Month: December 2019

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)

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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)

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