticut bar, since classifications based on
alienage, are subject to close judicial scrutiny. The state never met its burden of showing
the classification to have been necessary to vindicate the state’s interest in maintaining
high professional standards.
SUMMARY
In conclusion, Mr. Assad’s right to equal protection under the law has been violated by
the government’s summary reliance on immutable ethnic characteristics to single him out
for special investigation. Mr. Assad’s right to be free from unreasonable search and
seizure has been violated for the same reason. The government has not met its burden of
showing a compelling governmental interest in restricting these fundamental rights.
Therefore, I respectfully petition this Court to affirm the decision of the 14th Circuit Court
of Appeals in this matter.
8.
CONCLUSION
For all the reasons discussed above, I request that the decision of the 14th Circuit Court of
Appeals be affirmed..
Respectfully submitted,
ADELA ESTOPINAN
1836 Widget Street
Miami, Florida 33133
(305) 549-2500
*Counsel of Record