Full opinion text
MEMORANDUM AND ORDER BLOCK, Senior District Judge: TABLE OF CONTENTS STATEMENT OF THE CASE .443 Facts.443 I. Events at San Diego International Airport.443 II. Events During the Flight.444 III. Events at JFK.446 IV. Events at the Port Authority Police Station.447 The Commencement of the Litigation.448 The Government’s Justification for Its Conduct.448 DISCUSSION.449 Summary Judgment Standards.449 Bivens and FTCA Claims.450 I. Analytical Framework.450 A. Bivens Claims.450 B. FTCA Claims.451 C. Qualified Immunity.452 II. Analysis.452 A. Were Plaintiffs Arrested?.452 1. Show of Force and Restraint of Movement at the Terminal.453 2. The Jailings and Custodial Interrogations.454 3. Duration of the Detentions and Interrogations.455 B. Was There Probable Cause for the Arrests?.457 1. Was There Probable Cause Based on Non-Ethnic Factors Alone? .458 2. Would Consideration of Plaintiffs’ Ethnicity Warrant a Finding of Probable Cause?.460 3. Can Plaintiffs’ Arab Ethnicity Serve as a Probable Cause Factor?.460 C. Are Smith and Plunkett Entitled to Qualified Immunity?.468 Remaining Claims.470 CONCLUSION. .471 On August 22, 2004, weeks away from the third anniversary of 9/11, plaintiffs Tarik Farag (“Farag”) and Amro Elmasry (“Elmasry”), both Arabs, flew from San Diego to New York’s John F. Kennedy Airport (“JFK”) on American Airlines Flight 236. They claim that when they deplaned they were met by at least ten armed police officers in SWAT gear with shotguns and police dogs, ordered to raise their hands, frisked, handcuffed and taken to a police station, where they were placed in jail cells; they were not released until about four hours later, after having been interrogated at length during their imprisonment regarding suspected terrorist surveillance activity aboard the plane. The investigation yielded absolutely no evidence of wrongdoing. Alleging that they were unlawfully seized and imprisoned, Farag and Elmasry have each brought an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendants FBI Special Agent William Ryan Plunkett (“Plunkett”) and New York City Police Department Detective Thomas P. Smith (“Smith”), two counterterrorism agents responsible for plaintiffs’ seizures, detentions and interrogations. Plaintiffs also sue the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., for Plunkett’s and Smith’s allegedly tortious conduct. The defendants (collectively, the “Government”) now move for summary judgment on the merits; alternatively, Plunkett and Smith seek summary judgment as to plaintiffs’ Bivens claims on the ground of qualified immunity. Plaintiffs have not cross-moved. The Government considers this “a case of first impression for the federal courts” because it “presents important questions concerning the scope of legitimate law enforcement activity in response to suspected terrorism-related conduct by passengers on board a domestic commercial aircraft.” Def ts’ Mem. of Law in Support of Mot. for Summ. J. (hereinafter “Gov’t Br.”) at 1. It contends (1) that the agents merely conducted a valid Terry stop when they seized, detained and questioned plaintiffs for approximately four hours, or (2) alternatively, if the Court determines that the agents arrested plaintiffs, that there was probable cause to do so. In either case, the Government “take[s] the position that the Arabic ethnicity of the plaintiffs is and was a relevant factor in the Fourth Amendment analysis.” Tr. of Oral Argument, July 18, 2008, at 13. The Court rejects the Government’s contention that plaintiffs’ ethnicity can be a factor in determining the validity of plaintiffs’ seizures and detentions, and holds that plaintiffs’ Bivms and FTCA claims survive summary judgment. Further, with respect to the Bivens claims, the Court holds that summary judgment cannot be granted on Smith and Plunkett’s qualified-immunity defense, since there are factual issues to be resolved at a trial. STATEMENT OF THE CASE Facts The facts are taken primarily from the Government’s Rule 56.1 Statement of Undisputed Material Facts (hereinafter “Gov’t Stat.”), which consists largely of plaintiffs’ own deposition testimony describing the relevant events. The Government admits the contents of its Rule 56.1 Statement to be true only for the limited purpose of its motion for summary judgment, and has “reserve[d] the right to dispute the facts” in the event of a trial. Gov’t Stat. at 1, n. 1; see Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 298 n. 4 (2d Cir.1996) (“[Defendant] concedes negligence for purposes of its summary judgment motion, while preserving its right to challenge negligence should the case go to trial.”). In footnotes, the Court indicates where plaintiffs, in their responsive Rule 56.1 Statement (hereinafter “PI. Stat.”), take exception to the facts as characterized in the Government’s Rule 56.1 Statement. The court also takes information from (1) Smith and Plunkett’s contemporaneous incident report; (2) Plunkett’s contemporaneous summary of his interrogation of Elmasry; (3) Smith’s contemporaneous summary of his interrogation of Farag; and (4) the declaration of Dennis Walsh, the pilot of Flight 236 — all of which the Government submitted in support of its summary-judgment motion. I. Events at San Diego International Airport Farag and Elmasry, long-time friends, were flying from San Diego International Airport to JFK after vacationing in California. Both were born in Egypt, but Farag, 36, had moved to the United States in 1971 at age five and later became an American citizen. He was a retired New York City police officer, and was then employed by the United States Bureau of Prisons as a corrections officer. Elmasry, 37, was an Egyptian citizen; he was employed in Egypt by General Electric as an area sales manager for its Africa-East Mediterranean region, and had a valid United States visa. After plaintiffs boarded the plane, they took neighboring but non-adjacent seats: Farag was seated in 17E, a middle seat on the right side of the aisle, and Elmasry was seated in 18A, a window seat on the left side, one row behind Farag. Smith and Plunkett were seated nearby: Smith was in seat 17A, a window seat immediately in front of Elmasry and in the same row as Farag, but on the other side of the aisle, and Plunkett was one seat away in 17C, the aisle seat. The seat between Smith and Plunkett, 17B, was vacant. Plaintiffs did not know that Smith and Plunkett were counterterrorism agents. Plaintiffs placed their carry-on luggage in the overhead compartments above their respective seats, and, once seated, “talked to each other, over the heads of the other passengers, in a mixture of Arabic and English.” Gov’t Stat. ¶33. While the plane was at the gate, Elmasry entered the aisle and asked Plunkett if he would be willing to shift over one seat to 17B, the center seat, and let Elmasry sit in 17C, the aisle seat. Plunkett declined. After Elmasry left his seat to speak to Plunkett, a female passenger seated next to Elmasry in 18B had stretched her legs across Elmasry’s seat. After Plunkett refused Elmasry’s request, Elmasry, rather than returning to his seat, asked Smith and Plunkett if he could sit between them, in the vacant seat 17B. Smith and Plunkett agreed. According to the agents’ contemporaneous incident report, Plunkett thought it “unusual that anyone would move from an exit row window seat to an exit row middle seat ... in between two large men,” Incident Report, Ex. C to Perry Deck, at 2, but the report also acknowledges that Elmasry had explained that he wanted to change seats “so he could be ‘close to [his] friend[.]’ ” Id. at 1. Even after Elmasry moved to 17B, he and Farag still “were only able to converse with each other ... over the heads of other passengers.” Gov’t Stat. ¶ 39 (quoting Compl. ¶ 30). Once again, they spoke “in a mixture of Arabic and English,” id., but were now “speaking loudly.” Id. At some unspecified point, Farag fell asleep. II. Events During the Flight As the plane took off — as well as at various other times throughout the flight— Smith and Plunkett noticed Elmasry looking at his watch. According to the two agents, Elmasry appeared to be “timing” various events during the flight, such as takeoff, attainment of level flight, and the commencement of the meal service. Id. ¶43. About half an hour after takeoff, Elmas-ry left his seat to go to the lavatory at the rear of the plane. On his way back, El-masry spoke with a flight attendant, asking if there were two adjacent empty seats to which he and Farag might move. El-masry then returned to the seat between Smith and Plunkett and fell asleep. He awoke during the meal service; Farag had already awakened some time earlier. Once the meal had been served and plaintiffs had eaten, the flight attendant with whom Elmasry had spoken approached him in his seat between the agents and “told him that there were two empty seats at the back of the plane for him and Far-ag.” Id. ¶ 47. Elmasry entered the aisle, leaned over to Farag, and spoke a “very short sentence” in a mixture of Arabic and English. Id. Plaintiffs moved to the two seats at the rear of the plane but did not take their carry-on bags with them. About an hour and a half before landing, Smith and Plunkett decided that Farag and Elmasry should be detained and questioned when the plane landed because the agents were concerned that plaintiffs “may be conducting [terrorist] surveillance[ ] or probing operations.” Id. ¶ 63 (quoting Incident Report, Ex. C to Perry Deck, at 2). Plunkett explained to the flight’s captain that “two men of [MJiddle [E]astern descent” were “acting suspicious” in that “they were talking back and forth in Arabic” and that “one of them got up from his assigned seat and sat between [Smith and Plunkett].” Walsh Deck, Ex. E to Occh-iogrosso Aff., at 1. Although the agents “did not feel that these two individuals posed an immediate threat to the flight,” they nonetheless asked the captain to “request! ] a team of officers ... to meet the approaching aircraft at the gate ... and [to inform them] that two [M]iddle [Eastern males will be stopped and questioned about their actions during the flight.” Incident Report, Ex. C to Perry Deck, at 2. Elmasry and Farag remained at the back of the plane until shortly before landing. After an announcement was made that landing was imminent and the passengers were told to fasten their seat belts, Elmasry returned to seat 17B, between Smith and Plunkett, where he had previously been sitting; Farag sat in Elmasry’s original seat, 18A, directly behind Smith. Once the plane landed, at approximately 11:30 p.m. local time, Smith and Plunkett again saw Elmasry check his watch. The plane took between thirty and forty-five minutes to reach the gate. At some point during that interval, Elmasry took out his cellular phone and paged through his address book, deleting five or six entries. Meanwhile, Farag made two or three “short” calls on his cellular phone; he spoke in English. Gov’t Stat. ¶ 57. While the plane was taxiing, Smith asked Elmasry, who was seated beside him, where he was from and what he did for a living. Elmasry truthfully told Smith that he was from Egypt, that he was employed by General Electric, and that he was in the United States on vacation. El-masry then asked Smith what he did for a living; Smith falsely told Elmasry that he worked for the delivery company DHL. Elmasry remarked that Smith’s job must involve a lot of traveling; Smith said that it did. Elmasry then told Smith that in his own job, he, too, “[was] always traveling.” Id. ¶ 58. III. Events at JFK Once the plane reached the gate, Plunk-ett went to the front of the aircraft; soon thereafter, the passengers began deplaning. According to the agents, “Plaintiffs were detained as they exited the aircraft.” Id. ¶ 68 (citing Incident Report, Ex. C to Perry Deck, at 3.). As Elmasry recalled events, he retrieved his carry-on bag from the overhead bin and began to deplane, with Farag close behind. Smith and Plunkett had already deplaned. Upon exiting the aircraft, Elmasry saw uniformed police officers standing in the jetway. Plunkett was signaling toward him and Farag. One of the uniformed officers took hold of Elmasry and escorted him into the terminal; another officer did the same to Farag. No one pointed a gun at either plaintiff. According to Farag, on the other hand, after the passengers had begun deplaning, five or six plainclothes Port Authority police officers boarded and identified themselves, speaking in a “conversational tone”; their badges were displayed on their jacket pockets. Id. ¶ 62. The Port Authority officers seized plaintiffs at their seats, grabbing them by their arms; they did not have their guns drawn and did not tell plaintiffs that they were under arrest. The officers asked for plaintiffs’ carry-on bags and escorted them off the aircraft while Smith and Plunkett “were standing there.” Id. Farag does not recall seeing any uniformed police officers until plaintiffs entered the terminal. Upon entering the terminal, plaintiffs saw a team of uniformed Port Authority police officers (Elmasry remembers ten; Farag, fifteen to twenty) “in SWAT gear”; some had police dogs. Id. ¶ 64. The officers were “carrying shotguns,” but no officer pointed a gun at either plaintiff. Id. According to Farag, these officers formed a “perimeter” around the gate area. Id. Farag and Elmasry were separated and taken to locations thirty-five to forty feet apart. Each was accompanied by two officers (Farag by Smith and Plunkett, and Elmasry by two Port Authority officers); a fifth officer walked back and forth between Farag and Elmasry. While at these two locations, Farag and Elmasry were ordered to raise their hands and were frisked. Smith then began questioning Farag, who provided Smith with identification and told him truthfully that he was a retired New York City police officer and a federal corrections officer employed by the Bureau of Prisons. Farag mentioned to Smith that “after 9/11, when the CIA had c[o]me into the Federal Bureau of Prisons, [Farag’s] supervisors had asked [him] to translate documents, to translate tapes.Id. ¶ 69. He also told Smith that he had “had guns pointed at [him] as a police officer” with the NYPD. Id. Farag explained that during this conversation with Smith he was “[s]cared, frightened, paranoid, [and his] mind was racing[,]” that he was “jittery” and “shaking” and “[his] speech was not calm[,]” and that he was in “a complete sta[t]e of shock” and was “totally confused.” Id. Elmasry, who could see Farag at that time, observed that Farag was “nervous[,]” that he looked agitated and jumpy, and that Farag raised his voice at times. Id. ¶ 68. “At some point thereafter,” the police officers handcuffed Farag and then Elmas-ry. Id. Although Elmasry recalls being handcuffed “approximately fifteen minutes after being brought into the terminal,” id., Plunkett, in his contemporaneous report, stated that plaintiffs were “handcuffed upon exiting the aircraft.” Plunkett Report, Ex. A to Perry Deck, at 1. During this time in the terminal, none of the officers pointed their guns at plaintiffs, struck them, or called them any derogatory names. Farag testified that “all of the law enforcement officers who were on the scene acted in a professional manner.” Gov’t Stat. ¶ 73. IV. Events at the Port Authority Police Station After they were handcuffed, Farag and Elmasry were taken in separate police cars to a Port Authority police station between five and fifteen minutes away. Upon their arrival, they were placed in separate holding cells. Elmasry’s handcuffs were removed as soon as he was placed in the cell; Farag spent “a little while” inside his cell before his handcuffs were removed. Id. ¶ 75. After thirty to forty-five minutes in his cell, Elmasry was taken to an interrogation room for questioning by Plunkett and a plainclothes Port Authority officer. The questioning lasted approximately two-and-a-half to three hours. “[T]hey would question him for fifteen to twenty minutes, then leave the room for twenty minutes, then question him again, then leave the room, again, several times[,]” id. ¶ 78; “[o]ne time they questioned him for forty-five minutes to one hour.” Id. The Port Authority officer spoke “loudly” and in an “aggressive” manner. Id. ¶ 79. Elmasry was asked not just about his relationship with Farag, his seat changes, his glancing at his watch and his deletion of numbers from his cellular phone, but also about his religious beliefs, items in his luggage, his employment with General Electric, the stamps in his passport and various names and notes in his address book. Plunkett also viewed photographs stored in Elmas-ry’s digital camera. At the end of the questioning, Plunkett told Elmasry that he had not been arrested, but merely “stop[ped] for interrogation.” Id. ¶ 84. Plunkett’s contemporaneous notes state that Elmasry was “cooperative during the entire interview and showed no signs of hostility.” Plunkett Report, Ex. A to Perry Deel., at 1. Farag remained in his cell for more than an hour. While he waited, Farag asked Smith twice if he could call a lawyer; “Smith said Farag could ... if he wanted to, but did not arrange for him to do so.” Gov’t Stat. ¶ 93. Farag was then removed from his cell; he did not ask again to contact a lawyer. He was taken to an interrogation room where he was questioned by Smith for about two hours. He was asked not just about his relationship with Elmasry, their vacation together, and his seat changes on the airplane, but also about his religious practices, his employment background, whether he had any connections with anti-American groups, and whether he “c[ould] get close to the terrorists that [he] translate^] for at the Bureau of Prisons.” Id. ¶¶ 89, 94. Smith also examined photographs on Farag’s digital camera. In their report, the agents wrote that “during their questioning of Farag and Elmasry” they requested various background checks from the FBI, the CIA and the Bureau of Immigration and Customs Enforcement; these background checks confirmed that Farag had indeed been a New York City police officer and was then employed as a corrections officer with the Federal Bureau of Prisons. Id. ¶ 95. The record does not reflect whether these requests were made while plaintiffs were being questioned at the terminal or at some specific time during their jailhouse interrogation; nor does it reflect how long it took to get responses. Farag and Elmasry were released at approximately 4:00 a.m., about four and a half hours after they had been taken off the plane. At no point during their detentions or interrogations did any officer strike or threaten them; nor did any officer use profanity or ethnic slurs. The Commencement of the Litigation Before initiating this action, plaintiffs complied with the administrative prerequisites for suing the United States under the FTCA by duly filing written notices of claim. See 28 U.S.C. § 2401(b). In addition to the United States and Smith, plaintiffs’ complaint named as defendants: (1) the City of New York; (2) the Port Authority of New York and New Jersey; (3) seven Port Authority officers; and (4) “FBI Agent ‘John Doe,’ ” who was in fact Plunkett. Plunkett was not initially served with process. Thereafter, the United States and Smith certified that Smith, although a New York City police detective, “was acting ... as a deputized federal employee of the Federal Bureau of Investigation’s Joint Terrorism Task Force ... at the time of the conduct alleged in the complaint.” Cert, of Scope of Employment for Thomas P. Smith at 1. Therefore, plaintiffs agreed to the dismissal of their claims against the City of New York. Additionally, the Government stipulated that the actions of the various Port Authority defendants were taken solely at Smith and Plunkett’s direction; consequently, plaintiffs agreed to the dismissal of their claims against the Port Authority and its officers. Plaintiffs ultimately did serve process on Plunkett; he has appeared and is represented by the U.S. Attorney’s Office, as are Smith and the United States. The Court sua sponte has amended the caption of the complaint to name the United States, Plunkett and Smith as the sole defendants. The Government’s Justification for Its Conduct The Government lists the following actions of Farag and Elmasry on the aircraft, which, they argue, supported the agents’ “concern that [plaintiffs] may [have been] conducting [terrorist] surveillance or probing operations,” Gov’t Br. at 5, and justified the agents’ seizures, detentions, and interrogations of plaintiffs: • At the beginning of the flight, despite sitting on opposite sides of the aisle, plaintiffs spoke to each other over the heads of other passengers in a mixture of Arabic and English; • Elmasry made an allegedly “unusual” initial seat change “from a window seat ... to a middle seat ... between two other male passengers”; • After Elmasry changed seats, he and Farag talked to each other “loudly” over the heads of other passengers in a mixture of Arabic and English; • Elmasry looked at his watch when the plane took off, when the plane landed, and at other points during the flight; • After the meal service, Elmasry “got out of his seat ..., went into the aisle, leaned over to Farag, and spoke a Very short sentence’ to Farag in a mixture of Arabic and English”; • Immediately thereafter, plaintiffs moved together to the back of the plane, and did not take their carry-on luggage with them; • Plaintiffs got up to return to the front of the cabin at the very end of the flight, after the “fasten seatbelt” indicator was lit; • Upon returning to the front of the plane, Farag did not sit in his original seat (17E), but rather, in Elmasry’s original seat (18A), which was located directly behind Smith; • After the plane landed, Elmasry took out his cellular phone and deleted five or six numbers; • While the plane was taxiing to the gate, Elmasry told Smith that “he is from Egypt, that he works for GE, and that ‘[his] work is always traveling.’ ” See Gov’t Br. at 14-16. The Government lists the following events that took place in the terminal at JFK, after plaintiffs were first detained, as further support for the agents’ actions: • Farag told Smith that “after 9/11, when the CIA had c[o]me into the Federal Bureau of Prisons, my supervisors had asked me to translate documents, to translate tapes, [and] in fact I did translate tapes”; • Farag told Smith that “I had guns pointed at me as a police officer”; • While Farag was telling these things to Smith, Farag was “jittery” and “shaking” and “[his] speech was not calm.” He appeared “nervous” and seemed “jumpy and agitated,” and he raised his voice. See Gov’t Br. at 25-26. DISCUSSION Summary Judgment Standards A district court must grant summary judgment “whenever it determines that there is no genuine issue of material fact to be tried.” Savino v. City of New York, 331 F.3d 63, 71 (2d Cir.2003) (citing Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Court must “resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.” Id. (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). In a Bivens action, “it would usually be a jury’s task to decide whether a detention amounted to a de facto arrest, since ‘[t]he issue of precisely when an arrest takes place is a question of fact.’” Oliveira v. Mayer, 23 F.3d 642, 645 (2d Cir.1994) (quoting Posr v. Doherty, 944 F.2d 91, 99 (2d Cir.1991)). Where, however, “there can be but one conclusion as to the verdict that reasonable [jurors] could have reached” as to the existence of a de facto arrest, it is appropriate for a court to decide the question on summary judgment. Id. (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 359 (2d Cir.1992)) (alteration in Oliveira). “In order to defeat [a] claim of false arrest on a motion for summary judgment, [the movant-defendant must] show that probable cause existed and that there was ‘no dispute as to the pertinent events and the knowledge of the officers.’ ” Codling v. City of New York, 68 Fed.Appx. 227, 228-29 (2d Cir.2003) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); see also Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir.2007) (“[W]here there is no [material] dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court.” (citations omitted)). Finally, though the existence of qualified immunity “ordinarily should be decided by the court long before trial[,]” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citation omitted), “that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration [of the underlying facts] is normally required.” Oliveira, 23 F.3d at 649 (citations omitted). Bivens and FTCA Claims I. Analytical Framework A. Bivens Claims “[W]here an individual has been deprived of a constitutional right by a federal agent acting under color of federal authority, the individual may bring a so-called Bivens action for damages against that federal agent in an individual capacity....” Lombardi v. Whitman, 485 F.3d 73, 78 (2d Cir.2007) (internal quotation marks and citation omitted). Plaintiffs seek damages under Bivens for what they claim were warrantless arrests without probable cause in violation of the Fourth Amendment. Plaintiffs’ Fourth Amendment rights would, of course, have been violated if they were arrested without “probable cause to believe a crime ha[d] been or [was] being committed.” United States v. Delossantos, 536 F.3d 155, 158 (2d Cir.2008) (citations omitted). But under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, Smith and Plunkett could lawfully have conducted a limited detention with only “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot[.]’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868); see also United States v. McCargo, 464 F.3d 192, 197 (2d Cir.2006) (investigative detention under Terry “requires considerably less of a showing than probable cause.” (citation omitted)). However, even under the “reasonable suspicion” standard, “[an] officer ... must be able to articulate something more than an ‘inchoate and unparticularized suspicion or hunch.’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Where the reasonable suspicion standard is met, “[t]he scope of a Terry stop must ... be reasonable....” McCargo, 464 F.3d at 198. Although “the methods police used need not be the least intrusive available[,] ... the police [may not] act[ ] unreasonably in failing to recognize or to pursue [less-intrusive means].” Id. (internal quotation marks and citation omitted); see also Gilles v. Repicky, 511 F.3d 239 (2d Cir.2007) (“[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”) (citation omitted; emphasis added). Thus, even assuming arguendo that Smith and Plunkett had reasonable suspicion to make a Terry stop, if that stop “continue[d] too long or bec[ame] unreasonably intrusive, it ... ripen[ed] into a de facto arrest that [required] probable cause.” United States v. Glover, 957 F.2d 1004, 1011 (2d Cir.1992) (citations omitted). B. FTCA Claims Under the FTCA, the United States is liable in money damages for a federal employee’s common-law torts “in the same manner and to the same extent as a private individual under like circumstances ....” 28 U.S.C. § 2674. Plaintiffs’ FTCA claims are based upon their contentions that Smith and Plunkett committed the common-law torts of false arrest and false imprisonment. In suits under the FTCA, “the court [is] to apply the substantive law of the place where the events occurred” — here, New York. Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994). “[A] plaintiff will prevail on a claim of false arrest under New York law if he can show that the arrest was ... not based on probable cause.... ” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.2007) (citing Broughton v. State, 37 N.Y.2d 451, 456-57, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)). The probable-cause standard under New York state law is functionally identical to the analogous standard under the federal Constitution. See Weyant, 101 F.3d at 852. Consequently, the same probable-cause evaluation that drives the Court’s analysis of plaintiffs’ Bivens claims against Smith and Plunkett also drives the Court’s analysis of plaintiffs’ common-law false-arrest claims against the United States pursuant to the FTCA. C. Qualified Immunity Even if the Court determines that plaintiffs were arrested without probable cause or subjected to a Terry stop without reasonable suspicion, Smith and Plunkett may be protected from Bivens liability by the defense of qualified immunity, which “shields government officials performing discretionary functions ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The United States, by contrast, may not assert qualified immunity as a defense to plaintiffs’ FTCA claim. See Castro, 34 F.3d at 111 (“In a suit against the United States under the FTCA ... qualified immunity will not immunize the United States from liability .... ” (citing Rivera v. United States, 928 F.2d 592, 608-09 (2d Cir.1991))); Li v. Aponte, No. 05 Civ. 6237(NRB), 2008 WL 4308127, at *7 n. 42 (S.D.N.Y. Sept.16, 2008) (holding qualified immunity defense unavailable to the United States in FTCA action). II. Analysis A. Were Plaintiffs Arrested? Preliminarily, a plaintiff asserting a violation of the Fourth Amendment “must ... show some deprivation of liberty consistent with the concept of ‘seizure.’ ” Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995) (footnote omitted). There is no question but that plaintiffs were subjected to a “seizure” cognizable under the Fourth Amendment, since Smith, Plunkett and the Port Authority officers (acting under Smith and Plunk-ett’s authorization) “by means of physical force or show of authority ... restrained the liberty” of plaintiffs, Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868), and because under these circumstances, “a reasonable person would [not] feel free to decline the officers’ requests or otherwise terminate the encounter....” Id. at 436, 111 S.Ct. 2382. Nor can there be a serious question but that the plaintiffs were subject to a de facto arrest, notwithstanding the Government’s contention that the entire episode was nothing more than a Terry stop. Each of three sets of factors standing alone — not to mention collectively — sufficed to convert the seizures into de facto arrests: (1) the officers’ show of force and restraint of plaintiffs’ movement at the terminal; (2) the transportation of plaintiffs to the police station, the confinement of plaintiffs in jail cells, and the custodial interrogation of plaintiffs; and (3) the duration of plaintiffs’ confinements and interrogations. The Court considers each in turn. 1. Show of Force and Restraint of Movement at the Terminal The Second Circuit has identified the following factors to be considered in determining when a seizure ripens into a de facto arrest: the amount of force used by the police, the need for such force, and the extent to which an individual’s freedom of movement was restrained, and in particular such facts as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used. United States v. Vargas, 369 F.3d 98, 101 (2d Cir.2004) (quoting United States v. Perea, 986 F.2d 633, 645 (2d Cir.1993)) (internal quotation marks omitted). Although “[standing alone, no single factor would necessarily convert [a] detention from a Terry stop into a de facto arrest[,]” Oliveira, 23 F.3d at 646 — even if it be assumed that the initial seizures were valid Terry stops — the combination of these factors overwhelmingly compels the conclusion that plaintiffs were de facto arrested in the terminal. As Smith and Plunkett wrote in their joint incident report, “[w]hen [Farag and Elmasry] exited the aircraft, they were stopped by members of the Port Authority Police Department, separated, handcuffed, and taken to a secure area within the terminal at J.F.K. Airport.” Incident Report, Ex. C to Perry Deck, at 3. According to Farag, six plainclothes police officers with badges on their jackets seized plaintiffs at their seats, grabbed them by their arms, and escorted them off the plane. According to Elmasry, plaintiffs were met by uniformed officers in the plane’s jetway; the officers took hold of them and brought them into the terminal. As recounted by both plaintiffs, upon entering the terminal they were met by police dogs and at least ten (and as many as twenty) uniformed police officers in SWAT gear carrying shotguns; taken to separate locations about thirty-five to forty-feet apart, each accompanied by two police officers; ordered to raise their hands; and frisked. And after Farag was questioned about his past employment with the NYPD and his present employment with the Bureau of Prisons, plaintiffs were handcuffed. This show of force and police behavior is totally inconsistent with the notion of a Terry stop. In Oliveira, the Second Circuit held as a matter of law that a detention was an arrest, not a Terry stop, where, inter alia, “the plaintiffs were boxed-in by six police vehicles and outnumbered two-to-one by officers with their guns drawn or at the ready,” were forcefully ordered from their vehicles and handcuffed, and were then “placed in separate police cruisers and questioned.... ” 23 F.3d at 646 (internal citations omitted). Many aspects of the seizure in Oliveira also describe the seizures that occurred here. Accord United States v. Novak, 870 F.2d 1345, 1351-53 (7th Cir.1989) (defacto arrest occurred where two suspects “were suddenly surrounded in the airport’s enclosed walkway by ... six to nine law enforcement officers, at least one of whom drew a gun”); cf. United States v. Tehra ni, 49 F.3d 54, 61 (2d Cir.1995) (no defacto arrest where “no force was required and none was used[;][t]here were only two government agents involved and, at the point at which each defendant was asked to retire to a private office, only one agent was present”); United States v. Hernandez, 219 F.Supp.2d 556, 562 (S.D.N.Y.2002) (no de facto arrest where, inter alia, “only three DEA agents were present during the stop of the two defendants” and handcuffs were not used until after probable cause to arrest arose). The compendium of cases cited in Oliveira, in which ostensible Terry stops crossed the line and became de facto arrests under circumstances less intrusive in many respects than those of the present case, reinforces the conclusion that plaintiffs were under arrest in the terminal. See Oliveira, 23 F.3d at 646-647 (collecting cases). Notably, this is not a case where a significant show of force was justified by concerns for the immediate safety of bystanders or the officers. See United States v. Alexander, 907 F.2d 269, 272 (2d Cir.1990) (“A law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself and an obligation to ensure the safety of innocent bystanders ....” (citations omitted)). Indeed, the circuit court in Oliveira explained that “whenever this Court and other circuits have found an intrusive detention to be only a Terry stop, the police have always had a reasonable basis to believe the suspect was armed or otherwise dangerous.” 23 F.3d at 646 (citations omitted). That was not the case here: plaintiffs had to have passed through airport security in San Diego, and Smith and Plunkett wrote in their contemporaneous report that they “did not feel that [plaintiffs] posed an immediate threat....” Incident Report, Ex. C to Perry Deck, at 2. Nor are there any allegations that Farag or Elmasry threatened anyone or were uncooperative with the authorities — they readily answered all questions asked of them. In sum, as in Oliveira, “[w]hen [the Court] considers] (1) the numerous oppressive elements of the encounter between the police and the plaintiffs, (2) the limited evidence that there was a crime, and (3) the absence of any indication the plaintiffs were armed or dangerous, [the Court] must conclude, as a matter of law,” if the plaintiffs’ version of events is established at trial, “that the plaintiffs were subjected to a degree of restraint [that] was too intrusive to be classified as an investigative detention.” 23 F.3d at 647 (internal quotation marks and citation omitted). 2. The Jailings and Custodial Interrogations The Supreme Court has acknowledged that “there are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention, such as from an airport concourse to a more private area.” Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality op.) (citation omitted). However, in Royer, the Supreme Court held that a de facto arrest occurred upon transferring the suspect to an airport police interrogation room under circumstances more suggestive of unlawful conduct than the circumstances in this case: The officers ... informed [Royer] they were narcotics agents and had reason to believe that he was carrying illegal drugs. They requested him to accompany them to the police room [approximately forty feet away, adjacent to the concourse]. Royer went with them. He found himself in a small room — a large closet — equipped with a desk and two chairs. He was alone with two police officers who again told him that they thought he was carrying narcotics.... What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police ... sought to confirm their suspicions. The officers had Royer’s ticket, they had his identification, and they had seized his luggage. Royer was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained. At least as of that moment, any consensual aspects of the encounter had evaporated, and we cannot fault the Florida Court of Appeal for concluding that Terry v. Ohio and the cases following it did not justify the restraint to which Royer was then subjected. As a practical matter, Royer was under arrest. Id. at 502-03, 103 S.Ct. 1319. Here, too, plaintiffs were removed from the airline concourse to a small, enclosed space for interrogation purposes, but the enclosed space was literally a jail cell, and the location in question was not forty feet away, as in Royer, but between five and fifteen minutes away by car. The transportation and confinement was thus far more intrusive than what the Supreme Court in Royer held to constitute a de facto arrest. Indeed, the Supreme Court has squarely held that “transportation to and investigative detention at [a] station house” is not permissible incident to a Terry stop. Hayes v. Florida, 470 U.S. 811, 815, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); see also Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (holding that a de facto arrest had occurred where “[petitioner was not questioned briefly where he was found ... [but rather,] was taken ... to a police car, transported to a police station, and placed in an interrogation room.”). Thus, it has made pellucidly clear that “the line [between a Terry stop and an arrest] is crossed when the police ... forcibly remove a person from ... [a] place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Hayes, 470 U.S. at 816, 105 S.Ct. 1643 (emphasis added). And, as discussed below, plaintiffs’ station-house detention was anything but “brief[.]” Id. Consequently, even assuming the agents’ conduct in the terminal had fallen within the limits of Terry, the seizures unmistakably ripened into de facto arrests as soon as plaintiffs were transported to the station house. 3. Duration of the Detentions and Interrogations As the Supreme Court has stated, “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive” as to qualify as a mere Terry stop. United States v. Place, 462 U.S. 696, 709, 108 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see also United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (“Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.”); Glover, 957 F.2d at 1011 (“A critical factor in evaluating [whether a detention falls within the scope of Terry ] is the length of the detention”). While the detention approved in Terry itself was a momentary frisk for weapons, see 392 U.S. at 29-30, 88 S.Ct. 1868, the courts have subsequently sanctioned Terry stops of longer- — -but still limited — duration. See, e.g., Sharpe, 470 U.S. at 687, 105 S.Ct. 1568 (20 minutes); Glover, 957 F.2d at 1013 (30 minutes); United States v. Sullivan, 903 F.2d 1093, 1097-98 (7th Cir.1990) (45 minutes); United States v. Borren, 770 F.Supp. 1178, 1189-91 (E.D.Mich.1991) (70 minutes); cf. Place, 462 U.S. at 709, 103 S.Ct. 2637 (“[W]e have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.”); Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 828-29 (6th Cir.2007) (holding that three-hour stop of terrorism suspects “far exceeded” the bounds of Terry). Although “brevity” is an important consideration, it is a highly context-sensitive one. See Place, 462 U.S. at 709 n. 10, 103 S.Ct. 2637 (Under Terry, “authorities [may] graduate their responses to the demands of any particular situation.”). Accordingly, the Supreme Court has refused to adopt any rigid temporal limitation. See id. at 709, 103 S.Ct. 2637 (“[W]e decline to adopt any outside time limitation for a permissible Terry stop.... ”); Sharpe, 470 U.S. at 685, 105 S.Ct. 1568 (“Much as a ‘bright line’ rule would be desirable, ... common sense and ordinary human experience must govern over rigid criteria.”). Rather, the permissible time frame depends on “the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” Id. (citations omitted). As the Supreme Court has explained: In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Id. at 686, 105 S.Ct. 1568 (citations omitted). Thus, where there has been “delay unnecessary to the legitimate investigation of the law enforcement officers[,]” the detention cannot be justified under Terry, and it becomes a de facto arrest. Id. at 687, 105 S.Ct. 1568. Using this context-sensitive, “common sense” approach, the Supreme Court has approved under special circumstances a detention far longer than the one at issue here. See United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). In that case, the high court sanctioned a detention of over sixteen hours to allow for a suspected drug-swallower who had refused to submit to an x-ray to excrete the contraband, noting that “alimentary canal smuggling cannot be detected in the amount of time in which other illegal activity may be investigated through brief Terry-type stops.” 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). Although the court acknowledged that “[t]his length of time undoubtedly exceeds any other detention we have approved under reasonable suspicion,” Id. at 543, 105 S.Ct. 3304, it quite logically “refused to charge police with delays ... attributable to the suspect’s evasive actions.” Id. (citation omitted); accord Sharpe, 470 U.S. at 687-88, 105 S.Ct. 1568 (upholding Terry stop where, inter alia, any “delay ... was attributable almost entirely to the evasive actions of [the suspect].... ”). Here, by contrast, the Government has not met its summary-judgment burden of demonstrating that “the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes” justified the four-and-a-half hour duration of plaintiffs’ detentions. Sharpe, 470 U.S. at 685, 105 S.Ct. 1568. Other than Farag’s raising his voice in the airport terminal, plaintiffs were entirely cooperative with Smith and Plunkett’s investigation. Moreover, upon being seized, plaintiffs promptly identified themselves and answered all of the agents’ questions; Farag indicated that he was a federal employee and, according to his deposition, he provided his federal tax-identification number. The record does not suggest why the agents could not verify this information before over four hours had passed. See Place, 462 U.S. at 709, 103 S.Ct. 2637 (“[T]he ... agents knew the time of Place’s scheduled arrival ..., had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent’s Fourth Amendment interests.”); cf. United States v. Hooper, 935 F.2d 484, 496-97 (2d Cir.1991) (upholding 30-minute detention under Terry where, under the circumstances, the officers “could not have been expected to ... arrange for any [more expeditious] investigative technique”). Nor is there any suggestion why it was necessary for the agents to sequester plaintiffs for fortyfive minutes to an hour in jail cells before commencing their station-house interrogations, and why it was thereafter necessary to subject plaintiffs to prolonged interrogations-two hours for Farag and up to three hours for Elmasry. In sum, considering the record presently before the Court in respect to the show of force exhibited at the terminal, the transportation of plaintiffs to the station house for interrogation, and the duration of their detentions, the Government’s position that the plaintiffs were never arrested, and that their detentions were mere Terry stops, is untenable. The question, then, is whether, viewing the facts in the light most favorable to the plaintiffs, the Government is entitled to summary judgment that there was probable cause for the arrests. B. Was There Probable Cause for the Arrests? Probable cause to arrest exists “where the arresting officer has ‘knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’ ” Delossantos, 536 F.3d at 158 (quoting Walczyk, 496 F.3d at 156). Only “those facts available to the officer at the time of the arrest and immediately before it” may be considered. Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir.1996) (citation omitted). Moreover, “[p]robable cause is to be assessed on an objective basis[,]” Zellner, 494 F.3d at 369; thus, “[a]n arresting officer’s state of mind (except for the facts that he knows) is irrelevant....” Id. The standard is a “fluid and contextual” one, requiring “examin[ation of] the totality of the circumstances of a given arrest.” Delossantos, 536 F.3d at 159 (citations omitted). “The Supreme Court has repeatedly stated that the probable-cause standard is ‘a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Id. (quoting Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)). A court must make its evaluation “from the perspective of a reasonable police officer in light of his training and experience.” Id. (citation omitted). 1. Was There Probable Cause Based on Non-Ethnic Factors Alone? The Government contends that even if the Court does not consider that plaintiffs were Arabs and that they were at times conversing in Arabic, the other factors relied upon by the Government constitute probable cause. The Court disagrees. The Government tacks together a number of benign circumstances in the apparent belief that their numerosity will carry the day. The Court acknowledges that the Second Circuit has cautioned district courts not to “engage[] in erroneous ‘divide-and-conquer analysis’ ” by “declining to give weight to [individual] observation^] ‘that [were] by [themselves] readily susceptible to ... innocent explanation^.]’ ” Id. at 161 (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)); accord Sokolow, 490 U.S. at 9, 109 S.Ct. 1581 (“Any one of these factors is ... quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”). Yet, even viewing all of these circumstances as a whole, it cannot rationally be held that if, hypothetically, the plaintiffs were two Caucasian traveling companions speaking French, or another non-Arabic language which the agents did not understand, “a person of reasonable caution” would have believed that they were engaged in terrorist surveillance. Delossantos, 536 F.3d at 158. Principally, the Government relies on the agents’ observations of plaintiffs’ seat-changing and Elmasry’s “timing” events with his watch. But the agents acknowledged in their incident report that they knew the plaintiffs were friends; quite logically, friends would want to sit as close to each other as possible, and they would also logically return to the vicinity of their original seats when the plane was landing to retrieve their carry-on luggage. As for Elmasry looking at his watch upon takeoff, landing, and at various other times during the flight, the proportion of airline passengers who do this is probably higher than the proportion who do not. See United States v. Jones, 149 F.3d 364, 369 (5th Cir.1998) (“A factual condition which is consistent with [criminal activity] will not predicate reasonable suspicion, if that factual condition occurs even more frequently among the law abiding public.... ”). The Government also argues that El-masry’s deletion of five or six telephone numbers from his cellular phone while he waited for the plane to reach the gate “could have been interpreted as destroying evidence^]” Gov’t Br. at 16. This conclusion, however, is utter speculation; the Government’s Rule 56.1 Statement does not assert that Elmasry made any telephone calls during or after the flight, and the record gives no indication that Elmas-ry suspected he was about to be caught sufficient to imbue his acts with a suggestion of guilt. Cf. United States v. Gomez, 633 F.2d 999, 1002, 1008 (2d Cir.1980) (holding that “sounds indicating destruction of evidence” after officers announced themselves and began to kick and bang on apartment door helped generate probable cause). Most troubling, the heavy reliance which the Government places on the plaintiffs’ speaking “loudly” to each other over the heads of other passengers and otherwise drawing attention to themselves is coun-terintuitive: it simply makes no sense that if Elmasry were a terrorist on a surveillance mission, he would speak “loudly” across the aisle to his companion before takeoff, seek out and converse with the flight attendant, relocate to a seat “between two large men,” or volunteer to one of those “large men” that he was from Egypt. What terrorist engaged in surveillance activity would behave so conspicuously? One would expect that such activity would be characterized by secrecy. See Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir.1988) (“As a corollary ... of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.”); cf. United States v. Lopez, 482 F.3d 1067, 1075 (9th Cir.2007) (“[W]e find that attendant facts gathered by the police tended to dissipate, rather than support, probable cause to believe [defendant] was the attempted shooter.”). Nor could plaintiffs’ conduct in the terminal be reasonably viewed as an escalation of events that would then have given rise to probable cause. See United States v. Romain, 393 F.3d 63, 71 (1st Cir.2004) (“The propriety of an officer’s actions after an initial stop depends on ... how events unfold.”); cf. Hooper, 935 F.2d at 494-95 (noting that investigation conducted pursuant to a valid Terry stop had yielded probable cause to arrest). The Court fails to grasp the significance of Farag telling Smith that because he spoke Arabic he had been asked by the Bureau of Prisons to translate tapes, and that guns had been pointed at him as a police officer — both logical consequences of his past and present employments. Reliance on Farag’s nervousness and raised voice is also problematic. See, e.g., United States v. Ten Thousand Seven Hundred Dollars and No Cents in U.S. Currency, 258 F.3d 215, 226-27 (3d Cir.2001) (“[C]laimants’ apparent nervousness is of minimal probative value, given that many, if not most, individuals can become nervous or agitated when detained by police officers.” (citation omitted)); United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir.1998) (“[I]t is common for most people to exhibit signs of nervousness when confronted by a law enforcement officer whether or not the person is currently engaged in criminal activity.”) (internal quotation marks and citation omitted); United States v. Crump, 62 F.Supp.2d 560, 565 (D.Conn.1999) (“The fact that the defendant was acting ‘a little nervous’ has limited significance since most citizens, whether innocent or guilty, are likely to exhibit some signs of nervousness when confronted by the police.” (citation omitted)). Moreover, Farag’s “nervous” response to an unlawful show of force could not retroactively justify plaintiffs’ arrests. See, e.g., United States v. Alvarez-Manzo, No. 8:07CR432, 2008 WL 2704163, at *8 (D.Neb. July 3, 2008) (“While the government argues that the arrest was supported by the defendant’s nervous behavior, this behavior occurred after he was illegally seized.... ”). In sum, viewed in the light most favorable to plaintiffs, the non-ethnic factors cited by the Government do not constitute probable cause. 2. Would Consideration of Plaintiffs’ Ethnicity Warrant a Finding of Probable Cause? Allowing consideration of the plaintiffs’ ethnicity and their use of Arabic would still not warrant a finding, in the context of the defendants’ summary-judgment motion, that there was probable cause to arrest them. In other words, if the plaintiffs’ view of events holds up at trial, their conduct was so benign that the ethnicity factor — even if it could be considered — would not change the outcome. Nonetheless, the Court will address the ethnicity issue since the Government, given the importance it ascribes to the issue, would otherwise undoubtedly raise it at trial; moreover, the issue would probably surface if Smith and Plunkett were to take an interlocutory appeal from the Court’s denial of that aspect of their motion seeking qualified immunity. See In re World Trade Center Disaster Site Litig., 521 F.3d 169, 180 (2d Cir.2008) (“[A] district court’s denial of immunity from suit is an appeal-able collateral order ... ‘to the extent that it turns on an issue of law.’ ”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). 3. Can Plaintiffs’ Arab Ethnicity Serve as a Probable Cause Factor? The Government argues that plaintiffs’ Arab ethnicity and use of the Arabic language are relevant factors in the probable-cause, as well as the reasonable-suspicion, calculus because “all of the persons who participated in the 9/11 terrorist attacks were Middle Eastern males[,]” Tr. of Oral Argument, July 18, 2008, at 18, and “the United States continues to face a very real threat of domestic terrorism from Islamic terrorists.” Gov’t Br. at 17. The Government’s position has some superficial appeal. After all, probable cause, and undoubtedly reasonable suspicion as well, is, once again, “a practical, nontechnical conception that deals with the factual and practical considerations of everyday life[,]’ ” Delossantos, 536 F.3d at 159 (internal quotation marks and citation omitted), and what American would not acknowledge that everyday life has changed in myriad ways, both great and small, since 9/11? Indeed, earlier this fall, the Second Circuit upheld a government program “that singled out male immigrants from two dozen predominantly Arab and Muslim countries for accelerated deportation after the Sept. 11, 2001, terrorist attacks[,]” Mark Hamblett, Circuit Upholds Post-9/11 Effort That Singled Out Muslim Men, N.Y.L.J., Sept. 25, 2008 at 1, finding it a “plainly rational attempt to enhance national security.” Rajah v. Mukasey, 544 F.3d 427, 2008 WL 4350021, at *5 (2d Cir. Sept.24, 2008). Rajah, however, did not deal with ethnicity in the context of probable cause or reasonable suspicion. Indeed, the Government recognizes that “[tjhere is no single precedent that resolves this case,” Tr. of Oral Argument, July 18, 2008, at 17, which presumably accounts for its view of the case as one of first impression. Nevertheless, the interplay between race and the Fourth Amendment is not a recent phenomenon; courts and commentators have long struggled with the issue of whether and to what extent race can be a relevant consideration in the decision to detain an individual. See, e.g., Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L.Rev. 651 (2002); Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L.Rev. 956 (1999); Tracey Maclin, Race and the Fourth Amendment, 51 Vanderbilt L.Rev. 333 (1998); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 237 (1983). That legal backdrop obviously bears on the Court’s analysis here. At the outset, it should be understood that the Fourth Amendment — unlike the Equal Protection Clause — imposes no a priori restriction on race-based governmental action. As the Supreme Court noted in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996): [T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-caus