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

Legal Issues

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.

Filed Under: 3rd circuit, abuse, federal tort claims act, nadine pellegrino, screening, searches, security theater, standing, tsa, tso