Third Circuit Says TSA Officers Can Be Sued Directly For Abuses And Rights Violations

from the trimming-the-edges-of-sovereign-immunity dept

Good news has arrived for the long, long, oh so very long list of travelers who’ve had their rights abused by TSA agents. Reversing its own decision, the full panel of Third Circuit Appeals Court judges has removed TSA agents from “can’t be sued” list.

Originally, the court had held that Transportation Security Officers (TSOs) were immune from civil lawsuits under the Federal Tort Claims Act. For the most part, federal government employees can’t be sued directly. Previously, this covered TSA employees, whom the Third Circuit claimed were not “investigative or law enforcement officers” — one of the few exemptions from this blanket immunity.

That ended Nadine Pellegrino’s lawsuit against the TSA agents who behaved abusively during her “extended screening.” Here’s a description of those events from the Third Circuit’s reversal:

As Pellegrino passed through the security checkpoint, she was randomly selected for additional screening. A TSO began examining her bags, but she stopped him and requested a more discreet screening. In a private room, several TSOs combed through Pellegrino’s luggage, papers, and other effects. One allegedly counted her coins and currency, examined her cell phone data, read the front and back of her membership and credit cards, and opened and smelled her cosmetics, mints, and hand sanitizer. Per Pellegrino, the TSO also spilled the contents of several containers and was so rough with her belongings that her jewelry and eyeglasses were damaged. Frustrated, she told the TSOs that she would report their conduct to a supervisor.

The screening ended, but the TSOs’ alleged torment did not. Pellegrino was left to clean up the mess created by the search, a task that took several trips to and from the screening room. As she was repacking her first bag, one of the TSOs claimed that Pellegrino struck her with it. On a trip to retrieve another bag, another TSO allegedly blocked Pellegrino’s access to it, forcing her to crawl under a table to reach it. When she did so, the table tipped over, and the TSO claimed Pellegrino struck her in the leg while she was collecting the bag. Pellegrino denies striking either TSO and alleges she heard both say to one another, “[Y]ou saw her hit me, didn’t you?”

It got worse from there. The TSOs decided to respond with a complaint of their own. They took a bunch of bullshit allegations to local prosecutors, which resulted in Pellegrino being charged with ten (!) criminal acts, including assault, making terroristic threats (!!), and “possession of an instrument of crime” (her luggage) (!!!).

All of those charges eventually vanished when the TSA failed to produce a recording of the extending screening and a TSO gave contradictory testimony in court.

This decision [PDF] revives Pellegrino’s lawsuit. The court says TSOs are authorized to search people and their belongings. This moves them into “investigative/law enforcement” territory and out from underneath the immunity blanket.

The court finds that TSOs meet every requirement needed to become the sort of federal employee that can be sued directly. No more sovereign immunity for these agents, who are officers “empowered by law to execute searches.”

To repeat, the complete proviso definition for an “investigative or law enforcement officer” is “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h). By its plain terms, the phrase “empowered by law” narrows the scope of “officer[s]” covered from the set of all “officer[s] of the United States” to the subset of those with the authority to, among other things, “execute searches.”

Turning, then, to the statutory authority of TSOs, they are empowered by law to conduct “the screening of all passengers and property.” 49 U.S.C. § 44901(a). Screening, in turn, is defined in part as a “physical examination,” including a “physical search.” Id. § 44901(g)(4) (regarding screening of luggage). Hence TSOs are “empowered by law” within the meaning of the proviso.

As to the “searches” part of the provision:

TSO screenings are “searches” (i) as a matter of ordinary meaning, (ii) under the Fourth Amendment, and (iii) under the definition provided in Terry v. Ohio, 392 U.S. 1 (1968). Attempts to distinguish (iv) between administrative and criminal “searches” are divorced from the plain text, and any distinction, if one must be made, should account for (v) the fact that TSA searches extend to the general public and involve examinations of an individual’s physical person and her property.

The government tried to argue that passengers cannot sue over alleged Fourth Amendment violations because they trade their rights for the privilege of boarding airplanes. The court says this isn’t correct and it certainly isn’t a voluntary exchange.

The Government does not dispute that holding. Instead, it contends that consent by passengers cancels the Fourth Amendment’s effect. But the presence or absence of consent does not determine whether a search has occurred for purposes of the Fourth Amendment. […] In any event, TSO screenings are not consensual. As noted, per TSA regulations any individual who does not consent to a “search or inspection” may not board a flight.

The government also tried to save TSOs from lawsuits by claiming these highly-intrusive airport searches were merely “administrative,” the groin-grabbing equivalent of grabbing regulatory files from a local business. The court not only disagrees, but dunks on the government’s terrible argument.

To begin, TSO screenings often involve invasive examinations of the physical person. As even the panel majority in this case acknowledged, TSA searches are “rigorous and intimate for individuals.” Pellegrino, 896 F.3d at 230. This sets them apart from other administrative searches that involve only inspections of property or the environment.


Next, the risk of abuse is greater for TSO screenings than for most other administrative searches. Because TSA searches affect the public directly, the potential for widespread harm is elevated. This potential for abuse in borne out by Pellegrino’s own experience. There is a reason that FDA meat inspectors do not generate headlines about sexual assault and other intimate violations.

The final word on TSOs and their immunity? They no longer have any.

Words matter. This core tenet of statutory interpretation channels our conclusion today: TSOs are “investigative or law enforcement officers” as defined in the Tort Claims Act at 28 U.S.C. § 2680(h). They are “officer[s] of the United States” by dint of their title, badge, and authority. They are “empowered by law to execute searches” because, by statutory command and implementing regulation, they may physically examine passengers and the property they bring with them to airports. And the TSOs’ searches are “for violations of Federal law” given that their inspections are for items that federal law bans on aircraft (often with criminal consequences).

If security officers violate rights (they do) and damage people’s property (they do), then they should be held accountable for their actions. The TSA certainly doesn’t seem interested in doing this, so it’s left up to the courts to handle it. In this circuit, TSOs can be sued, but this doesn’t change anything for those residing outside of this jurisdiction. If the government decides to challenge this decision, it may open itself up to a Supreme Court declaration that gives the entire nation the ability to directly sue TSA security officers. It will be interesting to see what it chooses to do, given the potential downside for its employees.

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Comments on “Third Circuit Says TSA Officers Can Be Sued Directly For Abuses And Rights Violations”

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Wendy Cockcroft (profile) says:

Re: Re: taxes

I doubt it was consensual — "And they let you" might well mean "And they freeze in terror because I’m a powerful celebrity and who are they? No one will do any more to help them than they did for Epstein’s victims. Remember how he paraded them all over MIT’s Media Lab? Those girls looked so scared, members of staff kept asking them if they were okay. And nobody did anything. He got clean away with it for years. And so did I."

Women freeze when they feel threatened, it’s a natural reaction to protect themselves against the injuries they might receive if they fight back. It’s so deeply embedded in us that even female soldiers have been known to freeze when men go all creepy on them.

We can’t help it. And the younger and more frightened they are, the more likely they are to freeze. Social conditioning doesn’t help; we’re supposed to be quiet and not make a fuss. Those of us more used to lashing out at nuisances are less likely to freeze but we end up being called troublemakers — or face ostracism for rocking the boat. This is what #MeToo is all about.

Wendy Cockcroft (profile) says:

Re: Re: Re: taxes

Reprisals from abusers can literally wreck your life and career:

This is why we freeze. If you do fight back or speak out, chances are you’ll be screwed. If you don’t, you’re a whore. We can’t win.

Wendy Cockcroft (profile) says:

Re: Re: Re:3 taxes

And how, pray tell, do I do that?

I dress modestly, wear no makeup, scrape my hair into a bun, and don’t flirt.

I’m lucky I’ve mostly worked in civilised places where my male colleagues behave themselves so I don’t have to worry about speaking out as there’s no need to.

My #MeToo experiences can, for the most part, be labelled "creepy behaviour." I’ve not had to deal with such crap for the last 15 years or so. I guess being almost 50 years old helps.

Jason says:

As noted, per TSA regulations any individual who does not consent to a “search or inspection” may not board a flight.

More than that, isn’t it true that "declining" consent to a search is in itself considered cause for investigation or arrest? I’m sure I’ve read of instances where changing your mind and trying to leave the airport once the security process is underway would get you in trouble as well. I can’t see how they can claim anything about it is voluntary when those are the ground rules.

How sad that it’s taken this long to come up with a ruling that should be so blatantly obvious.

Anonymous Coward says:

Re: Can't violate

You don’t have a right to personal privacy within 100 miles of the nearest TSA agent.

With that kind of statement it’s near to impossible to figure out whether you are being sarcastic or a member of the current administration (I’d say "Trump administration" but the main difference to "Obama administration" is that the previous president did not openly cheer such behavior and issued pardons for it, not that the officers behaved significantly better).

JoeCool (profile) says:


It got worse from there. The TSOs decided to respond with a complaint of their own. They took a bunch of bullshit allegations to local prosecutors, which resulted in Pellegrino being charged with ten (!) criminal acts, including assault, making terroristic threats (!!), and "possession of an instrument of crime" (her luggage) (!!!).

She’s lucky she was a 69 year-old white female or they’d have probably added "assaulting an officer’s knuckles with her face" to the list.

Bobvious says:

Re: Lucky

Your Honour,

the prisoner struck my rapidly moving closed fist with his stationary face, then continued the attack by assaulting me with blood from his nose. After defending myself from his ribcage impacting upon my fist, he compounded the assault by vomiting on me, with malice aforethought. He then deliberately slumped forward in his electric wheelchair and engaged the joystick so that the wheels would run over my foot.

The defense counsel expects this court to believe that the prisoner’s "refusal" to identify themselves was due to a tracheotomy, which only became apparent to this department after the post mortem.

Anonymous Coward says:

Does it bother anyone that 1 department (DHS) completely controls entrance to and exit from THE USA? (Walls work both ways) THE DHS has been working towards total lockdown of the borders, taking over control of the government is their goal. There will be a coup attempt within the next 15 years.
The constitution will be suspended and a new (loaded) constitutional committee will be called.

Hail Hydra!

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