Temple professor continues long legal journey to sue FBI for wrongful prosecution

A Temple University physicist is suing the FBI for violating his constitutional rights.

Back in 2015, the FBI arrested professor Xiaoxing Xi at gunpoint and took him away from his home in handcuffs. They accused him of selling trade secrets to China. The FBI had made some basic errors, and the case collapsed. But Xi and his legal team, which includes lawyers from the American Civil Liberties Union, say they want to hold the government accountable for the wrongful prosecution. They brought the case before the U.S. Court of Appeals for the Third Circuit in Philadelphia on Wednesday, after a lower court dismissed the case last year.

Xi’s team has a very high legal hurdle to clear because recent Supreme Court decisions make it very difficult to sue federal officials for damages for violating constitutional rights.

In front of a packed audience in court, three federal judges questioned Xi’s legal team over two big questions: whether Xi has a right to sue the FBI agent for damages over a constitutional rights violation; and whether the FBI agent was merely using his judgment when he decided to arrest Xi and should therefore be protected from lawsuits.

However, the judges also had tough questions for the government lawyers, including: how could the government move to dismiss a case when the other side is alleging that federal agents ignored evidence proving there was no crime?

Xi’s legal team expects the court to take at least a few months before making a decision. Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project and part of Xi’s team, said that at this stage, all they ask is to be able to gather more information like testimony from the FBI agents involved, and take the case to trial.

“The rule in court at this stage of the case is that the allegations have to be plausible, but you don’t have to put everything into the case,” Toomey said. “ And in fact, the assumption is that as the case goes forward, the parties will get more information … and be able to review documents that show what exactly was being written down at the time that this was unfolding. And that can shed a much brighter light on what occurred.”

“Although this case has been going on for a number of years, as a legal matter, it’s at the very beginning.”

This case comes after U.S. law enforcement officials made several wrongful arrests of Chinese or Chinese American scientists in the past few years. Scientists say this not only stymies the work of those researchers, but also sends a message that the U.S. does not welcome scientists from other countries. The FBI declined to comment. There have been arrests that ended in convictions as well, but when Xi testified to Congress last year, he questioned why federal officials would spend taxpayer money going after innocent scientists instead of real spies.

Xi said he had a big research program before he was arrested, but he was suspended as interim chair of the physics department because of the arrest and indictment, and his work continues to suffer. He said now there are just two people in his research group, working on one federal grant.

“Even that one federal grant … I’m doing that scared,” he said. “One of the reasons that my program has shrunk so much is the fear.”

Even though his case has taken years to get to this point, he said he is still driven to pursue it.

“It’s not because the agent made a mistake or misunderstood something. He knew he was wrong. He knew I was innocent, and he went ahead.”

“We’re determined to fight to the end, because we have to hold the government accountable when they violate the rights of innocent people. And next time, when they are trying to do something like that, they better think twice about the consequences.”

Xi pointed out he is not the only Chinese scientist in the U.S. to be treated this way by federal authorities.

Gang Chen, a professor of mechanical engineering at the Massachusetts Institute of Technology, was also arrested in January 2021 and charged with lying on his grant applications and not disclosing Chinese affiliations. Other researchers quickly rallied to support Chen, and the government later dismissed the charges, but the damage was done, Chen said.

“I’m no longer the same as I was before,” he said. “I (am) still living in fear. So basically for me, I’m trying to find my new equilibrium.”

He said that he had a vibrant research group before the arrest, but had to start from nothing after he could return to research. He also said that now he does not feel comfortable applying for government funding. That is a big deal because the U.S. Department of Energy is the largest funder of basic research in the physical sciences in the country.

“This wrongful prosecution caused harm … not just to myself and my family, but to the entire scientific community,” Chen said.

Chen said he knew Xi before Xi was arrested, respects his research, and admires his courage. However, he also said the government never admits its mistakes, and pointed to an assistant U.S Attorney who was recently nominated to become a U.S. attorney after wrongfully accusing a University of Tennessee professor of being a spy.

Xi’s arrest happened in 2015, but many of these cases happened under the Trump Administration’s China Initiative, which was supposed to counter Chinese theft of U.S. intellectual property. Civil rights groups and scientists say it created a climate of fear among Chinese American scientists. The Justice Department scrapped the program earlier in 2022.

Andrea Liu, a professor of physics at the University of Pennsylvania, recalled a 2019 meeting the FBI held for leaders of the American Physical Society, a nonprofit group that represents physicists.

“The FBI representative compared the dangers of working with Chinese graduate students, he said, ‘it’s like a cancer … you might only see the malignant effects years later.’ And that really made me angry,” she said.

A few years before that, Liu had almost died of an autoimmune disorder, a disorder where a person’s own immune system attacks healthy cells by mistake. Her response to the FBI was that their overzealous prosecutions “was such a huge overreaction that it has caused the terrible autoimmune disease in U.S. science and has really, really harmed our ability to do great science and harmed our standing in the world.”

The American Physical Society surveyed their members last year, and found that at least 40% of international graduate students and early career professionals said they are less likely to stay in the U.S. in the long term, because of the government’s research security policies.

“Every misstep like this where … somebody is wrongfully prosecuted, is highly publicized and students abroad see it,” Liu said. “It makes scientists not want to come here to do their best work.”

However, Xi and his legal team face recent Supreme Court precedents that make it exceptionally hard to sue federal officials for damages for violations of constitutional rights, said Shirin Sinnar, a law professor at Stanford University who specializes in civil rights and national security.

She explained that back in the 1970s, the Supreme Court established that people can sue a federal agent for violating constitutional rights in a case involving an unlawful search and seizure under the Fourth Amendment, but has pulled that back in recent years.

One important milestone began developing in 2002, when federal officials arrested a lot of Middle Eastern and South Asian men, and held them for months in a maximum security prison where guards would beat them. In 2017, the Supreme Court ruled these people could not sue the federal officials over this because they were really challenging national security policy decisions, and should take it up with Congress. Sinnar said that essentially meant the people have no legal remedy, considering how difficult it is to get any legislation through Congress.

Most recently, this June, the Supreme Court ruled that a U.S. citizen in Washington State could not sue Border Patrol agents for alleged constitutional violations because the case involved the Border Patrol, and was therefore a matter of enforcing immigration law.

“The court does say, well, just broadly, anything to do with the border somehow has something to do with national security. And when you have that kind of really broad conception of national security, it means that … a lot of claims for misconduct end up getting stifled,” Sinnar said.

“We might think in general, well, if you’ve got a constitutional right to something, of course you can enforce that right. Of course, you should be able to go to court and, you know, sue someone for misconduct.”

“But in fact … it is extremely difficult to get accountability, especially against federal officials … And many people who have really strong claims that government actors violated their rights end up finding out that they can’t even get through the courthouse door.”

When Xi’s legal team presented their claims to a lower federal court last year, they also argued that they should be able to sue the FBI for invasion of privacy, emotional distress, and loss of reputation. Sinnar said this line of inquiry also involves unsettled questions. On the one hand, she said courts have said that federal agents should be allowed to make judgments as part of their jobs and should not be sued for that. But on the other hand, other courts have also found that this exception cannot apply when it comes to constitutional violations. The Supreme Court has yet to address this.

Scientists just want to see the FBI held accountable for their actions in this and the other wrongful prosecutions, said Andrea Liu at Penn.

“If that happened in this case, that would send a really strong message all over the world to say that: yes … people can be wrongfully prosecuted, but the government can be held accountable, which is not true in many parts of the world.”