Public Interest Law Firm Urges Court to Deny Qualified Immunity to FBI Agents Who Weaponized the No Fly List to Retaliate Against Muslims

Dan King
Dan King · August 7, 2023

ARLINGTON, Va.—On Friday, the Institute for Justice (IJ) submitted an amicus brief arguing that agents from the Federal Bureau of Investigation (FBI) who weaponized the No-Fly List to retaliate against a group of Muslims for refusing to become informants, are not entitled to qualified immunity. The brief explains that qualified immunity should not shield federal officers from lawsuits when a plaintiff sues under the Religious Freedom Restoration Act (RFRA). But, even if the court grants qualified immunity, it should at the very least state that the plaintiffs’ rights were violated, so going forward the right to be free from this type of an egregious retaliation is “clearly established.”    

“We’re encouraging the Second Circuit Court to acknowledge what the text of RFRA makes clear: there is no legal basis for qualified immunity to shield officials from lawsuits brought under RFRA,” said IJ Attorney Seth Young.  

Following the Sept. 11, 2001, terrorist attacks, FBI agents unsuccessfully attempted to pressure a group of innocent Muslims, including Muhammad Tanvir, to become informants for the Bureau. Tanvir and the others—who were all either American citizens or lawful permanent residents—declined to become informants, because doing so goes against their sincerely held religious beliefs. FBI agents then harassed the group and placed them all on the No-Fly List. This forced Tanvir to quit his job as a long-haul trucker, because the work required him to fly home after each trip. Additionally, he lost money on unused airline tickets. Nobody in the group was suspected of any crimes. 

Tanvir sued the individual FBI agents for damages under RFRA, and the case made it all the way to the United States Supreme Court in 2020. At that point, the high court ruled that FBI agents were suable under the RFRA and sent it back to the district court. Despite that ruling, the district court still granted the FBI agents qualified immunity, concluding that the right that was violated was not “clearly established.” Now, Tanvir is appealing that decision to the U.S. Court of Appeals for the Second Circuit.

Courts used to follow a two-step process to determine whether to grant qualified immunity: (1) Was a constitutional right violated? And (2) Is that right “clearly established?” But in 2009, the Supreme Court weakened that requirement and allowed courts to jump right to point two, which is what occurred in Tanvir. 

“Qualified immunity denies accountability. Allowing courts to jump right to the ‘clearly established’ test only makes that problem worse because it ensures that no law will be clearly established, and the immunity cycle continues,” said IJ Senior Attorney Patrick Jaicomo. “Qualified immunity should not exist at all. It certainly should not apply to RFRA. But if it does, the court should at least grapple with the fact that a constitutional violation occurred.”