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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

D.C. Circuit: TSA Charged with “Safety and Security,” Not Just Security; Mask Mandate Petition Denied

There is no dispute that the Transportation Security Administration was created by Congress after the 9/11 attacks in order to prevent future acts of air terrorism. The Aviation & Transportation Security Act of 2002 (“ATSA”), TSA’s enabling statute, makes clear that it was created to address “security in all modes of transportation.” 49 U.S.C. § 114(d). Virtually every section of ATSA discusses issues such as passenger screening, cargo screening, sterile areas, and the like.

TSA is not a public health agency, nor do they have general police powers, so when they issued a mask mandate for basically the entirety of the nation’s transportation system, I sued. My challenge has nothing to do with whether masks work or what coronavirus policy should be: it solely raised the issue of whether TSA should be allowed to create those policies.

Today, unfortunately the U.S. Court of Appeals for the D.C. Circuit disagreed. In a 2-1 decision (linked below), the court held that TSA was created to deal with “safety and security” and denied my petition. The court held that “Corbett plainly has standing to pursue his claims in this case,” a point which the government disputed in an argument that “borders on frivolous,” which was a small victory for anyone challenging TSA policies in the future. But the court then continued to conclude that Congress used “capacious terms” in ATSA in order to give TSA “broad authority.” Respectfully, I disagree that when Congress says “security” they really meant “safety and security,” I am disappointed with the ruling, and I will consider my options from here.

The dissenting opinion, penned by U.S. Circuit Judge Karen Henderson unfortunately “dissented” to personally attack me for a “waste of judicial resources” because it found the gripes within my petition to amount to mere “trifles” and that my alleged injury was insufficient to demonstrate standing. With all due respect, two federal judges just agreed that I demonstrated standing, so clearly raising that issue was not an indefensible claim. I consoled myself after reading her harsh words with the knowledge that Judge Henderson also wrote that illegal aliens are not “persons” under the Fifth Amendment in 2017 (seriously), that the Second Amendment doesn’t apply in D.C. (also seriously), and recently sided with controversial Trump appointee Neomi Rao to force a lower court to dismiss the case against retired U.S. General Michael Flynn, who lied to investigators about being an unregistered agent of a foreign country, in a ruling that was aptly described as “astonishingly bad.”

Coronavirus litigation is hard. It is few courts that have had the courage to draw a line in the sand — anywhere in the sand — and attorneys who fight that fight certainly do not deserve to be talked down to by federal judges. We can all disagree on exactly how coronavirus policy should be shaped and by whom, and indeed we are doing a disservice if we are not testing these society-altering policies in the courtroom. I’ll try not to be too discouraged, and I hope my readers will not be either.

Corbett v. TSA – Petition Denied (.pdf)

TSA & DEA Settle Civil Forfeiture Abuse Lawsuit After Stealing $70K from Film Maker at Airport

Etienne Complaint

“Civil asset forfeiture” is a legal framework that allows the government to take money or other assets that it has probable cause to believe are connected to a crime. The problem, of course, is that it’s up to cops on the ground to say whether they have probable cause or not, and then it’s on you to fight to get your property back — precisely backwards from what it should be.

Unlike criminal forfeitures, civil forfeitures require no one to be convicted — or even arrested for — a crime. Surely there are some instances where this allows the government to legitimately take property from drug dealers or others where the property is obviously criminal proceeds but they can’t nail down an individual to send to jail. But the reality is that this enables law enforcement laziness, where field agents act on a hunch, without serious regard for whether the money is actually criminally-connected or not, often times earning their agency a commission, and massively screwing over innocent people left and right. And sometimes, those involved act in bad faith.

Keddins Etienne, who asked me to share his story, was traveling through JFK airport in New York just before the pandemic erupted with $70,000 cash. He was traveling on domestically, and there is no limit to how much cash you may travel with or requirement to declare cash in any amount unless you’re leaving the country. Etienne works as a film maker, an industry that for smaller productions often pays staff in cash, and the funds were needed for an upcoming production. There was literally nothing to see here.

But, TSA spotted the cash while x-raying his bags and reported their findings to the DEA. DEA agent Antonio LoGrande stopped Etienne, questioned him for several minutes, and — apparently unsatisfied — LoGrande walked away with his cash.

Now, carrying cash, in any amount, is not probable cause that the cash is connected to drugs or some other criminality. Nor is doing so at an airport, nor is not being able (or willing) to justify yourself to some DEA thug. But, Etienne left the airport that day with $70,000 less than he came in with, in exchange for a slip that basically says, “We jacked your cash, if you want to see it back, here’s how you can fight for it.” Except they use important-sounding but actually quite silly language like, “To request a pardon of the property…”

Love Letter from the DEA
Love Letter from the DEA

One shouldn’t have to request a “pardon” for their own innocent funds, but regardless, Etienne did just that. He retained me as his attorney, and I submitted the claim forms to seek return of the cash. Then, something even more curious happened: an attorney for the government, Assistant U.S. Attorney Claire Kedeshian, contacted me and attempted to get me to “settle” the matter by accepting only part of the cash back, as if this were some kind of breach of contract or negligence claim that the parties should negotiate. Ms. Kedeshian advised me by phone that failing to settle might result in additional liability — even criminal liability — for my client, and that they had evidence that he was involved in “structuring” (the crime of depositing or withdrawing large amounts of cash from a bank a small amount at a time in order to avoid federal reporting requirements that trigger with individual transactions of $10,000+).

“Just give us a few thousand and we’ll let you go…”

But, a review of my client’s bank statements showed nothing of the sort: they entirely made up that accusation in an attempt to strong-arm him into settling. I advised them that return of his cash was non-negotiable — return every dollar or see you in court — and that their methods were disgusting. And so we waited for months until the deadline set by law for them to either return the money or start court proceedings arrived, and about 2 weeks before the deadline, they sent us a note saying they would return the money, with no further explanation. Total time from seizure to recovery of funds was about 8 months.

It seemed to me that the wrong done to Etienne was not fully addressed by simply returning his money. So we filed Etienne v. U.S., Case No. 21-CV-613 in the U.S. District Court for the Eastern District of New York, alleging unlawful search and seizure, as well as abuse of process (New York’s civil-context version of malicious prosecution). The case was assigned to a judge who requires a pre-motion conference before filing motions, and the government asked for such a conference on a motion to dismiss. A DOJ attorney got up before the judge and explained the basis for its motion: that carrying that amount of cash through an airport constituted at least “arguable” probable cause sufficient to grant qualified immunity to the DEA agent. The judge made clear that he was not impressed and ordered the parties to mediation. In August, an agreement was reached, and the government paid my client an additional $15,000 for his troubles. The money was finally received last month.

Things ended well for my client, but the taxpayer is out $15K plus probably tens of thousands of salary dollars to the DEA agent and several attorneys who wasted their time trying to backwards-rationalize the seizure of an innocent man’s money. And I wonder how many innocent people just don’t have the will to fight and lose some or all of their money? Those who study the matter suggest that $3B per year is seized through civil forfeiture. So perhaps the government just thinks of the $15K they paid my client as a cost of doing business. It would be nice to see the Department of Justice return to acting in the interest of justice rather than running rackets like this.

Etienne v. U.S. – Complaint (.pdf)

NYC: Don’t Ask Our Vaccine Mandate Inspectors to Show Their Vax Cards!

New York’s vaccine mandate program, dubbed “Key to NYC” and requiring all who enter bars, restaurants, gyms, theaters, and the like to show proof of at least one dose of a vaccine, has been a shit-show from its very inception. We can start with its questionable necessity, given that 83% of adults in the state already have at least one dose. We can look at the disparate racial impact, given that younger black residents are far less likely to be vaccinated, leading to a new means of discrimination and protests by BLM. We can realize that its efficacy is questionable given that any moron can print a vaccine card (so long as one is not illiterate) and there is absolutely no way for a business to verify its authenticity. And perhaps we can even think about the small business owners, already closed for many months and handicapped thereafter, who shouldn’t have to take city-provided conflict resolution courses to deal with people who get upset about having to show their medical records to have a bite to eat, as well as the hit to their much needed revenue, and the fact that it is simply not fair to place the burden of enforcing a public health mandate upon them.

If all of that doesn’t demonstrate that this policy was created in an ivory tower, I received a tip from a New York CIty venue who was inspected by the city for vaccine mandate compliance yesterday and had a simple request of the inspectors: show your vaccination card before entering, like any other person who enters. The inspectors had a simple reply: no. The venue was written up for “denying access” and presumably will face some kind of fine by mail.

These were just inspectors on a power trip, right? I contacted the Mayor’s “Office of Nightlife” chief Ariel Palitz, who told me:

“Inspectors are not required to be vaxxed because their presence is for a ‘quick and limited purpose.’ Exactly like unvaxxed patrons who are dining outside may go inside to use the bathroom or pick up food with a mask on.”

But as any establishment in NYC with a food service permit knows, city inspections can sometimes take hours, the inspectors are in people’s faces, putting their grubby hands all over things, and wandering into private areas, and is simply not the same risk as one who enters to use the bathroom and then leaves. Beyond that, the city seems oblivious to how it looks when they say, “All you people need to be vaccinated to come in… but we are special and will come and go as we please!”

Knock it off, Mayor de Blasio. The people are tired of rules for them, but not for you.

How to Request TSA Checkpoint Security Video (FOIA/Public Records Requests)

I am approached by potential clients multiple times per week describing pat-downs gone wrong. Sometimes, the case is black and white: “They strip searched me in the back room” is a scenario where there is no argument that the screeners were “just doing their jobs.” Often times, however, the situation they describe is abusive but close enough to TSA’s “legitimate” procedure that proving it crossed the line may be nearly impossible. These include allegations that the pat-down was done in a way to cause pain (generally, by hitting the groin area), or that screeners used the pat-down as an opportunity to grope rather than search. In these cases, I generally advise clients to get the CCTV video of the incident.

“You can do that? How?”

Every state in the country, plus the federal government, has some variety of public records law.  They may call it a “Freedom of Information” act or law (FOIA or FOIL), a “Sunshine” law, or merely a “Public Records Law,” but the idea is that members of the public have some right to request records from the government.  Records include pretty much anything, from paper documents to e-mails to video.  But, keep in mind that every state has a different version of a public records law, so the steps below are the general process in many states; an attorney can help you confirm that you’re doing what’s right for your state.

Public Records Request Contact at Miami International AirportStep 1: Find the Video Owner.  Security cameras at the airport are typically not owned or operated by TSA.  The footage generally belongs to the airport authority, which is most commonly the county in which the airport is located.  Google for “[airport name] public records request” and you will find that most airports have a process, or at least an e-mail address, for submitting public records requests.  If so, follow their procedure.  If not, you may have to dig around the county’s Web site, or call the county and ask.

Step 2: Write Your Request.  Public records requests generally don’t have to adhere to some kind of form: you simply ask for what you want and tell them how to get it to you.  What you want to make sure you do is describe the video you want in a way that is specific enough that they can find it.  Example: “All video showing a TSA pat-down of a blonde woman, 50 years old, 5’3″, 150 lbs., wearing a pink shirt and white pants, at XYZ airport, Terminal 1, South Checkpoint, second security lane from the left, on 1/1/2021, between 10:10 AM and 10:30AM.”

Step 3: Wait.  Send in your request and set a reminder on your calendar for 30 days, and don’t think about it again until then.  Sometimes you’ll have your records in a week, other times it takes much longer, but you cannot speed it up by contacting them every few days. If you don’t have your request in 30 days, then consider your request ignored.

Step 4: Deal with Pushback.  Sometimes, the airport authority will not provide the video, often citing that it is “Sensitive Security Information” (“SSI”).  However, as a general matter, TSA does not classify checkpoint video as SSI unless it shows computer screens or sensitive documents or similar.  Frankly, these security videos have never, in my experience, been detailed enough to make out what was on a computer screen.  An attorney can help you if your request is denied.  Likewise, if your request is ignored, and after 30 days you are unable to reach anyone to give you a status update, you may wish to have an attorney take a look.

Step 5: Review the Video.  Pretend you’re a random person on a jury.  In fact, perhaps have some objective friends watch it with you.  Based only on what you see in the video, are you convinced that this government employee went too far?  If the video has a clear view of the search but the misconduct simply isn’t apparent on tape, you may need to let this one go.  No one wants to let an abuser get away with it, but sadly justice isn’t done every time, and you don’t want to waste your time and money fighting a battle that simply can’t be won.  On the other hand, the video may make the misconduct quite clear.  In this case, send it on to an attorney for a professional opinion.

The most important part of this process is that you start it quickly.  CCTV videos are usually discarded on a rolling basis, most commonly after 30 days.  Failing to request the video within this retention timeframe doesn’t just deprive you of the video, but it may also allow the other side to suggest that your delay resulted in evidence being destroyed, and may work against you in your lawsuit.  Save a receipt for the sending of your request, whether it be an e-mail confirmation, a screen shot, or a certified mail receipt if you went the old-fashioned way (and there is certainly nothing wrong with that!).


This post describes a general means of filing a legal request. This is not legal advice, which can only be accomplished by having a licensed attorney review your specific circumstances. If in doubt — or even if not — you are encouraged to contact a competent attorney for a consultation.

Lawsuit: TSA Fined Disabled Veteran for Being *Unable* to Comply with Airport Screening

Rohan Ramsingh is a disabled veteran of the United States Army. His service to his country left him with multiple disabilities, including minimal use of one of his shoulders and severe post-traumatic stress disorder (PTSD), sufficient that the government classifies him as having “permanent and total disability.” To give you an idea of the extent of the surgeries, medication, and other treatment he has required, his medical record with the Veterans Health Administration is nearly 900 pages.

A few months before the pandemic descended upon the world, Ramsingh went to the airport, presented himself at the security checkpoint, and candidly told TSA screeners about his disabilities at the start of screening. His shoulder injury precludes going through a body scanner (which requires a traveler to hold their arms above their head for several seconds) and his PTSD is triggered by having certain areas of his body touched by strangers. Upon hearing this, instead of working to find a solution, or at worst telling Ramsingh that they wouldn’t be able to clear him to enter, supervisors apparently interpreted Ramsingh’s medical limitations as disrespect of their authority and started to threaten him with detention, fines, and police intervention. Security video shows that the whole time, Ramsingh remained calm, not once yelling or create a scene, and after several minutes of being barked at, he asked TSA to allow him to leave the airport. Instead, TSA held him and police were called. The incident ended when the responding officer told Ramsingh that he wouldn’t be participating in detaining him and that he was free to go.

If only the story also ended there. Days later, Ramsingh received a letter proposing that he pay TSA a civil penalty of $2,050 for “interference” with the TSA screening process.

Surely this must be posturing by some supervisor with a hurt ego that will be abandoned once the adults in charge take a look, right? Wrong. Ramsingh retained competent counsel — yours truly — who retrieved the security video, the incident reports, and the medical records, and presented them to actual attorneys for TSA assigned to the case, David Hall and Bill Hernandez. Instead of dismissing, they argued that being disabled is no defense for failure to complete the screening process, and TSA court (yes, there is such a thing), of course, agreed:

“TSA did not dispute Respondent’s claims to STOSs Pagan and McClelland that he suffers from a condition preventing him from lifting both arms and PTSD, and it does not dispute Respondent’s VA medical documentation, in Exhibit A. … However, as discussed in Ruskai, supra, an individual’s bona fide medical condition does not invalidate the requirement to complete screening.

Order Granting TSA’s Motion for Decision, Mar. 4th, 2021, by Hon. Michael J. Devine, U.S. Coast Guard Administrative Law Judge

An appeal to the head of the agency was denied, and so on Friday we asked the United States Court of Appeals for the D.C. Circuit to explain to TSA that no, it cannot fine people for not completing screening when they are unable to do so. Case No. 21-1170 was assigned with briefing to begin next month.

One would think that a disabled veteran would be the last person the TSA would give grief to. In screening 2 million travelers daily, TSA could be expected to learn how to interact with people with disabilities generally. After all, according to the CDC, 1 in 4 Americans has some kind of disability. This behavior is a disgrace, and I look forward to fighting this battle in an actual Article III court.

Ramsingh v. TSA – Petition for Review w/ Exhibit (.pdf)

Farewell, Andy!

I usually don’t celebrate the downfall of others. So I will keep this exception to my general rule brief.

Governor Cuomo caused the deaths of ~10,000 seniors because he refused to use the USNS Comfort for political reasons, instead sending COVID patients to nursing homes. He set the tone for unnecessary restrictions around the world by declaring that “science” required a food curfew, bans on music, discrimination against other states, and more; the “science” supporting this has still not been released and our economy will feel it for years. And he did all this while being a creep to any woman who crossed his path.

The Governor was a bully and got what he deserved. Some may think he did the best he could with a tough situation. I respectfully but firmly disagree, and today I celebrated his resignation from downtown Denver, where I am representing those injured by United Airlines’ negligence on Flight UA328 earlier this year. It was a pleasant surprise to check my phone after leaving the federal courthouse to learn that it was champagne o’clock!

Best of luck to Kathy Hochul, next in line for the Governor’s Mansion. The systemic problems in Albany are not gone, and she has a lot of work to do.

Can Government Officials Block the Public on Twitter? N.Y. Gov. Cuomo Aide Melissa deRosa Wants to Find Out

[Update at bottom!]

Just a few short years ago, we elected a president who took to Twitter to communicate his public policy positions (in between insults, incoherent ramblings, covfefe, and the like). Trump, never known to take criticism well, also made a habit of blocking users who disagreed with him, resulting in a First Amendment challenge that did not go well for him. “We also concluded that when the President creates such a public forum [on Twitter], he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.” Knight First Amendment Inst. at Columbia Univ. v. Trump, 953 F.3d 216, 217 (2nd Cir. 2020). The Fourth and Eighth Circuits held similarly in similar cases.

But the right has far from an exclusive claim on censorship, as well as on the use of Twitter to communicate with the public. N.Y. Governor Andrew M. Cuomo, the man who ordered nursing homes to accept COVID patients to avoid using the USNS Comfort provided by Trump, resulting in many thousands of dead seniors, also likes to use Twitter, directly as well as through his staffers, including his right-hand-woman Melissa deRosa. After a year of regularly participating in public discussions started by the Governor and his staffers, today Melissa apparently decided she has had enough of my shit and blocked me.

When you take a public office and start creating public fora, you must have thick skin and accept that you’ll receive criticism (and that it will not always be polite!). My First Amendment right to be a part of the public debate has been curtailed, and I’ve written to Ms. deRosa to demand that she cease-and-desist from this unconstitutional behavior — or get sued.

Will update as things progress. [Update: I guess the C&D was well received… have been unblocked!]

Class Action Lawsuit Against United Airlines for Flight 328 Disaster

I usually focus my blog (and my law practice) on civil rights issues, but sometimes big corporations can step on human rights just as well as the government. United Airlines is one of those companies, missing no opportunity over the past several years to demonstrate that it simply does not care about anything but profit. From beating up its passengers, to killing the family dog, to refusing to block middle seats throughout the pandemic — all while taking $15 billion in federal coronavirus aid (and demanding $15 billion more) — it almost seemed like every time something went wrong with domestic plane flights, you could count on United to be involved.

So two weeks ago, when a Boeing 777-200 flying from Denver to Honolulu lost chunks of its engine a few minutes after takeoff, treating the passengers to an uncontrolled engine fire and an emergency landing, it wasn’t particularly a surprise to hear that United was the carrier.

A passenger’s view from UA328 on February 20th, 2021.

The ATC recording from the cockpit demonstrates that the plane was piloted by two calm and collected crewmembers, who thankfully were able to land the plane without any serious physical injuries, but were unable to extinguish the fire in-air (despite cutting fuel) and left the 231 passengers on board in fear for their lives for a total of 18 minutes.

Airplane engines don’t simply explode mid-air unless something was done wrong. The NTSB has preliminarily opined that “metal fatigue” caused one of the fan blades to separate (taking a second blade with it) and flew off into the fuselage, possibly further damaging the controls that would have been able to put out the fire. But how would United know that the metal was fatigued? Perhaps because the plane is 25 years old (making it one of the oldest 777s in service in the world), because there are straight-forward tests available to check for metal fatigue (and, early reports show that was last done five years ago), but most importantly, because the plane in question — tail number N772UA — has a sister plane — N773UA — that lost a fan blade for this reason in 2018!

To add insult to injury, the passengers on UA328 were rebooked on a “new plane” to get to their destination, but you won’t need 3 guesses as to which plane United chose: none other than N773UA. You can’t make this up.

It is time United stop playing games with safety. I was retained by a passenger on UA328 and today I filed a class-action lawsuit on behalf of all passengers on the plane who were subject to the intense emotional distress that comes along with watching your airplane on fire for 18 minutes, wondering if you’re going to make it safely to the ground or end up in a fiery crash. No one should have to live through that as a result of an airline’s refusal to take proper care of its planes and its customers, and I look forward to forcing United to make it right as best is possible.

Case is Schnell v. United Airlines, No. 21-CV-683, in the United States District Court for the District of Colorado.

Schnell v. United Airlines – Class Action Complaint (.pdf)

Lawsuit Challenges TSA Authority to Implement Mask Policy

Lawsuit CoverIt seems that masks reduce transmission of coronavirus: some studies showing reduction of as low as 20%, while others claim as high as 85%. I don’t really have a problem with mask requirements in crowded, confined spaces at the moment. They are not the cure-all that some make them out to be, but they provide some reduction and are a relatively small burden compared to some of the coronavirus measures imposed by the government.

What I do have a problem with is any expansion of the authority of one of the most abusive, inept, and inefficient agencies in the nation: the Transportation Security Administration. Transportation security involves passenger screening, cargo screening, managing intelligence relating to threats to civil aviation, technology to detect weapons and explosives, federal air marshals, and the like. This is clear just by looking at the index of law that Congress passed to assign duties to the TSA, 49 U.S.C., Subchapter I. Transportation security is not transportation safety. Transportation safety is the responsibility of the U.S. Department of Transportation, and when it comes to airplanes, their subagency, the Federal Aviation Administration (F.A.A.).

Despite it being completely out of their jurisdiction — or what lawyers call “ultra vires” (Latin: beyond power) — on January 31st, 2021, TSA issued several “security” directives to air carriers, airport operators, and even bus and train station operators, ordering them to enforce strict mask rules and to report passengers who do not comply to TSA (over the next few days, TSA Twitter accounts informed the public that it would issue fines of up to $1,200 against non-compliant passengers). TSA’s mask rules apply anywhere within the transportation system: from the curb outside of check-in, to TSA’s checkpoints, to the gate, lounge, bathroom, on the airplane, and even while seated in the food court (“the mask must be worn between bites and sips”):

Security Directive

It is unclear why this was necessary at all, given that all airlines and airports in the country require masks anyway. And, in fairness, TSA did not get the idea to implement a mask policy on its own. The day after inauguration day, new President Biden issued an executive order “promoting COVID-19 safety in domestic and international travel” that asked an alphabet soup of agencies to enforce mask regulations, and he made the mistake of including TSA on that list. He could have just named the FAA and CDC and been done with it; if you suggest to TSA that they assert more power, they will not hesitate to accept your invitation.

Notwithstanding, an executive order cannot increase the jurisdiction of an agency beyond Congress’ mandate, and if we do not stop them now, you can expect TSA will continue to issue more and more mandates for general public health and safety concerns. Therefore, after a 2-week process of getting myself admitted to the bar of the U.S. Court of Appeals for the D.C. Circuit, I filed a petition for review of these orders and asked for an emergency stay pending the resolution of the case. (The Court of Appeals, rather than a district court, is the appropriate court because of a jurisdictional statute that says so.) Case is Corbett v. TSA, 21-1074, and I think it is likely the court will in some way address the emergency motion next week. Documents below.

Corbett v. TSA – Petition for Review (.pdf)

Corbett v. TSA – Emergency Motion for Stay (.pdf)


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