U.S. District Court: TSA Not Immune in Right-to-Film Lawsuit

TSA says right on its Web site that photo and video at the checkpoint is no problem, so long as you’re not in the way and not trying to capture the content of their computer screen. It’s also a First Amendment right to record government officials doing their work in public, as has been affirmed time and time again. So why was my client, who simply wanted to capture his husband’s pat-down on their cell phone camera, told by a TSA supervisor at Richmond International Airport that not only must they stop, but also delete the video that they started to take?

Probably some bad training, probably some bad attitude, but regardless, U.S. District Judge John A. Gibney, Jr., in the Eastern District of Virginia, wasn’t having it, and today denied TSA’s motion to dismiss on qualified immunity grounds, as well as rebuffing TSA’s attempt to preclude Bivens remedies from being applied to checkpoint abuse.

Bivens is the landmark case allowing for money damages for some constitutional violations, most often for Fourth Amendment search-and-seizure abuse. The U.S. Supreme Court has shown some hostility towards using Bivens in other contexts, recently calling it a “‘disfavored’ judicial activity” and requiring courts to accept pretty much any reason that might suggest that Bivens remedies should be disallowed as good enough to disallow it. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). And here, TSA argued them all: that it would harm national security, interfere with their ability to do their job, and cause great hardship in their screener training process. But making TSA screeners follow the Constitution doesn’t implicate some kind of state secrets, and regarding training, well:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

…or in other words, if TSA isn’t already training their employees to follow the Constitution, now would be a great time to get started with that.

Regarding qualified immunity — the idea that government officials should get a pass if the courts hadn’t already made clear that similar conduct was illegal — the court had no trouble concluding that TSA is not “special:”

“[T]he First Amendment protects the right to record government officials performing their duties … to enable any citizen at any time to bring the government and any person in authority to the bar of public opinion …

In addition, when we protect the right to record public officials, we protect against the degradation of various other constitutional rights. This country’s racial unrest highlights this principle. Because a cell phone video captured George Floyd’s death, the world watched. The world’s reaction to this video — and others — sent millions into the streets in protest. Although the racial reckoning continues, this video and the protests it sparked bent ‘the arc of the moral universe … towards justice.’ Dr. Martin Luther King, Jr., Remaining Awake Through a Great Revolution (Mar. 31, 1968). What if the officers had ordered the video that captured George Floyd’s death deleted?”

It certainly makes this civil rights lawyer warm and fuzzy to have a judge quote Dr. King while a ruling in his favor.

Dyer v. TSA – Motion to Dismiss, Denied (.pdf)

9 thoughts on “U.S. District Court: TSA Not Immune in Right-to-Film Lawsuit

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  1. I’m a commercial airline pilot. Literally could sit up front in the flight deck on ANY airline in the United States, including FedEx or UPS. I have been a SSSS for the last 3 weeks with no end in sight while they investigate. Investigate what you might ask? I have no idea. They won’t tell me. Usually pilots enter the secure area through the exit, but not me. I can’t even request a pat down as opposed to the cancer machine they force me to use. My friends (co-workers and local TSA agents) tell me in secret how they have flagged me as a domestic terrorist. They warn the entire airport before I even arrive at the terminal. At what point does an investigation become harassment?

    Please HELP

  2. A little good news. It must be one of the most miserable jobs in the world–you work is despised by many, the pay is lousy, morale terrible and if you’re honest you know a lot of it is worthless anyway. But that’s no excuse to be a jerk. One time when randomly picked for the nude machine I as usual refused, and was sighing from the massage when the TSO went ballistic. They got someone else. This is a sad place.

  3. Disagree that the pay is lousy- especially if you promote. It pays decent for only requiring a hush school diploma and a clean background

  4. 2nd sentence is incorrect:
    It’s also a Fourth Amendment right to record government officials doing their work in public, as has been affirmed time and time again.

    It should read:
    It’s also a First Amendment right ….

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