Wilwal v. Kelly

Background

Abdisalam Wilwal, Sagal Abdigani, and their four minor children alleged that federal officers detained them for more than 10 hours at a border checkpoint in Portal, North Dakota, while they were returning from Canada. The complaint alleged that officers detained the family because Mr. Wilwal’s name appeared on a terrorism-related watchlist. The family alleged that officers approached their van with guns drawn, ordered Mr. Wilwal out, handcuffed him, and took him into the station. Mr. Wilwal allegedly remained handcuffed for nearly 11 hours, passed out without food or water, and later received medical attention. Officers allegedly questioned him about his religion and denied his requests for an interpreter and a lawyer.

Ms. Abdigani and the children were also allegedly held at the station. Officers allegedly refused to let Ms. Abdigani retrieve her phone or arrange for the children to leave. After she called emergency services, officers allegedly took the phone and searched Ms. Abdigani and M.O. The complaint alleged that officers ordered M.O. to remove his clothing for a strip search, but he refused. The family was released later that day. Mr. Wilwal and Ms. Abdigani later submitted inquiries through the Department of Homeland Security Traveler Redress Inquiry Program, but had not received final responses when the lawsuit was filed.

Claims and motion

The plaintiffs asserted claims under the Fourth and Fifth Amendments, the Administrative Procedure Act, and the Federal Tort Claims Act. The Government moved to dismiss the amended complaint in its entirety under rules governing subject-matter jurisdiction, failure to state a claim, and failure to join a required party.

Standing and jurisdiction

The Government argued that the plaintiffs lacked standing—the required connection between an alleged injury and the relief sought—to request future declaratory and injunctive relief based on one past border crossing. The court rejected that argument. At the pleading stage, the court concluded that the allegations plausibly showed concrete injuries, a reasonable expectation that the family would travel internationally again, and a possible benefit from expunging government records related to the detention.

The Government also argued that federal appellate courts had exclusive authority to review the adequacy of the watchlist redress process. The court disagreed, concluding that the plaintiffs’ challenge concerned the Terrorist Screening Center’s role in controlling watchlist decisions and that the cited statute did not remove the district court’s jurisdiction. The court also rejected the argument that the Transportation Security Administration was a required party. It concluded that the Terrorist Screening Center was named as a defendant and that the Department of Homeland Security could implement relief involving the Transportation Security Administration if necessary.

Fourth Amendment seizure claims

The court denied the motion to dismiss the claims alleging unconstitutional seizure. Although routine border searches generally do not require a warrant, probable cause, or reasonable suspicion, the court explained that the length and force of a detention can make a border detention non-routine and potentially unreasonable. The allegations that officers drew guns, ordered Mr. Wilwal out of the van, handcuffed him, and detained the entire family for nearly 11 hours were sufficient to allow a reasonable factfinder to determine that the detention violated the Fourth Amendment. The court therefore denied dismissal of Counts I and III.

Fourth Amendment excessive-force claim

The court also denied dismissal of Mr. Wilwal’s excessive-force claim in Count II. Applying the objective-reasonableness test, the court considered the alleged use of guns and handcuffs despite the absence of alleged flight or resistance, the nearly 11-hour handcuffing, and Mr. Wilwal’s alleged injury from passing out. The court concluded that the allegations plausibly supported a finding that the force was unreasonable.

Procedural due process

The court denied dismissal of Count IV, which alleged that the Government failed to provide constitutionally adequate notice and a meaningful opportunity to challenge Mr. Wilwal’s alleged watchlist placement. The court concluded that Mr. Wilwal plausibly alleged a protected liberty interest in being free from unconstitutional seizure and plausibly alleged that the watchlist redress procedures did not provide sufficient procedural safeguards.

Substantive due process

The court granted the motion as to Count V, Mr. Wilwal’s substantive due-process claim. Substantive due process protects certain fundamental rights from especially serious government conduct. The court acknowledged that a factfinder could determine that drawing guns on the family was conscience-shocking, but held that the claim nevertheless failed because the asserted right to international travel is not a fundamental right under the applicable legal test. The court dismissed Count V with prejudice.

Administrative Procedure Act claims

The court denied dismissal of Counts VI and VII. Count VI challenged Government policies allegedly permitting the unreasonable seizures. Although the allegations were general, the court concluded that they were sufficient at the motion-to-dismiss stage to allege that the combination of agency standards, criteria, and watchlist use was contrary to law. Count VII challenged the watchlist redress procedures and the lack of notice and a meaningful opportunity to contest continued watchlist retention. The court concluded that Mr. Wilwal plausibly alleged that those procedures were contrary to constitutional rights and otherwise unlawful under the Administrative Procedure Act.

Federal Tort Claims Act claims

The court denied dismissal of Counts VIII, IX, and X, which asserted federal tort claims for false arrest or imprisonment, assault, and battery. Because the alleged detention occurred in North Dakota, the court applied North Dakota tort law. It concluded that the allegations plausibly showed total restraint and allowed a reasonable factfinder to determine that officers exceeded their authority at the border. The allegations that officers drew guns on the family, ordered Mr. Wilwal out at gunpoint, and handcuffed him despite the absence of alleged resistance were also sufficient to support the assault and battery claims at this stage.

Disposition

The order states that the Government’s motion to dismiss was GRANTED IN PART AND DENIED IN PART. It was granted as to the plaintiffs’ Fifth Claim for Relief alleging substantive due-process violations, and that claim was DISMISSED WITH PREJUDICE. The motion was denied in all other respects. The ruling allowed the remaining claims to proceed; it did not decide whether those claims would ultimately succeed.