The federal courts have had a very difficult time figuring out how people can seek redress against the TSA, either via policy challenge or challenge to specific abusive interactions with screeners.  The Third Circuit of the U.S. Court of Appeals, which services New York armpits New Jersey, Delaware, and Pennsylvania, has taken that challenge to the next level with two decisions that work together to make it very, very hard for someone who was abused by TSA screeners to win a lawsuit.

[Edit – The media is reporting the ruling as “TSA agents can’t be sued for false arrests, abuse, or assault.”  I disagree with this conclusion.  Read on…]

Vanderklok v. United States (.pdf), 868 F.3d 189 (3rd. Cir. 2017) was, relevant to the discussion, a suit against a TSA screener himself.  The plaintiff alleged, in brief, that a TSA screener got annoyed with him and told the cops he made a bomb threat, resulting in the plaintiff’s arrest.  Vanderklok made a First Amendment claim, arguing that his words were what annoyed the screener, and therefore the screener having him arrested violated his free speech.

Constitutionally-oriented lawsuits against individual government agents are generally known as “Bivens” lawsuits, and the idea is that if the Constitution provides a right, then it implies that the courts should be able to hear a case against someone who violates those rights.  The Third Circuit took to heart the U.S. Supreme Court’s direction that lower courts should hesitate to allow new kinds of Bivens lawsuits, and thus ended Vanderklok’s First Amendment challenge.  There is a long test the Supreme Court uses to counsel as to when Bivens should be extended to another area, but the most important part of this test is whether Congress has created some other kind of remedy.  If there’s another way to sue and be made whole, Bivens isn’t necessary.  Despite it being doubtful that there was another way to sue, the Vanderklok court emphasized that “TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers,” and therefore should be off the hook for retaliation claims because they don’t know any better.  (Don’t hurt yourself trying to appreciate the wisdom in that one.)

Poorly reasoned, but fine, if there is another way to sue.  The Third Circuit resolved that issue today.

Pellegrino v. TSA (.pdf), 15-3047 (3rd Cir., July 11th, 2018) addressed the only potential other way to sue.  Relevant to the discussion, it was a suit against the TSA itself (as opposed to Vanderklok, where an individual screener was sued).  Suits against the government for money damages come under the Federal Tort Claims Act (FTCA), a law written by Congress discussing the terms under which one may use the federal courts for such a suit.  The predicate for Pellegrino’s claim was similar to Vanderklok’s: a screener, annoyed with her, had her falsely arrested by the cops.

The FTCA allows for most types of personal injury claims (including civil rights staples like assault, false arrest, etc.) so long as the injury was caused by “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests” (28 U.S.C. § 2680(h)).  However, the courts have been hesitant to find that TSA screeners are covered by this law, notwithstanding the fact that their job is literally to execute searches, because TSA searches are, in the courts’ view, different from traditional law enforcement searches.  The Eleventh Circuit tossed several FTCA claims against the TSA of mine a few years ago, holding that TSA screeners are not “officers of the United States” (despite their job title literally being Transportation Security Officer).  Corbett v. TSA, 568 Fed. Appx. 690 (11th Cir. 2014).

Today’s ruling in Pellegrino does the same, although for different reasoning.  The Third Circuit found that the language the FTCA uses implies that Congress only intended it to cover law enforcement officers, and TSA is not law enforcement.  This ruling has 2 problems: 1) Congress’ intent is only relevant where the statute is ambiguous.  It strains credulity to argue that TSA screeners are not “empowered by law to execute searches,” in my view, but the Third Circuit concluded that “searches” is ambiguous enough to need to examine Congressional intent, 2) The FTCA was written before the TSA was created, so therefore Congress could not have had intent to exclude or exclude them, and 3) since Vanderklok foreclosed Bivens suits, there is now no recourse for those injured in the ways that Vanderklok and Pellegrino were injured.

Put another way, in New Jersey, Delaware, and Pennsylvania, there is now no recourse if a TSA screener intentionally, falsely calls the cops and says you threatened to blow up the airport, because they decided they don’t like your attitude.  If you spend the night in jail because a TSA screener lied, you’ve got no lawsuit.  Not against the TSA, the TSA screener, and probably not against the cops either.

The rulings don’t directly address more traditional Bivens claims, such as one for assault or false arrest.  If a TSA screener beats you or physically restrains you, you may (may!) still have a suit in the Third Circuit.  But malicious prosecution, retaliation, defamation, invasion of privacy, emotional distress, and conspiracy to do any of the same?  Congress intended that the TSA not be held accountable for that, says the Third Circuit.

The decision was a 2-1 panel opinion, with a well-reasoned dissent to the now binding law in that circuit (long, but worth a read).  I look forward to the plaintiff’s motion for rehearing en banc (by the full Third Circuit), for which I’ll be writing an amicus brief.

The TSA’s ability to predict which travelers are terrorists and which are not is apparently so good that not only can they identify which people are possibly terrorists, but they can also predict whether those people are in a “terrorist mood” before a particular flight, or are feeling rather non-mass murder-y that day. Much like rhythm-method birth control, being able to pick out “safe days” vs. “unsafe days” allows minimal inconvenience for all parties.

For example, on January 23rd, I was definitely not in touch with my inner jihadi, and so the TSA assigned me Pre-Check status…

This morning when I woke up, I didn’t even realize that I was feeling like causing some trouble. But luckily, the TSA did, and so they assigned me “selectee” status to dissuade me from bringing any bombs on board…

If you’re not familiar, the infamous “SSSS” stands for Secondary Security Screening Selection, and is applied to travelers that are on the “Selectee List” (kinda like the “No Fly” list, except they let you fly after petting your genitals before every flight), travelers who trigger an algorithm by doing such things as buying a one-way flight in cash on the day of departure (because Al Qaida can’t afford a round-trip ticket), or at random. It’s unclear why SSSS was assigned to me today or what effect this has for a boarding pass issued at an international airport, as Stockholm didn’t seem keen to treat me any differently, but I for one can’t wait to see what harassment I get when I land in New York.

Obviously I’m being facetious in suggesting that the TSA has the technology to determine which days a dangerous individual might decide to do something bad (and, for the dense within DHS, any suggestion that on some days I might be a terrorist or consider carrying bombs on a plane is also sarcasm). If on some days we’re saying people are trusted enough that they don’t have to take off their shoes, don’t have to take electronics out for separate x-raying, don’t have to go through a body scanner, and are screened using a metal detector calibrated to be less sensitive than usual, but on other days require the most vigorous of security screening, is the system not completely broken?

As far as keeping us secure, it is certainly broken. But is the Pre-Check system really designed to keep us secure, or is it simply to funnel rich people — that is, people with the most influence over the political process — through easier security such that they may continue treating the 99% like cattle without political repercussions?

The latest invention for controlling a population in transit: meet the TSA-approved “exit portal,” or, as some call it, the “detention pod.” These little devices are installed at the exits to the secure area of the terminal and use an airlock-like system where you enter the first door, the first door closes, and then the second door opens. Syracuse Airport is the first to give them a try

The airport claims that this is so the exits can’t be used as an entrance, thus saving them the $11/hour that they used to pay to have a security guard make sure no one goes the wrong way. It’s unclear how much the portals cost and how many thousands of hours of a security guard’s salary it cost to buy them. It’s also unclear why they would use these machines instead of a pretty ordinary one-way turnstile or, as some airports already use, entirely unobtrusive sensors that detect when someone is walking in the wrong direction and sound an alarm.

What *is* clear is that these devices represent another opportunity for the TSA to violate the public. Perhaps the TSA sees you walking through the terminal and determines that you’re suspicious or. you know, your credit score wasn’t good enough. They can then lock you inside these machines for “additional screening.” What happens if there is a fire, or another terminal shooting, and people need to exit immediately? Surely there’s an “emergency mode” where the portals simply open, but does it work if the portal controller is on fire?

The TSA comes up with an impressive quantity of bad ideas. Be sure to let Syracuse Airport know that you don’t appreciate their support of this one.