TSA Kangaroo Court Rubber Stamps TSA Fining Guy Who Stripped Naked, Completely Dismissing Court Ruling Finding It Legal

from the well-of-course dept

A couple years ago, we wrote about a guy named John Brennan (who, we’re pretty damn sure is not the John Brennan who is now director of the CIA) who decided to strip naked at a TSA screening area in an airport to protest the screening process. As we noted, a federal judge acquitted Brennan on First Amendment grounds, noting that he was engaged in a public protest, and that the nudity was a form of protected expression, not subject to indecent exposure laws.

No matter, apparently, for the TSA, who just went ahead and fined Brennan anyway claiming Brennan “interfered with screening personnel in the performance of their duties” (a violation of this rather broad law). As Lowering the Bar notes, this charge is bogus — and is basically the same thing as when police arrest people filming them under similar charges:

[The TSA] fined him $1,000 for doing this, claiming he had “interfered” with screening operations when he took off all his clothes. As I discussed here, and then again here, that’s the same bullshit argument police use when they arrest people for filming them?we had to come over there and stop you from doing something you’re constitutionally entitled to do, and so you “interfered” with us. But that logic makes perfect sense to the TSA, and in particular to the administrative-law judge (a TSA employee) who upheld the penalty (reduced to $500) in April. Brennan appealed.

You’ll never guess what happened next — or, wait, actually you will:

Because this is an agency proceeding, the initial appeal is still within the agency, in this case to the deputy administrator. And as I mentioned above, because I didn’t want you to be on pins and needles wondering what happened, he affirmed the ruling. The final order (PDF via PapersPlease.org) is again based entirely on the “no, you interfered with us” argument (about which I feel as described above). This also has the benefit (for the TSA) of making the law irrelevant. In fact, the deputy administrator says in his opinion, “I agree with TSA”?of which he is the deputy administrator?”that Respondent’s arguments regarding the legality of the nudity are not relevant.” Well, that’s handy.

Handy indeed to be able to ignore a federal court saying that the activity was constitutionally-protected free speech.

Oh, and it gets more ridiculous. Apparently, the TSA review of the matter said the fine is appropriate because the whole three minutes that things were delayed was horrible for TSA efficiency:

By the way, he admits in his opinion that the checkpoint was closed “for approximately three minutes” as a result of the incident, yet affirms the finding that because of this, the agents “were not able to conduct screening in an efficient manner on other passengers present at the checkpoint.” So the TSA is claiming here, with a straight face, not only that it screens passengers “in an efficient manner” to begin with but that it is so efficient that punishment is justified if you delay it by three minutes.

I don’t know about you, but I’ve been pointlessly delayed by much more than three minutes by the TSA approximately EVERY TIME I HAVE FLOWN DURING THE PAST DECADE, so I would describe that claim as farcical.

I’m still wondering how any of this is making us safer. I’m guessing I’ll have to keep waiting on that one…

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Comments on “TSA Kangaroo Court Rubber Stamps TSA Fining Guy Who Stripped Naked, Completely Dismissing Court Ruling Finding It Legal”

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55 Comments
Anonymous Coward says:

Re: Re:

[…] I for one wouldn’t like to go to the airports and see other people man/womanhoods visible all over the place. I think the TSA is actually doing a good job to provide a dong-free environment in our airports. […]

I think only American neo-Puritans like yourself (and Whatever) would consider exposed “dong[s]” to be more offensive than the routine violation of travelers’ rights under the Fourth Amendment. Besides, the heads of cocks are already plainly visible — protruding from the blue shirts worn by your Bill of Rights-burning heroes in the TSA.

[…] Think of the children that go to the airports!

I’m thinking that they’re going to grow up without an appreciation or expectation of privacy under the Fourth Amendment, thanks in part to your precious blue-shirted authoritarian thugs and the prevalent police/surveillance-state that they’re a part of. Further, at least half of them already see and/or handle cocks (belonging to themselves) on a regular basis — seeing a cock that’s not attached to themselves represents no great threat, and as the aforementioned federal judge has wisely ruled, hanging out in the breeze represents protected speech.

ZOG SUCKS (user link) says:

Re: It will not matter. Right now the Circuit Circus Courts afferm magistrate decisions that are against the individual over 95%

The rate is 95%. In the USA court system itself the conviction rate is over 90% against individuals. WHen the court investigates it’s own they get off over 98% of the time. If you flip 10 dimes they will come up on heads 50% tails 50% the more you flip them the closer to 50% it is. If the coins were always TEN DIMES or even NINE DIMES HEADS EVERY TIME you would KNOW the coins were two headed or the game rigged. The USA courts are rigged and the USA Gvt has outlived it’s usefulness. SEE how they stop EBOLA or Drugs or black crime or….

nasch (profile) says:

Re: Re: It will not matter. Right now the Circuit Circus Courts afferm magistrate decisions that are against the individual over 95%

In the USA court system itself the conviction rate is over 90% against individuals.

Even if true, that is not necessarily a problem. That could simply indicate that prosecutors are good at choosing which cases to pursue. I’m not saying there are no issues with the justice system, only that that particular number doesn’t prove anything by itself.

Someone'sGottaSayIt says:

TSA

This is my little part in educating the TSA: Everytime I go through security, I “opt out”. They are generally fairly nice about it and it usually only takes just a couple of minutes extra to go through the pat down, however, I use these minutes to have a conversation with the TSA agent executing the pat down. Funny thing is, BY FAR, most of them agree this is a ridiculous process and just claim “don’t blame me I’m just doing my job.” One thing I always do is get their attention, look them straight in the eye, and say “do me a favor will you: I want you to go home tonight and read the fourth amendment to the constitution, and think seriously about how that applies to your job.” I like to think maybe I have made at least one of them think twice about their job…Of course, I could just be deluding myself…

Anonymous Coward says:

Re: TSA

The tragic problem with the fourth amendment is that it was completely gutted by including the word “unreasonable” as a clause for applicability.

There’s no getting around it unfortunately: that word renders the entire amendment null and void when wielded by the justice system. This has been proven time and time again over the years, and any protections it does actually provide at this date and time will be whittled to nothing before all is said and done.

“Unreasonable” is purely subjective no matter how you slice it, and in time nothing will be considered so.

Greevar (profile) says:

Re: Re: TSA

It should be changed to “warrant-less” or “without probable cause” (probable cause being clear and present threats to public safety, such as a crime in progress, reckless behavior, or visible contraband), adding consequences if an officer performs a search that violates such requirements. Evidence of this could be provided by way of mandatory video and audio recording devices on their person while in their official capacity. If no probable cause can be found, the officer will be subject to penalties to their wages or forced into unpaid leaves of absence. Repeated incidents will be grounds for an internal affairs investigation and the potential termination of the violating officer/agent.

I call that a good start.

The Wanderer (profile) says:

Re: Re: Re: TSA

Actually, as I understand matters, “probable cause” in the original context appears to have referred to “probable cause to believe that the thing being searched for is in the place to be searched” – where “probable” is contrasted with “plausible” or “possible” or even “improbable”, any of which would leave much more room for random or punitive searches.

It had nothing to do with “threats to public safety” or “crime in progress” or similar – only with the likelihood, and (by way of determining that) believability, of the idea that the search being carried out would find the thing being searched for. If you can’t convince the person whose responsibility it is to make such judgments that it’s probable that the thing is where you say it is, you don’t get to search for it there.

That gets lost to some degree under the common-parlance jargon use of the phrase, but I believe it’s still of critical importance in understanding how the idea of probable cause should be applied.

That One Guy (profile) says:

Re: Re: Re: TSA

Mostly good, except for this part:

Repeated incidents will be grounds for an internal affairs investigation

The police should never be the ones in charge of investigating themselves, that has ‘conflict of interest’ written all over it. Such investigations should instead always be carried out by an independent third party, one that doesn’t answer to the police, but which does have authority to order them to cooperate, and punish them if they refuse to do so.

Anonymous Coward says:

Re: Re: Re:4 TSA

This is a perfect example of how you all don’t know how to READ!!!!

The Word “Unreasonable” in the forth does not provide EXCEPTION! It specifically states that ANY SEARCH OR SEIZURE that does not have a WARRANT is UNREASONABLE!

Read it again and use your noggin… now you know how ignorant the vast Legal Machine is! WAKE UP!

That One Guy (profile) says:

Re: Re: Re:5 TSA

… okay, I’m confused. What comment are you replying to? If it’s mine, please point out where I’ve mentioned anything regarding the fourth amendment on this article, because I’m not seeing it.

I’m pointing out that due to conflict of interest, police should never be involved in investigating their own actions, that’s it. Nothing more, nothing less.

Anonymous Coward says:

Re: Re: TSA

THats one take I suppose, it could also possibly make that employee to advocate from within to bring about change.

In reality, I suspect most of them really don’t give a crap one way or the other. The vast majority likely only care about three things:
1. What time their shift starts
2. What time their shift ends
3. What day they get paid.

The Wanderer (profile) says:

Re: Re: TSA

On the one hand, yes, having the job be done only by people who don’t care about the negative aspects of what they’re doing would be a bad thing.

On the other hand, it would mean that people could despise, ostracise, and otherwise socially abuse TSA employees with a clear conscience – thereby giving the remaining employees a different type of disincentive to continue working there.

I think there’s a case to be made that that could be worth the trade-off. Although there is still the difficulty that there’s no way to be certain that the state where only “the bad people” still work there has yet been achieved, so it wouldn’t be possible to be entirely certain about that clarity of conscience after all.

LduN (profile) says:

I wish

I wish I had the power to rule on criminal activities, and have my position be affirmed by myself, therefore voiding any loaw I may have broken.

“No officer, I do not think I was speeding, you got it wrong.” ::loks left, looks right:: “Upon further review your complaints are noted, but I reaffirm the prior judgment stating I was not speeding. If you continue to interfere with me getting home I will fine you approximately 20,000$ an hour for the delay(s) you have given me”

Anonymous Coward says:

surely the ruling from the Federal Court has more standing than from the TSA Court? and i appreciate that the TSA court has already been appealed, can he not go above that particular one and go to a legitimate court to be ruled properly? this is obviously ridiculous behavior from the TSA and they need to be reminded of who issues legal findings

MarcAnthony (profile) says:

Yet another "court" that shouldn't exist and doesn't know its place

When the legality of the law is not relevant, you have to wonder with what kind of a sham court it is with which you’re dealing, and this absurd decision belies the fact that federal trumps administrative. I looked up exactly what an administrative court is supposed to be; their role should be to ascertain that official public policy acts “are consistent with the law.” No consistency is to be had here.

LawDog says:

Some clarity would be nice

This article didn’t make sense to me at first. The author should take more time to clarify the following…
1. The initial case was a CRIMINAL (much higher bar to find someone guilty) case decided in COUNTY court. No federal involvement. He was charged with indecent exposure by county officers.
2. The TSA case is a CIVIL case in FEDERAL court. Brennan is basically being sued for damages by the TSA alleging that he caused injury to TSA and the American taxpayers.

The differences between a criminal case and a civil case are huge. The differences between county law and federal regulations are huge. I agree with the sentiment in the article (TSA overreach)… but I feel the author does a disservice to readers and the libertarian cause in general by dumbing it down.

LawDog says:

Some clarity would be nice

This article didn’t make sense to me at first. The author should take more time to clarify the following…
1. The initial case was a CRIMINAL (much higher bar to find someone guilty) case decided in COUNTY court. No federal involvement. He was charged with indecent exposure by county officers.
2. The TSA case is a CIVIL case in FEDERAL court. Brennan is basically being sued for damages by the TSA alleging that he caused injury to TSA and the American taxpayers.

The differences between a criminal case and a civil case are huge. The differences between county law and federal regulations are huge. I agree with the sentiment in the article (TSA overreach)… but I feel the author does a disservice to readers and the libertarian cause in general by dumbing it down.

John Brennan (user link) says:

9th Circuit Court is Next

This is John Brennan, the TSA protestor. Lively discussion here on techdirt.

There is a difference between the criminal charges (of which I was acquitted) and the on-going civil case. However, the two are related in the eyes of the law, just not in the eyes of the TSA, who are unaccountable and self-absorbed.
As Kevin at Lowering the Bar notes, whatever the TSAs rules are, above all, they can not be unconstitutional. TSA (and DHS) has operating with impunity.
I plan to appeal this administrative decision to the US Federal Court, likely the 9th Circuit Court. It’s in this court that, after two and a half years of administrivia, the connection between TSA and the US Constitution can be examined. Of course, I hope to prevail.
I *do* need to get a lawyer. I’m talking to a couple of sources right now. And I do need to raise money for legal expenses. That will be kicking off soon.

To get more information, go to http://www.nakedamericanhero.com, which will redirect you to my facebook fan page.
You can also follow me on Twitter or Tumblr.

Mark Noo (profile) says:

the agents “were not able to conduct screening in an efficient manner on other passengers present at the checkpoint.

If a man (hopefully seductively)doffing his clothing for them to inspect interferes with their ability to do their jobs imagine what a person with a honest-to-god weapon would do to them.

All of the agency rulings are subject to judicial review after all appeal avenues within the agency are exhausted. My guess is they will have to prove to the court that 3 minutes of searching a person is a lot of time compared to other searches to make this fine stick.
Maybe Eric Holder will argue that the TSA would have used that time better to protect “America’s children”.

The TSA says:

Terrorists

We have NEVER caught a terrorist. We have NEVER stopped terrorism. We just say we did and we can’t tell you about it. It is a secret and stuff. Meanwhile we have had thousands of TSA flunkies steal millions of dollars of your property. Some of us have been caught and even fired and jailed but it is almost impossible to be caught. So keep complaining and I will finger rape your child while I steal your jewelery and cash laughing all the while because you can’t do a damn thing about it.

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