No. 00-1234 In the Supreme Court of the United States Petitioner. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, 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... 6 Foreign Surveillance Act (FISA) (1978) 47 U.S.C. 230... 6 Civil Rights Act (1957) 55 U.S.C. 223.... 4 Civil Rights Act (1960) 55 U.S.C. 224..... 4 Civil Rights Act (1964) 55 U.S.C. 234..... 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 20 th 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 14 th 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 14 th 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 14 th Circuit Court of Appeals in this matter.
8. CONCLUSION For all the reasons discussed above, I request that the decision of the 14 th Circuit Court of Appeals be affirmed.. Respectfully submitted, ADELA ESTOPINAN 1836 Widget Street Miami, Florida 33133 (305) 549-2500 *Counsel of Record