After writing 24 pages on this one, I could use a few more eyes to help make sure I’m still making sense. 😉 No legal experience required — just let me know if you think the argument is compelling or could be improved (and how). The brief background is that the TSA has argued that it has the right to detain people and the right to read all of your documents when you go through the checkpoint, in addition to some jurisdictional arguments.

Corbett v. TSA – Motion to Dismiss IV Opposition – DRAFT (.pdf)
This is the main file to look at

Corbett v. TSA – Motion to Dismiss IV Opposition Declaration – DRAFT (.pdf)
Corbett v. TSA – Motion to Dismiss IV Opposition Exhibit A – DRAFT (.pdf)
These two files are referenced within the main file

Corbett v. TSA – Motion to Dismiss IV (.pdf)
Corbett v. TSA – Motion to Dismiss IV Declaration (.pdf)
These two files are the motion that I’m opposing

For any attorneys out there, replies on this blog will not be interpreted as legal advice.

Thanks for your help!

–Jon

Every week or so I get an e-mail or a comment asking about suing the TSA, either to change policy (get rid of the scanners and pat-downs) or because of personal incidents (TSA screeners assaulting them, physically or sexually, stolen goods, false charges, etc.). Many of the stories are heartbreaking and all have been wronged by the TSA. I’m happy to share what I’ve learned, but my first question is: Are you ready for the fight? Here’s what it takes, assuming you don’t have a civil rights organization representing you and paying your way:

First, there are filing fees and other hard costs: printing (sometimes courts require up to 40 copies of a document!), mailing, travel, paid research databases, etc. So far, this has totaled in the four-figures range.

But, more importantly, there are the time costs. While writing a brief that has now reached 18 pages today, I was curious how much I’ve had to write so far in order maintain these actions against the TSA. I went through my all my Word documents in my TSA lawsuit folders, and the totals are:

U.S. District Court: 189 pages
11th Circuit Court of Appeals: 121 Pages
U.S. Supreme Court: 47 pages
—
Total: 357 pages

My writer friend tells me that typical for her industry is that a page takes an hour. With the research required for legal documents, I’d double that, and that doesn’t even take into account the time it took to put to research, create, and edit the awesome videos of the nude body scanners being defeated, not to mention the $0.99 sewing kit required to take down the $1 billion scanner fleet! 😉

Taking this much time away from work is why I’m so grateful for the donations that many of you have sent, which allow me to continue to fight the TSA without ending up homeless. 🙂 It’s a strong statement about our legal system that seeking justice for something so basic as “don’t take nude pictures of me” takes so much, and I’m not even close to finished. It’s also something to keep in mind if you want to sue the TSA but don’t want to pay a lawyer to do it for you (and can you imagine how much a lawyer would have billed to write 357 pages?): if you want into the legal side, be ready to have sore wrists.

But, if you just want to fight TSA thuggery in general, there is lots to be done. People are blogging, people are making videos, people are “traditional protesting” (flyers, tables, bullhorns, soapbox, etc.), people are contacting their representatives, people are donating money, people are talking to their friends and fellow travelers, and people are standing up and saying “no” (sometimes phrased as “I opt out!”). Hitting the TSA from all angles is the way to obtain change, and ALL of these are equally important tools in the fight. If you’ve participated, thank you, and feel free to share the creative ways you’ve found to protest the TSA in the comments to inspire others.

The TSA has been tasked with finding “weapons, exposives, and incendiaries” and preventing them from making their way onto airplanes. See 49 CFR § 1540.5 (“Screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.”) and ad nauseum court decisions. To that extent, the TSA can lawfully conduct an “administrative search” for only that purpose. This means that if they’re searching in a way that is intended to find evidence of other unrelated crimes (most often, finding small quantities of drugs), they’ve exceeded their authority and are conducting an unconstitutional search with neither consent nor warrant. Courts have repeatedly slapped down evidence found by TSA searches not aimed at finding WEI as inadmissable.

Last week, the government filed a motion to dismiss my lawsuit relating to them illegally detaining me for refusing to let them grope me (now the fourth motion to dismiss so far in this case, none so far yet granted). Part of the suit was that while detaining me, the TSA went through every inch of my bags, including reading my books, credit cards, and anything else that had print on it. Naturally, this offers no value to the search for WEI, but you could see on their faces that they were so upset that someone would dare to say no to being groped that they wanted to find evidence of any crime just to “show me what happens” when people argue with their authoritah.

This motion to dismiss stated that the TSA has the right to search bags not only for WEI, but also for “identification media.” They reason that a terrorist might be using a fake ID, and therefore if they can find a fake ID in your bag, they might stop a terrorist from boarding an airplane.

This term (“identificaiton media”) is not defined in their motion or in their internal policy that discusses it. At the least, they claim ID cards, credit cards, and the like are covered. What about a bank statement, insurance bill, or official letter? Often times a DMV will ask for something along those lines as proof of your identification. How about those prescription bottles? Everything has your name on it and nothing looks “suspicious” about the pills inside, yeah? What about every other document? Might have to read it to make sure it’s not a bank statement, bill, official letter, etc. What about turning on your iPhone to see what name shows up in there? You laptop will presumably identify you and all your e-mail “aliases,” right? And what are you doing with that “suspicious” amount of cash? A terrorist might deal in cash, after all.

Make no mistake: the TSA will use this policy to justify any search of your belongings, including checking out the pictures of your wife on your cell phone, “investigating” your credit cards and bank accounts (stealing iPads was so last year, bank fraud is the new thing), and doing whatever they can to find evidence of any impropriety whatsoever, at which point the police are called. At that point, if you forgot to pay that traffic ticket, you forgot about the half-gram of medicinal marijuana you left in your pants pocket, or if you’re just generally pissed off about your rights being shredded (or in TSA parlance, “disorderly” and “interfereing with checkpoint screening”), you’re going to jail.

All this, ladies and gentlemen, is to ensure compliance. Don’t want to be groped? You better go through this radiation machine and let us take a nude picture. Don’t want the TSA up in your iPhone? They only save that search for the “troublemakers.” Just do what you’re told, don’t argue, and the TSA may let you pass.

This is truly “papers, please” — it can happen now on any mode of transportation, and if the search can include taking nude pictures of our bodies, touching our genitals, and reading our documents, there is truly no limit left on these searches. All that’s left are full strip searches and literally putting their fingers inside of us — oh wait, both have happened time and time again (from the last link: “I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia.”). There should be no doubt left that this is not “for our safety.”

As a glimmer of hope, this “identification media” reasoning has already been declared unconstitutional by a federal judge! In US v. Fofana, the TSA had a man arrested after going through his bags and finding additional passports, then reading the passports and determining that they were fake. There was no possiblity that reading the passports would have resulted in discovering a bomb, and the TSA used the same “could have been someone other than the person he claimed to be” justification. U.S. District Judge Algenon L. Marbley suppressed the evidence, noting that the TSA “went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing.” However, the TSA apparently feels it can ignore the courts, as it did in the EPIC case.

Corbett v. TSA – Motion to Dismiss IV
Corbett v. TSA – Motion to Dismiss IV (Memorandum in Support)

I just filed my opposition to the TSA’s motion to dismiss my lawsuit for illegally detaining me in FLL airport. The TSA’s motion, as to be expected, was full of contradictions, failures at logic, and other absurdities. For example, in order to avoid liability under a statute that creates a cause of action against “any officer of the United States who is empowered by law to execute searches,” they argued that TSA screeners are not empowered to execute searches. (My response was substantially: “Great! Then I can ignore them when I see them in the airport, right?”)

But perhaps what stood out the most was their assertion that they constitutionally detained me. They freely admit that screeners are not law enforcement and have no power of arrest, but at the same time argue it was totally cool for them to hold me — because it was brief.

Either one has powers of arrest or one does not. It doesn’t become “ok” simply because you do it briefly. Once again, the TSA has asked the court to carve out a new exception to the law to allow for its thuggery. Here’s to hoping that U.S. District Judge Joan A. Lenard gives them the bench-slap that they deserve.

Corbett v. TSA – USA & TSA’s Motion to Dismiss (.pdf)
Corbett v. TSA – Opposition to USA & TSA’s Motion to Dismiss (.pdf)

The government has filed notice with the U.S. Supreme Court that they will not be responding to my petition for certiorari. Essentially saying that they either don’t care or don’t think there’s a chance the court will grant my petition, the court will now decide whether they will hear my case based on my petition alone. There is no timeframe — it could happen on Monday, or it could be a few months.

If you’ve been following along for a while, you know that I have a lawsuit against the TSA for unlawfully detaining me at FLL airport after I told them they couldn’t “touch my junk,” in addition to the lawsuit that’s now sitting at the US Supreme Court which hopes to ban the scanners and the groping. After the FLL incident, I requested, via the Freedom of Information Act, the checkpoint videos of the TSA illegally holding me for one hour. I eventually got responses from all parties who could have possibly had the videos saying that no video exists:

This despite signs at the checkpoint that say, “Checkpoint under video surveillance” and at least 14 visible camera domes at the checkpoint. Eventually, the truth came out: Broward County has (or at least had) the videos, but formally lied to me “for security purposes.” Follow this logic: there are signs that say there is video being taken, there are more than a dozen visible camera domes, and every idiot expects they are being video taped while inside an airport, but the TSA and Broward County think that, for security reasons, they can’t admit to having a video of me at their checkpoint.

Or, you know, maybe Broward is lying about that too, since the more likely explanation is that they hid the video evidence of the TSA telling me that I could not leave the security checkpoint when no lawful authority to hold me exists (remember, the TSA screeners are not police officers, and even a police officer needs probable cause to detain you).

So, naturally this violation of the FOIA is a part of my lawsuit, and Broward has now twice asked a judge to dismiss these claims because the TSA and Broward feel that they have the legal right to lie to the public, so long as they think it’s in the interest of security (their first motion was denied for procedural reasons). But, we can’t actually call it a “lie” since that would make them feel bad about their false statements:

What kind of democracy would we be in when the government is allowed to lie to its citizens? How can we meaningfully exercise our constitutional rights to vote, petition our government for redress, and due process when the government not only hides from us the facts, but affirmatively says the exact opposite of the truth?

Luckily, there is no precedent for allowing deception in FOIA responses based on a designation of “sensitive security information,” and I do fully expect the judge to slap down Broward’s motion. The best they can lawfully do, if there were legitimately a security concern about disclosing the existence of the videos, is to have simply said, “We can’t confirm or deny if a record exists.” Lying is simply unjustifiable, and it’s truly sad that a judge has to tell them that lying to the public is wrong.

Corbett v. TSA – Broward’s Second Motion to Dismiss (.pdf)
Corbett v. TSA – Plaintiff’s Opposition to Broward’s Motion (.pdf)