Author: Jonathan Corbett

Jon Corbett is a civil rights attorney known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in "How to Get ANYTHING Through TSA Nude Body Scanners." Twitter: @_JonCorbett, Web: https://professional-troublemaker.com/

Appellate Preliminary Injunction Fully Briefed

“[T]he American public does not and should not defer to anyone that demands to sexually assault them and their families”

On Friday I mailed in my reply to the gov’ts opposition to my motion for a restraining order in the 11th Circuit. This will be heard by a three-judge panel, and unless they ask us for more information or to come in for oral arguments, they’ll decide based on the paperwork they have now.

Corbett v. US – Appellate PI Opposition (.pdf)
Corbett v. US – Appellate PI Reply (.pdf)

PS – For anyone who’s interested in my previous post, I filed a Notice of Claim with the city today. In New York, the first step to suing a government entity is a Notice of Claim, which is basically sending them a bill and letting them know that if they don’t compensate you, you’ll sue. Since federal civil and constitutional rights were implicated, I could sue in federal court without waiting, but I wanted to give the city a chance to settle. I gave them a deadline of July 20th, at which point I’ll file the actual suit in US District Court in Manhattan.

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Searches without Reasonable Suspicion: TSA v. NYPD

I was visiting a friend this evening in Brooklyn. Heading back to the subway required me to pass through a well-lit, somewhat busy, safe-feeling neighborhood which happened to be almost exclusively inhabited by black people. I’m a white guy, but not a problem, right?

On my way, I stop in a deli to grab a bottle of water, and when I come out, I’m confronted by 4 of New York’s Finest, undercover, asking to speak with me. They want to know where I’m coming from and where I’m going to, or as one of them put it, “what [I was] doing in this neighborhood,” all of which I politely decline to answer and ask if I’m being detained or if I’m free to go. Being in federal court already over a 4th Amendment issue, you would be safe to assume that I’m pretty knowledgable on my rights and what I’m required to answer and what I’m not.

The officer responded that I was being detained.

I was then searched by one of the officers, with whom I clarified that I was not consenting but would not resist, to which he responded that he didn’t need my consent. This is known in the legal world as a “Terry” search, after a Supreme Court case which authorized police to do an extremely limited pat-down to search for weapons if they have a reason to believe a person they are talking to is armed and dangerous (I’m a 150 lb. guy with a water bottle surrounded by 4 men with guns who probably totaled 6 times my weight).

The officers exceeded their boundraies by 1) detaining me without cause (other than my race, which I presume must have meant to them that I could only be in that ‘hood to buy drugs), 2) conducting a Terry search when there was no reason to believe that I was armed or dangerous, and 3) by exceeding the boundraies of a Terry search by feeling the contents of my pockets beyond what would be needed to determine the presence of a weapon.

However, the search was still less intrusive than any search I’ve seen the TSA do since November 2010.

The officer did not “touch my junk,” he did not do “a waistband check,” and even though he was basically touching my ass, you could tell his intent was on the contents of my pocket rather than simply to touch my ass because that’s what all TSA screeners are told to do. He didn’t pat down my face or my hair, and he didn’t even ask me to take my shoes off.

If a law enforcement search is less invasive than a TSA search given to anyone who declines to let the government photograph them nude, do we not have a problem here?

After a few more minutes of badgering and threatening with arrest for not answering questions and not producing my ID, I was told to “have a nice night.” Two letters off from what the TSA says after they molest someone.

–Jon

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Greetings from the 11th Circuit Court of Appeals!

I filed today a Notice of Appeal in US District Court, as well as a motion for a preliminary injunction in the US Court of Appeals for the 11th Circuit.  The appeal is of the decision to dismiss the case for lack of jurisdiction, and will ask the court (when I file my opening brief) to reverse the ruling that my complaint can’t be heard in District Court and remand back to the original judge.

I’m quite excited about the appeal generally, but particularly the preliminary injunction.  Back when I filed in District Court on 11/16/2010, I also filed a preliminary injunction, but the core of the argument was never heard because everything was clouded by this issue of jurisdiction.  Here in the circuit court, I shouldn’t have that problem.  If the court decides that I was right and the District Court did have jurisdiction, the Circuit Court can issue the injunction under its appellate jurisdiction.  If the court decides that I was wrong and the District Court does not have jurisdiction, it’s the Circuit Court that has original jurisdiction.  Either way, the court can issue a preliminary injunction, and finally a court will consider the constitutionality of nude body scanners and molestation pat-downs.

I haven’t yet been assigned a Circuit Court case number (the District Court now sends my Notice of Appeal to the Circuit Court, and when they process that, I’ll get a case number), but I’ll post that along with my opening brief within the next couple of weeks.

Case documents:

Corbett v. US – Notice of Appeal (.pdf)
Corbett v. US – Appellate PI (.pdf)

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Case Dismissed, On to the 11th Circuit!

US District Judge Marcia G. Cooke today dismissed my case, saying that “without having been provided a copy of this unpublished statute or regulation [the SOP], I am unable to conduct any meaningful inquiry as to the finality of the Screening Checkpoint SOP” and “this argument would be better addressed to the Eleventh Circuit Court of Appeals.”

As brief background for those of you at this blog for the first time, the government replied to my lawsuit against the airport nude body scanners and molestation procedures by saying that anything the TSA “orders” is not reviewable by US District Courts, and rather all cases must be filed in the Court of Appeals.  The reason the TSA wants this is because in the Court of Appeals, there is no jury, no discovery, and I don’t get to present evidence — essentially, the court would take the TSA’s word on issues of fact.

With no disrespect intended to the Hon. Judge Cooke, I find this to be a bit of a cop-out (essentially, “I couldn’t decide, so I’ll dismiss the case and let the higher court deal with it”),  though I am happy to appeal this dismissal to the 11th Circuit, and will do so as soon as possible.  Note that this is appealing the decision that there is no jurisdiction, not transferring the case to the 11th Circuit.

The appellate process is expensive (the filing fee is $450 alone!) — if you would like to donate to this cause, please feel free to send donations by PayPal to jon [at] fourtentech.com.

This fight is only beginning.

Corbett v. US – Dismissed (.pdf)

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TSA Ignores Complaints During Pilot Program

In 2009, the TSA ran a pilot program for the nude body scanners in a handful of airports, and as a result of their “great success” decided to roll out the plan en masse. However, what didn’t come out until 2011 is that at least 100 people sent the TSA complaints about the intrusiveness of the new search regime during the 2009 pilot program. At the start of 2011, we now face about 100x as many body scanners as we did at the start of 2009. Openness and honesty are lacking, and it took a lawsuit by EPIC to reveal these complaints.

Please find the voices of the ignored below, with thanks to EPIC for providing to us…

EPIC v . DHS – Administrative Record – Complaints

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Six Year Old Girl Molested by the TSA – Video

Videos like this simply shouldn’t exist.  It seems morally offensive to post them, but it is a greater moral offense to put them aside and let more children be touched like this.

http://www.youtube.com/watch?v=vtOMPbooFzU

[Edit: It appears the mother of the child has taken down the original video, but another person has put it online at: http://www.youtube.com/watch?v=-3sH1GaO_nw ]

The poster of the video claims to be the child’s mother, who says she was threatened with jail if she did not allow the screeners to molest her child.  As you may know, the TSA has no power of arrest, and therefore making such a false claim would appear to be illegal coersion.  I’ve forwarded the video to the Louisiana State Police — cid_neworleans@dps.la.gov — and anxiously await a response.

This is what we’re fighting against.

[Edit 2 – Now featured on Drudge Report!  See below.]

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Are We Doing All We Can?

No update on the lawsuit today, but a question for you all: Have you talked to *everyone* you possibly can about the problems relating to the TSA?  The courts may decide to halt the body scanners and molestation, eventually, but the fastest way is to have an angered population demand changes from our representatives.

We are the frequent flyers, the rights advocates, and the people who understand why what’s going on is a problem.  Not everyone does, and that’s holding us back.  Most Americans don’t fly often, and so they don’t really care, because they don’t understand what’s going on.  They don’t understand that when we say the pat-downs are molesting our families, we actually mean that the government is touching their genitals.  They don’t understand that a “body scanner” essentially creates a 3D, black & white image of your nude body.

But most importantly, they don’t understand that none of this actually makes us any safer.  A metal detector will alarm if I place a firearm in my ass, while neither a nude body scanner nor a pat down will help.  A metal detector will alert a sleeping TSO to a problem, where a nude body scanner will allow the TSO to continue his snooze.  …and neither a metal detector, nude body scanner, nor pat-down will solve the problems created by not scanning vendors, not scanning all checked luggage, and the gaping holes in the TSA’s hiring practices that allow criminals to run checkpoints (and touch your children).

Please take some time to educate your family, friends, and random strangers about what is going on here.  Devote a Facebook status to it, put up a flyer on your company’s poster board, and talk with your fellow passengers while waiting in the long security lines in the airports.  If you haven’t contacted your representatives yet, please do so, but contacting your personal network is just as important.

–Jon

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No Temporary Restraining Order

The US District Judge on my case today adopted the magistrate’s recommendation and denied my request for temporary relief, in a one-page order.  Interestingly, the judge has not yet ruled on the motion to dismiss, which I almost expected would happen before the ruling on the TRO (if you’re planning on dismissing the case, there’s no point in responding to other motions).

This is definitely a setback for us, and means that the DoJ will try to drag this case out for as long as possible.  However, the motion to dismiss is the real thing to watch, and will almost certainly be appealed whether it is granted or denied.  I will keep you all updated.

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Briefed: Blitz, Redfern, and Corbett

Today, Jonathan Blitz filed his reply to the government’s motion to dismiss in his case, so we now have 3 cases in US district courts ready to rumble on the issue of jurisdiction.  

Corbett v. US, 10-CV-24106, SDFL 11/16/2010 (11th Cir.)
Redfern v. Napolitano, 10-CV-12048, MAD 11/29/2010 (1st Cir.)
Blitz v. Napolitano, 10-CV-930, MDNC, 12/03/2010 (4th Cir.)

Blitz is a brilliant guy, and I’ve attached his public filing here, as it’s a great read.  The next cases to get to this point will be in the DC and CO (10th Cir.), and I’ll update everyone as the public filings are made. 🙂

–Jon

Blitz Opposition to Motion to Dismiss (.pdf)

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Objection to R&R Filed

I filed my objection the the R&R today (see the previous post). This filing is my opportunity to convince the district judge that the recommendation issued by her magistrate judge was, well, poor, short-sighted, lacking in thoroughness, and overstepping its bounds.

This is the first time I’ve ever written an objection to an R&R, and it puts the author in a precarious position. On one hand, if I don’t strongly and clearly object, the R&R will be adopted and I’ll lose my motion. On the other hand, the magistrate is an officer of the court just as the district judge is, and for all I know they’re best friends, so any criticism must be delivered as respectfully and tactfully as possible.

The TSA has until Friday to file their own objection, which I don’t really expect them to do. After that, the district judge may rule at any time, so we’re looking at as early as Monday, but more likely several weeks from now.

Corbett v. US – Objection to R&R (.pdf)

The objection lists 5 exhibits which are not in the document. They are:

A – http://abcnews.go.com/Travel/miami-airport-tsa-officer-charged-assault-manhood-jokes/story?id=10583691
B – http://www.flyertalk.com/forum/travel-safety-security/1157130-tattoos-visible-body-scanner.html  (post #3)
C – http://www.usatoday.com/news/washington/2011-03-04-bodyscans04_ST_N.htm
D – http://www.wbtv.com/Global/story.asp?S=14142489
E – http://www.wate.com/Global/story.asp?S=13407686

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