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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

Barr DOJ Argues TSA Screeners Can Never Be Sued for Checkpoint Abuse

In the nearly a full decade that I’ve been filing lawsuits against the TSA, they have argued for a full panoply of immunities and protections to insulate them from any accountability.  They argue qualified immunity — that their screeners shouldn’t be liable except for violations of “clearly established law.”  They argue that if TSA screeners are following policy, that lawsuits in the normal federal trial court can’t proceed.  They argue that they are immune from state tort claims (.pdf) — ordinary false arrest, assault, etc..

But earlier this week, in the case of grandmother Rhonda Mengert who was strip searched by TSA without suspicion and in blatant violation of TSA policy, the TSA added it all up and argued that because of all of these immunities, there actually doesn’t need to be a way to sue screeners for checkpoint abuse, no matter how egregious, at all.  You see, what travelers should actually do instead of suing is just file complaints with the TSA:

Use the TSA's

Or!  Ms. Mengert, who was just sexually assaulted by a TSA screener, could have vindicated her rights by telling a cop or a manager!

Complain to both law enforcement and TSA management?

And so, because a traveler can file an online complaint or tell a cop or a supervisor, there is no need for a lawsuit with money damages:

Complaint Process Precludes Bivens Claim?

For the lawyers out there, yes, this argument is that a Bivens claim cannot lie against a TSA screener, after TSA has already argued that Federal Tort Claims Act claims also cannot lie, and that state tort claims are also precluded so long as the screener was even nominally performing their duties (even if performance was in direct contradiction to their training and TSA rules) — in other words, no money damages against TSA screeners for checkpoint abuse, ever.

I am sure the government would love it if the remedy for a cop falsely arresting you or beating you back at the precinct was that you get to file a complaint and no more.  That if the FBI searches your house without a warrant, you get to file a complaint and no more.  That if your free speech rights are violated, you get to file a complaint and no more.

Obviously, we are here because people have complained and the injuries keep happening.  Those who are injured by the government are, and should be, entitled to some compensation from the government.  The argument that TSA is special and should be protected from lawsuits no matter what is antithetical to justice and, frankly, legally frivolous, and I look forward to filing a motion regarding the same in due time.

Mengert v. TSA – Motion to Dismiss Individual Defendants (.pdf)

California Woman Sues TSA For Detaining Her, Forcing Her to Submit to “Groin Search”

Jessica Lundquist's TSA LawsuitThe blue-shirted TSA employees of which all travelers are familiar hold the job title, “Transportation Security Officer.”  But despite the “officer” title emblazoned upon the plastic badge on their chest, TSA screeners are not law enforcement officers, do not have the authority to make arrests or hold travelers for any length of time, and if you break the law at a checkpoint, their only option is to call the real police to deal with the situation.

Unfortunately, that plastic badge appears to occasionally cause TSA screeners to “forget” the boundaries of their authority.

Last September, Jessica Lundquist was traveling through Burbank Hollywood Airport (a smaller commuter airport in northern Los Angeles) when a body scanner alarmed.  In my experience from watching checkpoints, body scanners seem to alert on somewhere around 25% – 50% of passengers who pass through them, the overwhelming majority of which are patted down and found to have nothing.  The alerts are false positives, on machines that cost us billions of dollars, by an agency that spends billions of dollars a year annually.

But, Ms. Lundquist did something that TSA screeners don’t like: when told she would have to submit to a “groin search” to “resolve” the alarm, and the screener clarified that they would “need” to touch her genitals, she refused consent; she said no.  Notwithstanding that TSA screeners are not law enforcement and it is not a crime to refuse to continue the screening process, being told no hurts their ego, and so a screener, backed up by two supervisors, did what they may not: they told her she may not leave, and that they would force her to comply if she did not:

I feel for Ms. Lundquist because TSA screeners made the same exact threat to me in 2011.  I knew that TSA screeners were unable to force a traveler to comply, and that their only lawful option is to allow the traveler to leave the checkpoint into the non-secure area, so I continued my refusal until they let me go.  But, believing these “federal officers,” and under threat of forcible compulsion, and after making and being refused another lawful request — to have her screening video recorded — Ms. Lundquist submitted to the search, wherein the TSA touched her vulva and buttocks without her consent.  They, of course, found nothing.

Ms. Lundquist retained me as counsel, and yesterday I filed suit on her behalf in the U.S. District Court for the Central District of California.  These screeners violated TSA policy, they broke the law, and they disregarded my client’s constitutional rights under both the First and Fourth Amendments.  I look forward to continuing to advocate for Jessica and to remind the TSA, once again, that if they exceed the scope of their authority, there will be consequences.

Lundquist v. U.S. Transp. Sec. Adm. et al., 19-CV-10302 (C.D. Cal.) – Complaint (.pdf)

Music Festival Attendees Reach Settlement with Third-Party Security Company Over Alleged Strip Search

In the beginning of September I was deluged with messages alerting me to a problematic security search at a well-attended New York City music festival:

I had to do a strip search...

Sexually Harassed and Humiliated by Festival Security

After speaking with several individuals who encountered abusive security, as well as one employee from the contracted third-party security company who came forward, attendees alleged security dogs picked people out of the security line to receive an invasive search in a tent the security company had set up just for that purpose.  Inside the tent, some attendees claimed they were ordered by security to take off their clothes, or had their clothing pulled away from their body so that security could look down their shirt or pants at their genitals and breasts.  Others alleged security simply reached their hands inside of their undergarments and directly touched their intimate areas.

Unfortunately, it was explained to me by the security guard who came forward to me that festival security company CSS Security was short-handed and brought in out-of-state security guards to fill the gaps.  It does not appear that those guards were properly licensed, and at least some of them would have been ineligible to be licensed because of criminal history.

I represented three individuals who claimed to have been subject to searches like these, and can say that a full and final settlement was reached on the matter with CSS Security to resolve all of my clients’ claims on the matter.

Is It *Really* Impossible To Get A Gun License in NYC? (Part XII — U.S. Court of Appeals)

This is the twelfth installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed), Part XI (Federal Court Refuses Challenge). 

Total Time Spent So Far: 67 hours
Total Money Spent So Far: $2,286

appeal-brief-coverWe left off four months ago when the U.S. District Court for the Southern District of New York dismissed my federal challenge to New York’s gun licensing scheme.  After being denied leave to amend the complaint to fix a technical defect (because no matter what I fixed, the court would still dismiss my complaint, the court ruled), I immediately filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit.  The Court of Appeals is the court directly below the U.S. Supreme Court.

Once you file a notice of appeal, the parties then file briefs — first the appellant, then the appellee, and then the appellant gets to reply.  Often the court will then allow for oral arguments.  There was one more odd requirement here, which is that the Second Circuit does not let attorneys file pro se appeals without being admitted to the court, and so I had to apply for admission and pay another $221 just to represent myself.  I know of no other court with this requirement, although I don’t particularly mind being admitted to that court for future work.  I’m happy to announce that I’ve been admitted to the bar of the Second Circuit.

With that small detour taken care of, I filed my opening brief earlier this week.  I asked the Court of Appeals to consider three main points:

  1. The requirement that an applicant show “need” greater than the average citizen before they may bear arms is unconstitutional. The district court had no choice but to rule against me on this matter since the appeals court has already set (bad) precedent, but now that we’re at the appeals court, they are free to modify their existing precedent by hearing the matter with the full court (“en banc“).
  2. Several application questions were challenged as invasive fishing expeditions.  The lower court failed to apply the proper test.  The test is whether the questions are substantially related to an important government interest, and the judge essentially deferred to the NYPD as to whether there was a “substantial relation” instead of conducting her own analysis of whether the government’s interest in preventing gun crime could be accomplished even if the application were toned down.
  3. Retired NYPD gets a free pass on the “proper cause” requirement, despite the city providing no evidence that as a general matter, all retired cops have a reason greater than the average citizen to carry a gun.  This seems like an equal protection violation to me, but the district court found, without explanation, that retired cops are legally dissimilar to me and that justifies the disparity.  The city should have been required to provide some evidence of the same.

My brief was not particularly long for an appellate brief raising three distinct points, mostly because the outcome of the case is less dictated by whether my writing is compelling and more based on the outcome of a case about to be heard in the U.S. Supreme Court in 6 weeks: N.Y.S. Rifle & Pistol Ass’n v. City of New York.  In NYSPRA, several NYC gun owners with “premise” licenses (allowing them to keep guns at home but not carry them) sued the city for preventing them from taking their guns to gun ranges outside the city or to second homes.  NYC is unique in the entire country for its law preventing premises owners from transporting their guns — even unloaded in a locked container in the trunk of their car — and whether such a law is constitutional turns on whether the way the Second Circuit has looked at gun rights cases is correct.  A win for NYSPRA would require the Second Circuit to take a new approach in my case, and most legal commentators expect the Supreme Court is likely to reverse the Second Circuit here, based on the addition of two conservative judges and based on the court’s slapping down of several pre-argument motions by the city begging them not to hear the case.

I’ve also asked the Second Circuit to withhold judgment until NYSPRA is decided.  This won’t delay the case too much, as the city still gets to file their brief and I get to reply after that, so it would be unlikely there would be a decision until 2020 anyway.  I will update you all once the opposition and reply have been filed.

Corbett v. City of New York – Appellant’s Brief (.pdf)

Supreme Court Petition Filed: When TSA Searches Travelers at Random, Do All Travelers Have Standing to Challenge the Practice?

This summer, I wrote that the U.S. Court of Appeals for the Eleventh Circuit denied my challenge to the TSA’s decision to refuse to allow “some” travelers to opt out of the body scanner in favor of a pat-down.  Their reasoning was simple: that the “some” travelers selected at random for this special treatment happened rarely enough that I couldn’t show it was “substantially likely” to happen to me.

The problem with the Eleventh Circuit’s logic is that the U.S. Supreme Court has never required a “substantial likelihood of injury.”  What the Supreme Court required was “a likelihood of substantial injury, and the Eleventh Circuit, for the past 2 decades, has, on its own, moved that word “substantial” to modify “likelihood” instead of “injury.”

“The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a “likelihood of substantial and immediate irreparable injury.””

Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

To hold otherwise would preclude the courts from ever enjoining unconstitutional government action — no matter how egregious — so long as the government does it to few enough people in an unpredictable way.  That’s not what the Supreme Court has said, nor is it what any of the other U.S. Courts of Appeals have understood the law to be.  (If you’re interested, my petition explores the correct standard and those used by the other circuits).

The Supreme Court takes only a tiny fraction of the cases presented to it, so the odds are against us here, but I am hopeful that because the Eleventh Circuit has pretty blatantly departed from every other court at its level, there is a chance they might take this one up.

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

Trump Threatens Whistleblower on Twitter

I try not to cover purely political stories on this blog, but I do believe we’re watching history unfold here.  Twenty minutes ago, the President posted this to his Twitter:

Trump Threatens Whistleblower

If you’re not following, the context is this: when the President phones a foreign leader, there are usually many others on the call to document and make permanent record of the interaction, as well as to inform policy decisions in the State Department and CIA.  In July, Trump called the president of Ukraine and asked him to investigate presidential candidate Joe Biden and his son.  Some of the people on the call understood the implication to be that Trump wanted Ukraine to dig up dirt on his competition for the 2020 election.  The U.S. then delayed foreign aid that Congress had earmarked for the Ukraine.  A CIA employee who learned of the call through his work with the people on the call created a whistleblower report and submitted it to the Intelligence Community Inspector General.

None of the above is disputed.  It is not fake news.  Trump’s position is not that the above did not happen, but that his request to Ukraine was simply an ask to deal with domestic corruption issues, and that it was not tied to foreign aid in any “quid pro quo” arrangement.

Notwithstanding the fact that it was the literal job of the conversation listeners to listen to his conversation and report details to others in intelligence and foreign policy positions, Trump has now called one or more of these listeners a “spy.”  In the tweet above, he said they should face “Big Consequences.”  In a conversation a few days ago, he noted that we should go back to treating spies like “we used to do,” implying that he wants whomever outed him here to be executed.

One who reports information to their own government does not qualify as a “spy” under any meaningful definition of the word.  And, whistleblowers, in fact, are protected by federal law: 5 U.S.C. § 2302(b) protects the jobs of any federal employees who disclose what they think are illegal activities by other federal employees, so long as they do so through the proper channels (as this whistleblower indisputably did).  Even if the whistleblower was mistaken about Trump’s intent, he did nothing illegal by reporting what he had heard to the IC IG.

What is not protected by federal law are death threats.  Especially when directed at whistleblowers.  Especially when directed at someone scheduled to testify before Congress.  The tweet above is probably sufficient for a felony charge, and by itself, this tweet, from 20 minutes ago, should result in the President’s impeachment.  No matter whether Trump did or did not intend a quid pro quo arrangement, he is not allowed to threaten U.S. citizens for disagreeing with him and asking higher-ups in the government to investigate.  If you are a Trump supporter, now is the time to stand up and say that you diverge from the President on this one — if you enjoy having a country ruled by law rather than a dictator.

TSA: Forced Strip-Search No More Offensive Than Voluntarily Using a Locker Room

TSA's Motion to Dismiss Mengert Lawsuit
The TSA fails to appreciate the value of consent.

In June, my client Rhonda Mengert filed suit against the TSA for forcing her to expose herself and show them a feminine hygiene product she was wearing.  The strip-search of this 51-year-old grandmother was flatly against TSA’s own rules, yet strip-searches happen over and over at airports across the country, perhaps as a result of poor training, high turnover, failed background checks, or… well, who really knows why they can’t get it together?

What we do know from the TSA’s 24-page reply to the lawsuit (.pdf), a motion to dismiss filed Friday in U.S. District Court for the Northern District of Oklahoma, is that they don’t think they should be held responsible.  Much of their rationale is the standard technical stuff that one expects of defense lawyers and we’ll respond to that in due course.

One of their rationales, however, is so absurd, offensive, and regressive that I am shocked to see it written by anyone in 2019, let alone a well-educated woman from the U.S. Department of Justice.  In her motion, Assistant U.S. Attorney Rachael Zintgraff writes that a forced government strip-search just isn’t that big of a deal as to justify a lawsuit:

These allegations amount to no more than indignities, annoyances, and petty oppressions. Even if it was subjectively “embarrassing,” “disturbing,” “humiliating,” and “offensive,” for Plaintiff to lower her clothing and show the feminine hygiene product she was wearing, the intrusion on her privacy was no more severe than what could be routinely experienced in a women’s locker room, where states of partial undress and feminine hygiene products are subject to observation by other members of the same gender.

Is a rape victim’s trauma is no greater than they would have had during consensual sex?  Can peeping toms now use this same defense?  If not, then how can one possibly argue that having 2 uniformed federal employees force my client into a back room to show them her most intimate areas is in any way comparable to one voluntarily using a locker room?

The difference between “extreme and outrageous” and “just locker room embarrassment,” Ms. Zintgraff, is consent.  And respectfully, while I don’t personally have a lot of experience with women’s locker room etiquette, I must assume that inspecting each other’s pads is generally not a part of the experience.  At least DOJ attorneys have moved on from arguing that kids detained for weeks don’t need blankets or toothbrushes… it’s just unfortunate that they’ve now taken up selling out on women’s rights in order to avoid paying a woman who they violated.

Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be.  But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory.  I immediately filed suit.

Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”

What is “standing?”  The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.”  All that means is you have to actually have a specific legal “injury” to complain of.  A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes).  No standing = no lawsuit.

After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.

Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!”  What are the odds?  Redacted:

What are the odds? Redacted!

So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.

“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”

Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order.  In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it.  (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)

I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare.  This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons.  [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc.  Stay tuned for an update next month…]

Corbett v. TSA VI – Dismissed on Standing (.pdf)

Early Documents — Petitioner’s, Respondent’s, and Reply Briefing

Is It *Really* Impossible To Get A Gun License in NYC? (Part XI — Federal Court Refuses Challenge)

This is the eleventh installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed). 


After half a year of deliberation, United States District Judge Katherine Polk Failla has dismissed the first installment of my federal court case challenging New York City’s law allowing the NYPD to determine whether or not the citizens may exercise their Second Amendment rights (spoiler: they say no unless you bribe them or you’re connected with the department).

I like Judge Failla.  She seemed to be a thoughtful jurist, but my argument was for a change in the law that needs to be addressed by a federal appeals court.  Presiding over a federal trial court, she was bound by appellate precedent, and dismissal by her was a required step to getting to the proper federal appeals court, the U.S. Court of Appeals for the Second Circuit, which serves New York, Connecticut, and Vermont, to consider the case.

For those interested in the legal nuances, as a preliminary matter, the dismissal was predicated on a procedural issue: that my complaint framed the issues as a challenge to my denial (how the laws were “applied”), and not a challenge to the way the laws are written (a “facial” challenge).  Since my case was already decided by a state court, Judge Failla wrote that I may not have it re-heard by a federal court, an issue that only affects as-applied challenges.

Normally, this would just result in me filing an amended complaint re-framing the case as a facial challenge instead of an as-applied challenge.  Knowing this, Judge Failla saved us the time required to file the amended complaint and deal with a new motion to dismiss by giving us an “even if this were a facial challenge” version, citing the Second Circuit:

In support of his argument, Plaintiff directs the Court’s attention to case law from the Ninth, Seventh, and D.C. Circuits. (Pl. Opp. 9-10). Those circuits, Plaintiff claims, have “[struck] down nearly identical ‘proper cause’ requirements.” (Id. at 9). However, this Court is bound by Kachalsky, which is still good law in this Circuit.

Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2nd Cir. 2012), is a case out of the Second Circuit and exactly what I intend to ask that appeals court to reconsider.  In brief, Kachalsky stands for the proposition that the government may require you to give it a “good reason” to issue a gun license before doing so, even if the result is that ordinary citizens can’t exercise their gun rights. In light of the more recent precedent from other federal appeals courts, the Ninth, Seventh, and D.C. Circuits, where good reason laws were rejected, the Second Circuit will now get yet another chance to check itself when I file there shortly.

The U.S. Supreme Court prefers to hear cases whenever the federal appellate courts disagree with each other, and at this time, there is a substantial split among the circuits as to whether good reason laws are constitutional.  Given that the Supreme Court is poised to strike down another New York City gun law, preventing home licensees from transporting their guns outside of the city to go to ranges under any circumstances, perhaps now they will also be ready to take up the “good reason” issue.

Corbett v. City of New York – Dismissal Order (.pdf)

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