Search

Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

Category

TSA – Lawsuit

Supreme Court Declines To Consider Whether Travelers Have Standing to Challenge Random TSA Searches

After 5 years, my challenge to whether the TSA can disallow “opting out” of the body scanners has concluded with the U.S. Supreme Court refusing to hear the case.  The details of the case and the issue presented to the Supreme Court are well covered in a post earlier this year, so I won’t repeat them here.

The Supreme Court is busy, but it’s a bit disappointing that they didn’t take up this case, which raises a serious question as to when the citizens have standing to challenge infrequent or random searches — a question that the Eleventh Circuit approaches differently than any other Court of Appeals in the country.

The door is still open to anyone who wants to sue after being denied an opt-out request, but challenges exist there as well, and frankly, it is sad that the citizens have to wait to actually be violated by their government before they can ask the government to be enjoined from abuse.  That said, if you’ve recently asked to opt out of the body scanners in favor of a pat-down, but TSA has refused, please be in touch and I would gladly consider your case.

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)

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)

Supreme Court Petition Filed: When TSA Searches Travelers at Random, Do All Travelers Have Standing to Challenge the Practice?

This summer, I wrote that the U.S. Court of Appeals for the Eleventh Circuit denied my challenge to the TSA’s decision to refuse to allow “some” travelers to opt out of the body scanner in favor of a pat-down.  Their reasoning was simple: that the “some” travelers selected at random for this special treatment happened rarely enough that I couldn’t show it was “substantially likely” to happen to me.

The problem with the Eleventh Circuit’s logic is that the U.S. Supreme Court has never required a “substantial likelihood of injury.”  What the Supreme Court required was “a likelihood of substantial injury, and the Eleventh Circuit, for the past 2 decades, has, on its own, moved that word “substantial” to modify “likelihood” instead of “injury.”

“The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a “likelihood of substantial and immediate irreparable injury.””

Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

To hold otherwise would preclude the courts from ever enjoining unconstitutional government action — no matter how egregious — so long as the government does it to few enough people in an unpredictable way.  That’s not what the Supreme Court has said, nor is it what any of the other U.S. Courts of Appeals have understood the law to be.  (If you’re interested, my petition explores the correct standard and those used by the other circuits).

The Supreme Court takes only a tiny fraction of the cases presented to it, so the odds are against us here, but I am hopeful that because the Eleventh Circuit has pretty blatantly departed from every other court at its level, there is a chance they might take this one up.

Corbett v. TSA – Petition for Certiorari (.pdf)

TSA: Forced Strip-Search No More Offensive Than Voluntarily Using a Locker Room

TSA's Motion to Dismiss Mengert Lawsuit
The TSA fails to appreciate the value of consent.

In June, my client Rhonda Mengert filed suit against the TSA for forcing her to expose herself and show them a feminine hygiene product she was wearing.  The strip-search of this 51-year-old grandmother was flatly against TSA’s own rules, yet strip-searches happen over and over at airports across the country, perhaps as a result of poor training, high turnover, failed background checks, or… well, who really knows why they can’t get it together?

What we do know from the TSA’s 24-page reply to the lawsuit (.pdf), a motion to dismiss filed Friday in U.S. District Court for the Northern District of Oklahoma, is that they don’t think they should be held responsible.  Much of their rationale is the standard technical stuff that one expects of defense lawyers and we’ll respond to that in due course.

One of their rationales, however, is so absurd, offensive, and regressive that I am shocked to see it written by anyone in 2019, let alone a well-educated woman from the U.S. Department of Justice.  In her motion, Assistant U.S. Attorney Rachael Zintgraff writes that a forced government strip-search just isn’t that big of a deal as to justify a lawsuit:

These allegations amount to no more than indignities, annoyances, and petty oppressions. Even if it was subjectively “embarrassing,” “disturbing,” “humiliating,” and “offensive,” for Plaintiff to lower her clothing and show the feminine hygiene product she was wearing, the intrusion on her privacy was no more severe than what could be routinely experienced in a women’s locker room, where states of partial undress and feminine hygiene products are subject to observation by other members of the same gender.

Is a rape victim’s trauma is no greater than they would have had during consensual sex?  Can peeping toms now use this same defense?  If not, then how can one possibly argue that having 2 uniformed federal employees force my client into a back room to show them her most intimate areas is in any way comparable to one voluntarily using a locker room?

The difference between “extreme and outrageous” and “just locker room embarrassment,” Ms. Zintgraff, is consent.  And respectfully, while I don’t personally have a lot of experience with women’s locker room etiquette, I must assume that inspecting each other’s pads is generally not a part of the experience.  At least DOJ attorneys have moved on from arguing that kids detained for weeks don’t need blankets or toothbrushes… it’s just unfortunate that they’ve now taken up selling out on women’s rights in order to avoid paying a woman who they violated.

Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be.  But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory.  I immediately filed suit.

Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”

What is “standing?”  The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.”  All that means is you have to actually have a specific legal “injury” to complain of.  A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes).  No standing = no lawsuit.

After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.

Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!”  What are the odds?  Redacted:

What are the odds? Redacted!

So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.

“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”

Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order.  In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it.  (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)

I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare.  This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons.  [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc.  Stay tuned for an update next month…]

Corbett v. TSA VI – Dismissed on Standing (.pdf)

Early Documents — Petitioner’s, Respondent’s, and Reply Briefing

Justice is Slow: TSA Case Waiting 2 Years, Gun Rights Case Now 5 Months

Fully Briefed in 2017

I have two significant cases pending at the moment:

My readers regularly ask me (in comments, on Twitter, by e-mail, etc.) for updates, and my answer is always the same: I’ll post them as soon as I have them.  The gun rights case above has had the government’s motion to dismiss pending before the court, fully briefed (that is, all parties have been completely heard and we are just waiting on a ruling), for 5 months.  Especially considering the government shutdown earlier this year, that’s not abnormal.

However, yesterday marked the 2 year anniversary of the TSA case being fully briefed before the U.S. Court of Appeals for the Eleventh Circuit, which has neglected the case for that amount of time.  This is not the usual amount of time to wait on an appeal, so I sent that court an anniversary card this afternoon.  I wouldn’t exactly say that courts “appreciate” reminders that they are taking too long, but at some point, the prejudice to my case and our rights outweighs the risk of offending a judge’s feelings.

There is no statutory limit to how long a court can take, although courts often rule within 6 months because they have to report to Congress when cases take longer.  Be patient with me — and I promise I’ll post updates as they come.

 

DHS to Expand Security Interviews on International Flights?

Security Interview Sticker
Well-Behaved Travelers Get a Sticker After a Security Interview!

I was almost booted from a Christmas 2014 flight from London to New York for refusing to answer questions posed by airline staff (not customs) about what I would be doing in my “destination” (a.k.a., my home), and I was clearly told that failure to participate in their “security interview” would result in denied boarding.  After the flight, I sued the U.S. Department of Homeland Security, who encouraged several foreign-flagged airlines at several “airports of interest” to implement these policies.  The U.S. government immediately backtracked, saying in court that interviews were not mandatory and could not result in denied boarding — that these airline employees were mistaken.

That front has been quiet for the last year or so, until the media yesterday reported that airlines are increasing security for U.S.-bound flights starting today, including “security interviews:”

New security measures including stricter passenger screening take effect on Thursday on all U.S.-bound flights to comply with government requirements designed to avoid an in-cabin ban on laptops, airlines said.

Airlines contacted by Reuters said the new measures could include short security interviews with passengers at check-in or the boarding gate, sparking concerns over flight delays and extended processing time.

As it would be trivial for someone with bad intent to invent a story about where they were going, or simply leave off the part of their plans that involves blowing stuff up, the airlines are, apparently, displeased with this nonsense:

“We see this as a big issue for China Airlines,” Steve Chang, senior vice president…

It’s just inconvenient for the passengers,” [Korean Airlines] President and Chief Operating Officer Walter Cho told Reuters in Taipei.

“Unilateral measures announced without any prior consultation… That is something that is very concerning and disturbing.” [Alexandre de Juniac, CEO of IATA (International Air Transport Association)]

So what happens when a passenger refuses to participate in the security interview this time?  Well, it just so happens that I’ll be on an inbound flight quite soon, so we’ll see, as I certainly won’t be participating, and I guarantee a lawsuit in 24 hours or less if denied boarding.

Update: DL inbound flight today, “interview” consisted of making sure I packed/watched my bags.  Nothing new here except it was asked at the gate. Will look forward to hearing experiences by other travelers.

Fully Briefed: Can TSA Refuse Body Scanner Opt-Outs?

This blog began in 2010 to document my lawsuit against the beginning of the TSA’s body scanner program.  From that time until 2015, the body scanner was “optional” for all passengers — so long as you didn’t mind being molested by a blue-gloved screener during their “full-body pat-downs.”  This was part of the reason that no court has struck down these body scanners as unconstitutional: because, they say, passengers are consenting to use them (even though that “consent” is coerced by offering the alternatives of “let us touch your junk” or “don’t fly”).  But, at the end of 2015, the TSA announced that they would reserve the right to refuse to allow these body scanner “opt-outs” at their discretion, and I immediately filed suit.

There are two really interesting issues in this case that I hope may cause a wrinkle for the TSA:

  1. The original body scanner rule in 2010 was issued without “notice-and-comment rulemaking,” a procedure required by Congress whereby agencies that make rules first have to ask the public for input.  The U.S. Court of Appeals for the D.C. circuit ruled that the TSA violated this procedure and, although normally that would require them to stop enforcing the rule (i.e., stop using the body scanners), the Court, fearful that the body scanners actually protect us, simply ordered the TSA to take comment after the fact.  The new body scanner rule limiting opt-outs was also issued without public comment, and I’ve asked the court to, this time, put some teeth into forcing the TSA to actually follow procedure before issuing a rule.
  2. The TSA is arguing that it needs to be able to force some passengers through the body scanner because, they allege, it is more secure than a full-body pat-down.  But, this is objectively untrue.  Besides the fact that I proved the scanners to be beatable in 2012, think about this: if one alerts a body scanner, the result is… a pat-down of the area of the body that generated the alert!  How could this possibly be more secure than a full-body pat-down that would have touched that area of the body and more?  The function of the body scanners is to narrow down those people who do not need to be patted down to save time, not to make a pat-down more secure.  Body scanners don’t find weapons — pat-downs do.

tsa_is_absurd

This case lives in the U.S. Court of Appeals for the Eleventh Circuit, and the procedure for cases there is a written brief filed by the person filing the case, an opposing brief filed by the other side, and then a reply brief again by the filer, after which the court may rule on the case.  Yesterday I submitted my reply brief after nearly a year and a half of delay, and so, the case is now “fully briefed,” meaning the judges can decide it at any point (or can ask for the parties to argue in-person, or can ask for more evidence, or, basically, whatever they want).  Realistically, I expect it more likely that they will decide without in-person arguments, probably towards the end of the summer.  I’m not holding my breath — the game is rigged, and the TSA gets almost complete control over what evidence the court sees, some of which I don’t even get to see (wouldn’t want the public to see things like how often their testing shows the body scanners miss a weapon, because that would be, well, embarrassing).

Corbett v. TSA IV – Reply Brief (.pdf)

Corbett v. TSA IV – Appellee Brief (Redacted) (.pdf)

Corbett v. TSA IV – Opening Brief (article)

Blog at WordPress.com.

Up ↑