Appeals Court Says TSA Agents Are Beyond The Reach Of Federal Lawsuits

from the agents-in-baggy-tactical-pants-shouting-'u-can't-touch-this'-forever dept

Well, this is disappointing. The 3rd Circuit Court of Appeals has just made it pretty much impossible to sue a TSA officer, no matter how you've been treated or how many of your rights have been violated. Reuters has the rundown on the decision, which all comes down to the court's definition of the words "law enforcement officer." (via Parker Higgins)

In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners were not “investigative or law enforcement officers,” and were therefore shielded from liability under the Federal Tort Claims Act (FTCA).

The majority said it was “sympathetic” to concerns that its decision would leave fliers with “very limited legal redress” for alleged mistreatment by aggressive or overzealous screeners, which adds to the ordinary stresses of air travel.

“For most people, TSA screenings are an unavoidable feature of flying,” but it is “squarely in the realm” of Congress to expand liability for abuses, Circuit Judge Cheryl Ann Krause wrote.

Thanks, Judge Krause. I'm sure Congress will get right on that. Seeing as there's no personal benefit to Congress members and ample opportunity to piss off fellow government employees with the power to make their travel experiences closely resemble an abduction by aliens, there's little chance of this being pursued, no matter how many cases are shrugged into their lap.

Here's the background: the appellant (Nadine Pellegrino) was selected for additional screening. She demanded a private screening and things went from bad to worse quickly. Items were carelessly packed and unpacked. Personal belongings were damaged. TSA agents were unhelpful, rude, and apparently deliberately obstructive. Agents claimed Pellegrino "hit" them with her belongings while in the screening room. Not "hit" as in the endpoint of a swing, but "hit" as in things bumped into them while they were dealing with an unhappy traveler. Oh, and she called the two officers in the room "bitches." This is how a bunch of government employees -- starting with the TSA agents -- chose to handle it. From the decision [PDF]:

When the police arrived, Pellegrino was frisked, handcuffed, and arrested. Labbee confiscated her driver’s license and, along with Abdul-Malik, swore out criminal complaints against her. Kissinger offered a witness statement corroborating the allegation that Pellegrino struck Labbee in the leg with her bag. The police escorted Pellegrino out of the airport in plain view of other passengers. She was held for roughly 18 hours and released after her husband posted approximately $400 in bail.

The police incident report stated Pellegrino struck both Labbee and Abdul-Malik with her bags and shoes that she tossed out of the private screening room. It also noted both TSOs suffered from leg pain and a stomach bruise as a result of Pellegrino’s actions.

Did things calm down? Hardly. The Philadelphia District Attorney’s Office charged Pellegrino with ten criminal violations: two counts of felony aggravated assault, see 18 Pa. Cons. Stat. § 2702; two counts of possession of an instrument of a crime (the suitcases allegedly used to hit the TSOs), see id. § 907; two counts of making terroristic threats, see id. § 2706; two counts of simple assault, see id. § 2701; and two counts of recklessly endangering another person, see id. § 2705. (Someone must have taken creative charging and aced the test; either that or there was a lot of lawyer-lounge temporizing.)

That's where this all starts. This is how the 3rd Circuit chose to end it.

The long decision spends most of its running time interpreting various words to the detriment of the public at large. TSA officers enforce laws, detain people, perform searches of both people and their things and yet, somehow, they're not "investigative or law enforcement officers." The court unhelpfully explains the only reason TSA officers are called "officers" is because the agency threw employees an undeserved bone to lift flagging morale.

[A]s we noted previously, TSOs were originally called “screeners,” and their title was changed in 2005 merely as part of an effort to improve employee incentives and “upward mobility opportunities within [the] profession.” Specifically, it appears that the title change and related adjustments were intended to “give TSOs an opportunity to . . . apply for DHS law enforcement positions”—further undermining the notion that TSOs already constitute a species of law enforcement officer.

If we can take any joy from this decision at all, it's the fact that the "promotion" from "screeners" to "officers" was as meaningless as everything else the TSA does. That's the most cynical way to appreciate this decision -- one that decides a whole bunch of words scattered across a few dozen pages somehow alters the fact that these "officers" do stuff associated with law enforcement and investigation, even if they have to turn over actual arrests and bookings to local cops.

Judge Thomas Ambro's dissent highlights how ridiculous -- and ridiculously unhelpful -- the majority's dissembling is.

No other Court of Appeals has gone as far as they do by categorically barring certain classes of individuals (i.e., those who are not criminal law enforcement officers) from the reach of the proviso. Nor has any other Court of Appeals relied on another statute’s and an agency’s classifications to determine whether a federal agent is an “investigative or law enforcement officer” under § 2680(h).14 The majority’s reasoning would allow Congress—and perhaps even agencies—to exempt individuals from the proviso’s reach simply by categorizing them as employees who lack criminal law enforcement powers. See Majority Op. at 43 (citing a TSA directive that discusses the distinctions between TSOs and law enforcement officers). It would also empower courts to disregard § 2680(h)’s statutory definition of “investigative or law enforcement officer” in favor of those terms’ meanings as perceived by the particular judicial panel. Such a rule would allow courts to expand or contract statutory definitions as they see fit.

This isn't any way to run a law shop. But this is the way the Third Circuit runs its jurisdiction. This is its second shielding of TSA officers from federal civil rights lawsuits -- something it says it does reluctantly, but also apparently repeatedly.

TSA officers are empowered to search for violations of federal law and enforce federal travel regulations. However the TSA chooses to define their duties -- and it deliberately chooses to describe them as outside the reach of federal torts whenever convenient -- they are officers of the law and there's even a hint of "investigation" to the work they do. Then again, what do you expect from an agency that defines the airport screening process this absurdly?

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

They're only "voluntary" in the sense that no one holds a gun to your head and forces you to buy a plane ticket. Other than that, they're mandatory. If you're flying, you're submitting to a search the federal government says lies outside the protections of the Fourth Amendment and, in this case, outside the reach of a federal lawsuit, should a TSA officer steamroll your rights.


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  • icon
    That One Guy (profile), 13 Jul 2018 @ 3:53am

    Schrodinger's Agent, where the status depends on benefit to THEM

    So if they're not considered law enforcement with regards to laws that might hold them liable that means you can sue them personally the same as any other non-badge toting thug, right?

    ... Right?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2018 @ 5:30am

      Re: Schrodinger's Agent, where the status depends on benefit to THEM

      Their only benefit is security theater where I must assume they are the comic relief.

      reply to this | link to this | view in chronology ]

    • icon
      ldd (profile), 13 Jul 2018 @ 6:44am

      Re: Schrodinger's Agent, where the status depends on benefit to THEM

      They are not law enforcement officers, but they were still acting in their role as government employees and thus are shielded from being individually sued. The legal starting point is that you cannot sue the feds or its employees for actions they performed as federal employees. The FTCA opens the door to some claims. For instance if the employee is a LEO, some claims may move forward. But if the employee is not a LEO, then the original starting point is the one that applies: the employee is immune from being sued for actions they took as government employees.

      This being said, I recall in other situations that the court has held that people who are mandated by LEOs to perform actions for LEOs are treated as law enforcement for cases like this one. I recall it came up in some criminal cases where the cops obtained evidence through Geek Squad. One of the question was whether Geek Squad was just an informant, or were they effectively an arm of law enforcement. An informant can give information to law enforcement even if the way the informant got the information would be a civil rights violation if a LEO did it. However, LEOs are not allowed to just contract out things they are not allowed to do. So one of the questions the court considered was whether Geek Squad was just an informant or was in an arrangement with the FBI such that it should be considered to be law enforcement.

      I don't recall how the Geek Squad cases went, but it seems to me whether the TSA's agents must rely on LEOs to arrest people and bring charges is really neither here not there. They are effectively law enforcement.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Jul 2018 @ 7:46am

        Re: Re: Schrodinger's Agent, where the status depends on benefit to THEM

        "TSA's agents must rely on LEOs to arrest people and bring charges"

        They could in theory just use police dogs to make arrests, who are by law "sworn" police officers (they supposedly bark in the affirmative at the swearing-in ceremony) and any handcuffing by TSA would of course be voluntary, as in "do as I say or I'll release this dog to bite you again."

        The human cops that always accompany the TSA searchers are in a sense little more than dogs, who obey on command whatever their TSA handler orders them to do.

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 13 Jul 2018 @ 4:45pm

        Re: Re: Schrodinger's Agent, where the status depends on benefit to THEM

        But if the employee is not a LEO, then the original starting point is the one that applies: the employee is immune from being sued for actions they took as government employees.

        Must be nice working for the government, where unlike in any other job someone else always picks up the tab.

        Time to update the saying I guess. 'Dumb criminals go to jail. Smart criminals go into law enforcement(or 'law enforcement'), politics, or government work.'

        reply to this | link to this | view in chronology ]

        • icon
          ldd (profile), 14 Jul 2018 @ 8:36am

          Re: Re: Re: Schrodinger's Agent, where the status depends on benefit to THEM

          It is not a free pass for government employees to commit crime.

          For one thing, the immunity only applies for things they do as part of their government job. If I'm a grant officer for the National Endowment for the Arts, and break into my neighbors' house, or try to pass forged checks, I'm not immune.

          Moreover, criminal cases are not brought up by private citizens, but by the government. And the government does bring up suits against its own employees who commit crimes while acting as government employees. The presumption is that if the government sues, then it also waives immunity. The immunity is a government prerogative, not a prerogative of the individual employee, so the employee has no say in whether or not immunity is waived.

          reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 13 Jul 2018 @ 5:34am

    Voluntary

    So, basically by their definition of "voluntary," Harvey Weinstein can't be charged or convicted of any crimes since all of the sex, etc was "voluntary" since no one held a gun to their head.

    More nonsensical rulings from nonsensical judges.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jul 2018 @ 5:36am

    a hypothetical

    Let's say that I get together with some friends, and we all buy some police-looking uniforms and shiny badges, then we set up a checkpoint on a major thoroughfare and stop people and essentially make them submit to "voluntary" searches if they want to be let through the roadblock. Of course we'd go to jail for doing something like that, but only because we're not police officers of any kind, and only police are allowed to do that sort of thing.

    But yet the TSA, who we are now told are also not police (despite the blue uniforms and badges and authoritarian demeanor), do basically that very thing every day, and unlike me and my non-police friends, won't go to jail for essentially the same thing that would put anyone else in the clink: looking like police officers, acting like police officers, and making the public believe that they are indeed some type of police officers whose orders must be obeyed.

    I'm just waiting for another case in which TSA "non-officers" will be ruled to be "investigative or law enforcement officers" because in that particular situation it will be to their benefit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jul 2018 @ 6:14am

    good ol' USA 'police state' in operation again and even worse, the removal of more of the rights of members of the public! i wonder if the judges concerned would feel the same if they were treated like the passengers were?

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 13 Jul 2018 @ 6:16am

    Something must be done about this!

    So now we make government agents beyond the reach of any kind of accountability or consequences. What could possibly go wrong?

    We should be outraged and calling our congress critters to do something about this! Why should an activist court be allowed to limit such protections only to TSA agents while leaving other government officials vulnerable to accountability, lawsuits and consequences?

    reply to this | link to this | view in chronology ]

  • identicon
    me, 13 Jul 2018 @ 6:46am

    They cant press charges

    If one defends themselves and the TSA nazi ends up unconscious

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jul 2018 @ 7:38am

    "Voluntary"

    So, by this court's reasoning, the 4th amendment would not apply outside of your home either because you "voluntarily" gave up those rights by leaving home.

    I hope someone is taking names and keeping track of judges like this and that they are someday held accountable.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 13 Jul 2018 @ 7:42am

    Oh great. So TSA agents, who have a quite documented history of abusive behavior towards people (specially those disabled and pretty females), now cannot be punished via lawsuits and the TSA itself won't ever punish abusive behavior. What could go wrong?

    I definitely don't want to travel to the US.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2018 @ 8:04am

      Re:

      "I definitely don't want to travel to the US."

      So said Bolivian president Evo Morales, a traveler who famously endured even worse treatment by The Long Arm of USA while half a world away.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2018 @ 10:33am

      Re:

      I don't know if it's better or worse, but some commercial airports use non-TSA security screeners.

      Is it still possible to avoid security checks altogether by flying General Aviation from a small airport? That used to be the way to go, if you had access to a private plane...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Jul 2018 @ 11:55am

        Re: Re:

        Instead of a private airplane in a public airport, which TSA does control, how about a private airport completely outside the hands of the TSA? Not in theory perhaps, but obviously an airport with so little traffic that it would not warrant having a TSA guy ever show up.

        Billionaire televangelist Kenneth Copeland owns not only a fleet of business jets, but an official certified airport as well for his own personal use.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Jul 2018 @ 1:43pm

          Re: Re: Re:

          "According to the 2011-2015 National Plan of Integrated Airport Systems (NPIAS), there are over 19,700 airports in the United States. 5,170 of these airports are open to the general public and 503 of them serve commercial flights."

          Those 503 would be the ones to avoid. (The other publically accessible airports are used for flying clubs, corporate/chartered flights, training, cropdusting, parachuting, gliders, etc.)

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 13 Jul 2018 @ 2:29pm

            Re: Re: Re: Re:

            And apparently the TSA is not the least bit worried about those 19,700 publicly accessible (but non-commercial) airports being used as an attack vector for the next Bin Ladin, and so leaves them completely wide open for any explosive or fuel-laden plane to launch a terrorist mission from.

            Yet at the same time these perverts with badges insist on inspecting everyone's genitals, each of which can apparently hold more explosive than a 50 ton Gulfstream jet, like the kind routinely taking off completely uninspected at private airports every day all over the country.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 15 Jul 2018 @ 4:17pm

              Re: Re: Re: Re: Re:

              TSA, and DHS generally, react to the previous attack, they don't anticipate the next one. Someone puts a bomb in a shoe, only afterwards do we all have to take off our shoes. And so on. Nobody has done an attack with a private plane from a non-TSA airport, so that isn't on their radar (no pun intended).

              reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 13 Jul 2018 @ 8:14am

    I have only one question:

    If these so-called government employees aren't "law enforcment officers or investigators", then what the Hell are they doing there? Because it sure looks to me like they are enforcing laws of the land, i.e. "The law says that you can't bring that on the plane", "The law says you have to do this or not do that", and "You must obey the law, or you will be arrested", etc.

    If that isn't law enforcement at the fullest extent, then I shudder to think what might actually qualify as such.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2018 @ 8:42am

      Re:

      The TSA searchers and the cops work together as a team, not unlike the way that many companies are structured in classic "double breasted" fashion, setting up an operating entity with no assets and a non-operating corporate entity that holds all the company's assets (preferably in a low-tax nation), which makes the company immune to lawsuits. The engine that drives this sham is intellectual property, which is "licensed" (generally at far above market value) from one arm of the corporate structure to the other, and !SHAZAM! - no tax and no legal liability.

      The unholy alliance of police officers and TSA officers has roughly similar advantages that allow the duo to get away with doing things without the liabilities that they would otherwise be penalized with if just one or the other performed those security/police functions.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2018 @ 10:56am

      Re:

      Because it sure looks to me like they are enforcing laws of the land, i.e. "The law says that you can't bring that on the plane", "The law says you have to do this or not do that",

      Except as John Gilmore found out, they don't even have to refer to any specific law.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 Jul 2018 @ 12:31pm

    An agency that keeps expanding..

    WHy was this section of gov. created??

    HASNT the reasoning for it, Passed?? All those responsible are dead..

    Where are the cameras?? Where is the AUDIO recordings??

    Without Protection for being an Officer.
    Do we get to File PERSONAL COMPLAINTS??
    Sue them as individuals??
    Do they get FEDERAL lawyers??
    Do they HAVE TO show up in court, and not be paid while AT COURT??

    Private search, and She was allowed to bring in ALL her luggage, and her Purse?? Which should have been SEPARATE and searched independently..
    SHE could have pulled a Machine gun out and HURT herself..

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 13 Jul 2018 @ 4:20pm

    Separation of Powers

    > Thanks, Judge Krause. I'm sure Congress will get right on
    > that.

    The fact that one branch of government isn't doing its job efficiently hardly gives another branch the right to step in and just assume those powers for itself.

    Congress's lack of action doesn't suddenly empower the Judicial Branch beyond what is provided for in the Constitution.

    Despite what Cushing and many others apparently believe, the judiciary is not some kind of super-legislature that can jump into action whenever the actual legislature is being unresponsive.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 13 Jul 2018 @ 5:51pm

    It sounds like it is time...

    ...to make that list of all employees of the TSA.

    After all the TSA keeps lists of people they don't like and those who deserve special treatment every time they fly.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jul 2018 @ 9:47am

    Fake laws enforced by fake government agents.

    reply to this | link to this | view in chronology ]

  • identicon
    Thomas surguine, 24 Jul 2018 @ 1:37am

    Female diplomat from india stripsearched , india strikes back,

    INDIA strikes back, big time. Tsa stripsearched female diplomat from india, horridly. India responds by having ALL Vehicle barriers removed from front of u.s.embassy......reference, paul craig roberts wonderful book...how merica was lost.

    reply to this | link to this | view in chronology ]


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