But judges invoke “qualified immunity”to shield agents from accountability and uphold dismissal of lawsuit seeking damages 

October 29, 2024, New York – Today, the U.S. Court of Appeals for the Second Circuit stated for the first time that U.S. government officials cannot use the No Fly List to try to coerce U.S. Muslims into spying on their communities against their religious beliefs. At the same time, the court upheld the dismissal of a lawsuit seeking damages from federal agents who engaged in the illegal practice. 

“We sued and won back our ability to fly to see our families and for work,” said lead plaintiff Muhammad Tanvir. “Then the Supreme Court agreed we could try to make federal agents pay for violating our religious rights. But it was never just about money. We fought for a decade so people would know what happened to us and so the same thing wouldn’t happen to others. Even if this decision does not give us everything, we still won.”

The case dates back to 2013, when four American Muslim men sued to compel the government to remove their names from the No Fly List, a widely abused tool expanded vastly after 9/11. The plaintiffs – Muhammed Tanvir, Jamil Algibhah, Naveed Shinwari, and Awais Sajjad – either had found themselves on the list after refusing to spy or had been approached by the FBI after finding themselves on the list. In response to this suit and others, the government created a limited process to challenge placement on the list, and as a result, the plaintiffs were once again permitted to fly. 

The remaining claims sought money damages from individual agents. Due to their placement on the No Fly List and FBI scrutiny, the plaintiffs couldn’t see family overseas for years, lost jobs, faced stigmatization in their communities, and endured emotional duress. In 2020, the case made it to the Supreme Court, which ruled unanimously that they could proceed with their damages claims under the Religious Freedom Restoration Act (RFRA). But last year, the district court dismissed the case, citing “qualified immunity,” the controversial judicial doctrine that broadly protects government officials from liability for constitutional violations when it is not already clearly established that their actions violated the law . The Second Circuit upheld that ruling today even as it clarified that RFRA prohibits the FBI’s treatment of the plaintiffs.

“Going forward, federal agents are on notice that using the No Fly List to coerce someone to become an informant against their religious beliefs breaks the law,” said Baher Azmy, legal director of the Center for Constitutional Rights, who argued the case at the Court of Appeals. “Given the notorious abuses of the No Fly List against Muslim communities, this is an important step, even if the law around qualified immunity still goes too far to shield law enforcement from accountability for past misconduct.”

Tanvir v. Tanzin was brought by the CLEAR Project, the Center for Constitutional Rights, and co-counsel at the law firm of Debevoise & Plimpton LLP.

For more information, see the Center for Constitutional Rights’ case page.  

The CLEAR project (Creating Law Enforcement Accountability & Responsibility) is housed at Main Street Legal Services, Inc., the clinical arm of CUNY School of Law.  CLEAR’s mandate is to serve clients, communities, and movements nationwide that are targeted by local, state, or federal government agencies under the guise of national security and counterterrorism.