Ninth Circuit Latest Appeals Court To Say TSA Agents Can Be Sued For Constitutional Violations

Legal Issues

from the hey-TSA-peeps:-you-brought-this-on-yourselves dept

We’re getting a bit more clarity and commonsense applied to lawsuits involving constitutional violations by TSA agents.

As we’re all painfully aware, to fly is to spend some time in often uncomfortably close proximity to a TSA officer. That’s the bargain we make when we choose to board a plane. These searches are far from consensual. And these searches are, far too often, extremely intrusive.

And yet, despite being given certain law enforcement powers (including the ability to restrict someone’s freedom by disrupting their travel plans), federal courts treat TSA officers (TSOs in the courts’ parlance) as regular government employees who sit beyond the reach of the Federal Tort Claims Act.

That has changed in (extremely) recent years. A lawsuit filed by a passenger ended up in the Third Circuit Appeals Court. Twice. The passenger was frisked, handcuffed, and arrested. Her drivers license was confiscated. She was detained for 18 hours and released on $400 bond after TSA agents claimed she struck one of them with her carry-on bag. Somehow that resulted in a local prosecutor attempting to try her on eight criminal charges, including “possession of an instrument of a crime” — referring to the bag she allegedly struck a TSA agent with.

On the first pass, the Third Circuit decided TSA officers weren’t law enforcement officers, even though they are very much responsible for enforcing travel-related laws… like preventing contraband from being brought on board and, opportunistically, searching luggage to make sure no one is carrying too much cash.

Even worse, it bought into this bullshit argument the government made:

The Government […] contends TSA screenings are not searches under § 2680(h)’s proviso because they are consensual and limited in nature.

Whoa. Let’s not get carried away. Buying a plane ticket may be voluntary but being patted down by an agent is anything but voluntary. If a TSA officer decides you need more attention paid to you, more attention will be paid. And there’s no other option. You can decide you’d rather not fly than subject yourself to a physical groping and a digital shakedown of your devices but that’s simply not going to prevent these things from happening. Instead, you’re likely to be detained by the TSA and arrested by law enforcement for attempting to flee the scene of whatever crime the TSA can imagine.

And, as the dissent pointed out then, the government can let all sorts of employees off the litigation hook simply by declaring in court they’re not law enforcement officers, even if all they fucking do is enforce laws.

Fortunately, this lawsuit got a second pass from a panel of Third Circuit judges. This decision went the other way. This time, the government bullshit received no support from the assembled judges.

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 final call? The Federal Tort Claims Act (FTCA) applies to TSA officers.

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).

The Third Circuit also makes this devastating point about the government’s decision to call mandatory bodily-intrusive searches “administrative.”

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 Fourth Circuit only took one pass to arrive at the same conclusion. The government’s protestations ignore the plain meaning of easily definable words.

[T]he government asserts the limits it seeks are implicit in the overall provision. Invoking the principle that “words grouped in a list should be given related meanings,” the government says the law enforcement proviso’s references to “seiz[ing] evidence, or . . . mak[ing] arrests for violations of Federal law clearly refer to police powers in criminal investigations.” And so, it continues, the statutory words “execute searches” also must be so limited.

We are unpersuaded. True, the words “make arrests” are limited to the criminal context, and “seiz[ing] evidence” is often—and likely most often—used in that context. But government officials investigate plenty of violations of law that are civil, not criminal, in nature, and there is nothing linguistically strange about using the words “seize evidence” in that context. The government’s premise, in short, does not hold.

Now, the Ninth Circuit Court of Appeals has joined the chorus of appellate voices refusing to pretend TSA officers aren’t law enforcement officers. (That chorus also includes the Eighth Circuit.) The opening of the decision [PDF] makes it clear the Ninth was just as unimpressed by the government’s “not an officer” arguments as the other three courts.

The panel held that a TSO easily satisfies dictionary definitions of officer at the time of the proviso’s enactment in 1974. That TSOs are titled, uniformed, and badged as “officers” reinforces the conclusion that they are “officers of the United States” as understood in ordinary parlance. The panel rejected the government’s contention that the proviso is limited to officers with traditional police powers. While the TSA Administrator did not designate TSO Anita Serrano as a “law enforcement officer” under the Aviation Security Act, this did not preclude her from qualifying as an “officer of the United States” under the FTCA.

And it has this to say about the government’s insistence that TSA searches aren’t actually searches.

The government argued that TSOs do not “execute searches” by conducting screenings. The panel held that the screenings fit the ordinary, contemporary, and common meaning of searches. Further, given the intrusion involved in TSA screenings, caselaw explicitly recognizes them as searches under the Fourth Amendment.

It only takes the court 20 pages to dispense with all of the government’s arguments, almost all of which are repeated assertions that words like “search” and “officer” should only be defined as the government wishes them defined on a case-by-case basis. But, as the Ninth Circuit points out, these words definitely encompass the personnel employed at TSA checkpoints, along with their actions and powers. No sale. The FTCA applies and the lawsuit can move forward.

And with that, about half the nation is united in its ability to bring lawsuits against TSA officers for rights violations. Given this trend, maybe TSOs should stop violating rights so frequently.

Filed Under: 4th amendment, 9th circuit, civil liberties, ftca, qualified immunity, tsa