ATLANTA — A lawsuit filed by comedian Eric André alleging racial profiling during search at Atlanta’s airport in 2021 has been revived by a federal appeals court.

The lawsuit, filed back in 2022, accused Clayton County Police of subjecting André to a “dehumanizing and demoralizing” search on the jet bridge as he was about to board a plane, part of what the department contended was a practice meant to deter drug trafficking.

Actor Clayton English, the other plaintiff in the lawsuit, claimed a similar experience in 2020. 

The Associated Press reported in 2022 that the lawsuit claimed the searches rarely uncovered drugs or resulted in criminal charges, but did result in cash seizures providing a “financial windfall” for the police department.

The department contended all such stops were verbally agreed to, including André’s — at the time describing their officers’ interaction with him as “pleasant” and him giving consent to a search, which CCPD said was never actually conducted because the officers “made the determination that the interaction did not warrant further inquiry.”

The lawsuit asserted André only consented to a search because he believed he “did not have any choice but to continue to reply to the officers’ questions, and that he was not free to leave.” 

He wrote afterward on social media that he wished the department “owned up to it instead of creating more lies about what happened.”

A federal district court decision had tossed the lawsuit, saying it failed to plausibly allege constitutional violations.

The 11th Circuit Court of Appeals in Atlanta disagreed.

“We conclude, however, that plaintiffs plausibly alleged that Clayton County subjected them to unreasonable searches and seizures,” the opinion issued on Friday states.

Officers, the decision states, “simply walked up to André and ‘began challenging him with a series of questions,’ and they did not inform André he was free to leave until after they finished questioning him,” effecting the conditions for him to plausibly argue he was “seized” as a Fourth Amendment violation. 

English, whose luggage was in fact searched, further argued his consent to a search was coerced, which the appeals court found plausible.

As a result of finding a plausible Fourth Amendment violation, the 11th Circuit held that Clayton County did not have immunity from the lawsuit — but that the individual officers involved were entitled to qualified immunity.

The 11th Circuit decision also agreed with the district court that no 14th Amendment Equal Protection Clause violation, alleging the searches were discriminatory, occurred. 

“In support of their equal-protection claims, plaintiffs cite their allegations of racial disparities in the execution of the drug interdiction program and that CCPD supervisors are aware of those disparities, but such allegations fail to state an equal protection claim against the defendants in this case,” the decision states. “Plaintiffs’ amended complaint is devoid of any allegations that any individual defendant acted with a discriminatory purpose.”

As a result of the 11th Circuit’s opinion, the lawsuit can proceed against Clayton County again on the alleged Fourth Amendment violation. It cannot proceed against the officers or pursue the 14th Amendment violation argument.

“In the United States, you may not be seized or have your belongings searched unless you truly voluntarily consent or the government has at least reasonable suspicion to justify the seizure. Never has that basic constitutional principle been more important,” Barry Friedman, the faculty director of the Policing Project at NYU Law and the attorney who made the oral argument in the case to the 11th Circuit, said in a statement. “We are glad that the federal court of appeals has reaffirmed that principle and recognized the validity of our clients’ Fourth Amendment claims. We look forward to returning to the trial court to learn even more about the Clayton County Police Department’s unconstitutional jet bridge stop program.”

The opinion was written by Judge Elizabeth L. Branch, a Trump appointee. According to a release from NYU Law, the appeal was supported by an amicus brief from actors and entertainers including Tyler Perry, Jamie Foxx, Taraji P. Henson and Sterling K. Brown. 

See the full opinion below:

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