New York Law School

The Case of Shoshana Hebshi – A Cautionary Tale on the Use of Racial Profiling

On September 11, 2011, Shoshana Hebshi boarded Flight 623 en route from San Francisco, California to Detroit, Michigan.  Ms. Hebshi, a 35 year-old American born and raised in California, was returning home from a Labor Day weekend spent visiting her sister.  While she anticipated that security would likely be increased on the ten year anniversary of 9/11, the daughter of a Saudi man and Jewish woman had no inkling that her journey home would culminate with her being arrested, detained and strip searched, solely because of her ethnicity, and because she had the “misfortune” of being seated between two men of South Asian origin.

Ms. Hebshi recalled those events in detail in an article that she posted on her blog the following day.  As Flight 623 landed that afternoon, all had been going according to plan during Ms. Hebshi’s travels.  She had cleared airport security at San Francisco International Airport without any issues, and boarded her Frontier Airlines flight destined for Denver, Colorado.  After arriving in Denver, Ms. Hebshi boarded her connecting flight to Detroit, without ever leaving the airport or security zone.  Shortly after hitting the tarmac in Detroit, the Captain announced on the loudspeaker that the plane was being diverted to another area of the airport, and warned that there would be consequences if any passengers were to leave their seats.   Shortly thereafter, Ms. Hebshi noticed a squadron of police cars with their lights and sirens on following alongside the plane.  She turned to her neighbor, an Indian man, and wondered whether there was a fugitive on the plane that the police were coming for.  Neither passenger foresaw that it was, in fact, them who the authorities were coming after.

Several minutes later, heavily armed agents boarded the plane and proceeded to forcibly remove Ms. Hebshi in handcuffs, along with the two men that she was seated next to.  Once outside the plane, officers pushed Ms. Hebshi up against a police car, asked her if she was wearing any explosives, had her spread her legs and conducted a pat search on her.  Ms. Hebshi was then brought to a detention facility at the airport and placed in a six by ten foot cell for several hours, during which she was interrogated by several officers and subjected to a strip search, requiring Ms. Hebshi to strip naked, bend over and cough in front of an officer.  In her blog post, she described feeling “frightened and humiliated” throughout the ordeal.  Sufficiently convinced that Ms. Hebshi in fact posed no threat, federal authorities released her approximately four hours after being arrested, and apologized for the inconvenience.  The FBI has since publically stated that Ms. Hebshi was not involved in any suspicious activity.

On January 22, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of Shoshana Hebshi against the Detroit Metro Airport, Frontier Airlines and federal authorities.  The complaint, filed in the United States Court for the Eastern District of Michigan, alleges that Ms. Hebshi was targeted by authorities without any articulable facts connecting her to criminal activity or providing probable cause.  Rather, she was arrested because she has an Arab last name and was seated next to two men of South Asian origin who each allegedly got up from their seat to use the bathroom for ten to twenty minutes during the flight.  Despite the fact that Ms. Hebshi did not know the men that she was assigned to sit next to and did not so much as speak with them or leave her seat, the Frontier Airlines crew provided Ms. Hebshi’s name to federal and state authorities in describing the allegedly suspicious activity of the two men seated next to her.  The complaint adds that none of the passengers or flight attendants either observed or reported that there was anything suspicious about Hebshi or her conduct during or after the flight.

As the authorities acted based only on their knowledge of Ms. Hebshi’s seat assignment and that she was of middle eastern descent, the complaint asserts that Ms. Hebshi was arrested, detained and strip-searched without probable cause for her arrest and in violation of her rights under the 4th and 14th Amendments to the United States Constitution.  Assuming the facts alleged in the complaint to be true, the government’s actions represent a clear disregard for the law governing search and seizures under the Constitution.  Even the most staunch supporter of racial profiling as an effective and efficient law enforcement technique would not likely attempt to justify the treatment of Ms. Hebshi – a young, mother of two children that appears to have engaged in no suspicious activity whatsoever.  Even if Ms. Hebshi were found to have done something to warrant suspicion, there is little doubt as to whether her subsequent treatment by authorities was even within the realm of being reasonable.

It may then be tempting to characterize her ordeal as an isolated incident; one that the law clearly cannot protect against precisely because the law under the Fourth Amendment is intended to protect against exactly the type of conduct that the complaint objects to.  However, a more thorough consideration of the incident’s implications would not warrant such a dismissal.  While the law may not expressly condone such behavior by authorities, that behavior nonetheless appears to be a reflection of a willingness to accept racial profiling and the associated sacrifice of the civil liberties of a few because they are done in the interest of public safety or national security.

In the years since 9/11, that willingness has been manifested through the use of racial profiling of individuals of Middle Eastern descent as part of counter-terrorism initiatives.  Despite publicly disparaging the use of such law enforcement techniques in guidelines promulgated by the Department of Justice in 2003, the Bush Administration carved out an exception to a general prohibition against the use of racial profiling “with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security or the integrity of the Nation’s borders.”  The exception espouses the view that our strong interest in protecting national security in the war on terror justifies the adoption of law enforcement techniques that the President’s administration itself described in the introduction of the same guidelines as “not merely wrong, but also ineffective.”  A 2004 report by the ACLU outlines the ways in which that exception provided for the use of racial profiling as a part of official government policy.  That policy was implemented through the secret roundup and FBI questioning of Arab, Muslim and South Asian Men, as well as a special registration program, the National Security Entry-Exit Registration System (which was eliminated by the Department of Homeland Security in 2011).  Viewed in light of the history of profiling since 9/11, it seems difficult to characterize Ms. Hebshi’s experience as a mere isolated incident to be addressed by the courts, and undeserving of public concern.  Rather, that experience sheds important light on the importance of protecting individuals’ civil liberties, and the dangers that are manifested when we show a willingness to derogate them through the use of racial profiling, and on the basis of fear.

Racial profiling refers to the targeting of individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin.  Proponents of racial profiling argue that the technique is a rational reaction to objective statistics regarding who is most likely to commit certain crimes.  Any civil liberty that may be sacrificed is thus considered to be a reasonable price to pay for the benefit of public safety and welfare.   Paul Sperry, of the Stanford University Hoover Institute, has likened racial profiling to an insurance company profiling policyholders based on probability of risk.  “That’s just smart business.  Likewise, profiling passengers based on proven security is just smart law enforcement,” Sperry wrote in a 2005 opinion-editorial for the New York Times.  Underlying such support in the context of counter-terrorism is the basic premise that if law enforcement dedicates more resources to investigating and searching members of a higher-offending group, they will inevitably increase the detection of terrorist activities.  For its proponents, racial profiling’s use is simply justified by an iron law of probabilities and the grave danger that it is intended to protect against.

Its critics argue against its use for two reasons.  First, many dispute its effectiveness, and argue that profiling results in sloppy police work because it detracts from officers’ focus on actually suspicious behavior.  The former head of counterterrorism at the CIA, Vincent Cannistano was quoted in a 2002 Newsweek article as stating that “profiling is too crude to be effective.”  It is, essentially, a method of fishing by casting too wide a net.  Rather than focusing on pre-attack behaviors, it redirects attention towards characteristics that are less predictive of true danger.  Bernard Harcourt, a Professor of Law at the University of Chicago, has argued that profiling is ineffective because it assumes that terrorists are not going to adapt to changing circumstances.  In his 2006 Law Review article, Professor Harcourt points out that “there is no reliable empirical evidence that racial profiling is an effective counterterrorism measure and no solid theoretical reason why it should be.”  Likewise, New York City Police Commissioner Raymond Kelly was quoted in a 2006 article in the New Yorker as criticizing the use of profiling.  In doing so, Commissioner Kelly stated, “Look at the 9/11 hijackers.  They came here.  They shaved.  They went to topless bars.  They wanted to blend in … I think profiling is just nuts.”

Apart from doubt as to profiling’s effectiveness, the tactic is criticized on the basis that it is in direct conflict with notions of equality and liberty that are fundamental to our democracy and system of criminal justice.  Whatever the merits of racial profiling may be in combatting crime, the issue at the center of the debate is whether our right to equal protection under the law is derogable.  That is, can a targeted group of individuals’ civil liberties be cast aside because doing so is arguably in the interest of public safety or national security?  In answering that question, we should consider what happened to Shoshana Hebshi, and ask ourselves not only whether such inefficient tactics will lead to the capture of those who really want to harm us, but whether it is consistent with the democratic society that we envision for ourselves and our loved ones.   So long as we accept the importance of balancing our interests in safety with the protection of the values and rights that are essential to our democratic society, Ms. Hebshi’s case appears to stand for the grave danger in condoning any policy that provides for the targeting of individuals for suspicion of crime based on their race or ethnicity.


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