My appeal is now in the hands of the court.  The documents the court will consider are below (the bottom two of which are new):

Corbett v. US – Record Excerpts (.pdf) – A compilation of District Court documents
Corbett v. US – Appellant’s Brief (.pdf) – My appellate brief
Corbett v. US – Appellee’s Brief (.pdf) – The TSA’s appellate brief
Corbett v. US – Reply Brief (.pdf) – The last word — my reply to the government’s brief

There’s no set timeframe in which the court must rule, but a typical wait would be a month or two.  I’m feeling rather neutral about our chances of success.  A lot of great arguments for the appeal were submitted to the court, but then again, a lot of great arguments were made in the District Court that went ignored.  I’ll update you guys as soon as I hear something!

–Jon

I went to EWR today to I thought were NoS-safe gates, but a new MMW ATD had been installed and was being used as primary for all passengers. I had specifically paid more and taken a less comfortable aircraft because I thought these gates were NoS-free.

When I arrived at the checkpoint, I noticed an abundance of 2- and 3-stripe TSA screeners, which to me signaled likely BDO usage. I wasn’t asked any questions other than how I was doing. The line was extra long, and multiple passengers were complaining that they were going to miss their flights. The reason, of course, was that NoS was being used as primary. One line, and nearly all passengers directed to it.

So, I braced myself for having to deal with Port Authority police, who aren’t generally known for being friendly. I was directed to the NoS and opted out. I walked through the metal detector without alarm (which I think was just because the WTMD was in the way, not because they wanted to screen me with it), and was brought over to the “yellow feet” mat by a friendly older guy. He proceeded to explain that he’d be rubbing his hands on my ass and also would be running his hands “pretty high up on [my] inner thigh.” I told him that I consent to being searched, but do not consent to having my genitals or buttocks touched. He tells me that won’t work, and then tells me it’s not “really” the genitals he’ll be touching. I explain that if he moves my hand up my inner thighs that he’ll reach my balls, and he goes to find a supervisor.

A supervisor (STSO) comes over and starts off with the classic, DYWTFT (“Do you want to fly today?”), to which I tell him, “No, not if it means my rights will be violated.” I could tell by the blank stare on his face that apparently “no” wasn’t a response he often received. After a few moments, he tells me he’ll have to call a cop, and I tell him that he should definitely “call a LEO, and the TSM as well.”

STSO: “A TSM?”
Jon: “Yes, a TSM.”
STSO: “What’s a TSM?”
Jon: “A TSM, a Transportation Security Manager.”
STSO: “I am the manager here.”
Jon: “No, you’re an STSO. The TSM is your boss. I want the TSM.”
STSO: *more blank stare* *goes to get the TSM*

While he’s fetching the TSM, a couple of other assorted-rank screeners ask me why I’m doing this, why I went to the checkpoint knowing the policy if I would just refuse, and why I should just go through the NoS. I give them basics about rights, safety, and efficacy. Nothing special, until STSO Melissa Laughery vomited up the following gem:

“After 9/11, you give up all your rights at the checkpoint!”

Surrounded by about 7 screeners at this point and shocked at the absurdity, I repeated her loudly:

“After 9/11, we have no rights at the checkpoint?! Did everyone else hear this? It’s nice to hear how the TSA thinks of our rights.”

I see a man in a suit approch behind Mel, and brush her aside to say hi to TSM Thomas Willoghby. We briefly clarify the situation, and he tells me if I don’t want to be screened, I can leave. I re-state that I’m willing to be screened, just not molested, but if that’s not possible, I’ll go. So, I go. No cop, no retaliatory search, nothing.

But, as I’m leaving, the other TSOs ask him why he’s just letting me go. He explains to me that the new policy is that if someone declines a pat down, they’re just sent on their way. Could it be that after a certain incident in FLL, the TSA has changed the way they deal with double opt-outs?

One more note: American Airlines would *NOT* re-accommodate my flight, despite having free space on another flight from a nearby airport. After the previous incident at FLL, USAir was happy to re-accommodate. I tried to explain to the AA supervisor the “flat tire rule,” but he claimed AA does not follow this long-standing air travel doctrine, and demanded over $500 to catch the other flight. I will be talking to AA customer relations tomorrow about this, and in the meantime re-booked on USAir.

In case you’ve been wondering what happened to my 11th Circuit appeal in the lawsuit that started this blog, it was dismissed 2 months ago for a missing document, after the clerk’s office told me they had everything. It’s still my fault (should never trust the clerk! ;)), but today my motion to re-instate was granted, and the government’s appellee’s brief is due on October 24th, 2011.

I have to review the rules to see if I get an opportunity to reply to their brief or not, and additionally, the judges can request to have a hearing for oral arguments, if they so choose. But, it looks like we’re on track for an appeals decision by end of year. A decision in my favor sends the case back to the District Court to proceed, while a decision for the smurfs will prompt me to ask for Supreme Court review.

Disclaimer: This post is intended to show how *I* dealt with a FOIA situation with the federal government, and is not intended as legal advice. I am not an attorney, and I am certainly not your attorney.

I got my first reply to my FOIA request regarding my false arrest and detention in FLL, and noticed my claim number assigned was “TSA11-0859.” This leads me to believe that my request is #859 to the TSA for the year, which suprised me as incredibly small. So, I’d like to share how I filed my request in case you have something you’d like from the TSA and want to see how someone else went about requesting something.

I mailed in the request 3 days after being abused by Transportation Security Manager Alejandro Chamizo. Timing is important — if you wait more than a month, the security camera tapes are probably overwritten.

I received a reply back saying the request was received 16 days after I mailed it, that they might charge me fees, and that I needed to submit an affidavit affirming my identity since some of the records I requested can only be released to the person who is in the records (me).

My reply includes the affidavit (which next time, I would include with the original letter), a note that they received it only 4 days after I sent it according to the post office, and a request to waive the fees, hurry up, and don’t forget anything!

Corbett v. TSA – FOIA Request (Initial request)
Corbett v. TSA – FOIA Response 1 (Their response to me)
Corbett v. TSA – FOIA Reply 1 (My response to them)

Within the first document, you also get a look at my FTCA claim, which is necessary under most circumstances for suing the federal government (notable exception: constitutional violations). Since I’ll be claiming constitutional violations in addition to other (state-law) claims, I needed the FTCA claim.

Update: A reader claiming to be a TSA employee claims that he has reviewed the list of TSMs at FLL, and that Mr. Chamizo is not on it. For clarity, I was told by a uniformed TSA screener that the man was a TSM, and his clothing and demeanor seemed congruent with that. I will continue to update when I receive new information.

Update 2: Broward County has confirmed for me that Mr. Chamizo is NOT a county employee. Until I see evidence otherwise, I stand by my original statement of TSA TSM (or similar position).

I went through much of the audio today that I recorded at the FLL checkpoint which refused me access to my gate a couple weeks ago.  The quality of the audio makes my musically-trained ears cringe, but it’s sufficient to make out most of what was send by Transportation Security Manager Alejandro Chamizo:

(0:00) TSM: Hey, good morning.
(0:01) Jon: How you doin’?
(0:02) TSM: Good, Alex, nice to meet you.
(0:02) Jon: Jon.
(0:03) TSM: Jon, pleasure to meet you.  I understand that you opted-out of the AIT?
(0:07) Jon: Yes.
(0:08) TSM: Now, we have to clear you.  So, the only option is, now that you did opt-out, is you have to be patted-down.  I understand that you have refused that also.
(0:17) Jon: I told them they could pat me down so long as they don’t touch my genitals or buttocks.
(0:21) TSM: Well, they do have to.  That’s how it goes.
(0:24) Jon: (inaudible – repeating that he will not consent to touching his genitals or buttocks)
(0:32) TSM: That’s a concern for us, as security, and we want to know why now.
(0:38) Jon: (inaudible – explaining that he feels that a search that touches his genitals or buttocks is a violation of his rights)
(0:52) TSM: Well we can either do it here or at the BSO’s (Broward Sheriff’s Office) office.
(0:56) Jon: (inaudible – explaining that he should simply be allowed to leave if the TSA will not clear him for admittance to the sterile area)
(0:59) TSM: I cannot let you leave the checkpoint without being cleared.

Audio Clip (1:03, .mp3)

This, my friends, is an attempt at forcible search via intimidation, as well as false arrest, as it was made 100% clear that I am not free to go at this point.  And let there be no doubt who did it — this guy (0:05, .mp3).

I sent in my FOIA request for the video (along with FTCA claim) almost a week and a half ago. When it comes, I’ll synchronize the audio I recorded with the video they provide and put it on YouTube for you all. 🙂

–Jon

Update: A reader claiming to be a TSA employee claims that he has reviewed the list of TSMs at FLL, and that Mr. Chamizo is not on it. For clarity, I was told by a uniformed TSA screener that the man was a TSM, and his clothing and demeanor seemed congruent with that. I will continue to update when I receive new information.

Update 2: Broward County has confirmed for me that Mr. Chamizo is NOT a county employee. Until I see evidence otherwise, I stand by my original statement of TSA TSM (or similar position).

“We can pat you down here or we can go down to the Broward Sherriff’s Office and do it.”

These were the words of the Transportation Security Manager on duty early this morning in Ft. Lauderdale, FL.  I was illegally detained and then threatened with arrest.  For refusing to allow the TSA to touch my genitals and buttocks.

My morning started at about 4 AM, where in FLL T3, approximately 80% of the passengers were being directed through the backscatter x-ray variety of nude body scanner.  Try as I did to be one of the “lucky” 20%, I was directed to the scanner.

“I’ll be opting out of this,” I politely told the clerk.  “No problem, that is your right!”  There was no yelling of “WE GOT AN OPT-OUT!” anymore, and after showing me a card that explained that opting out means that they would be touching my “sensitive areas” and giving me a chance to change my mind, I went to “the box” — which in FLL is a roped-off area.

He explained the procedure to me, which involved the usual mention of “resistance.”  I asked for him to define resistance, and he said something along the lines of, “Where the leg meets, you know, here,” gesturing to his crotch.  I told him that he can perform whatever pat-down he wanted so long as he did not touch my genitals or buttocks (my usual lexicon does not include such fancy words for “balls” and “ass,” but I digress…).

A 3-striper (STSO) is called over, who insists that the pat-down will not touch my genitals, but notes that it will involve going over my buttocks.  I ask him to clarify how he intends to “meet resistance” without touching my balls, and he suggests that maybe if I stand in some kind of lunge position, it will help.  I again clarify that I consent to search so long as it does not touch my genitals or buttocks.

I get a polite version of the classic, “Do you want to fly today?” and then a note that “Leo” would be called over if I didn’t want to proceed.  For those of you unfamiliar with TSA shenanigans, a LEO is a Law Enforcement Officer — a county sheriff, in this case.  I tell him if that’s what he needs to do, then that’s what he needs to do.

My LEO comes within a few minutes, asks what’s going on, the TSOs explain that I won’t consent to a search, and I clarify that I consent, just not to touching my junk.  The sheriff just sits by passively, not ready to do too much since there’s nothing for him to do, and makes a polite attempt at getting me to comply.

Honestly, everyone up to this point was quite polite.  Everyone in a blue uniform, plus everyone from the sheriff’s department was calm and relaxed, as was I, the entire time.  However, then comes over the TSM — the lowest level of TSA “suit,” who explains the same thing as everyone else, and then informs me that I cannot leave the checkpoint until I am screened.  He then goes on to tell me that if I do not permit his screeners to touch my genitals, I will have to go down to the “BSO” — Broward Sheriff’s Office.  At this point, I am now being illegally detained and illegally coerced into complying with a search.

I told him we’ll do what we have to do, but I do not consent.

One of the other screeners is now going through my belongings with detail that I have never seen.  Bags that took me half an hour to pack are now completely empty, every last pocket, and everything swabbed for explosive residue.  The screener starts looking through all the cards I removed from my pocket before the screening started, and actually begins to read them all.  I object, stating that it’s beyond the TSA’s mission to read my personal belongings, but he tells me he has the right to do this.  Finally he finds something suspicious in my card stack — a concealed weapons license.  He hands it to the sheriff like it was evidence that I must have a gun on me.  The sheriff shrugs and says, “I don’t have a problem with anyone with a concealed weapons license.  You know why?”  Of course I do — it means I’ve had a background check and have no criminal record.

The collection of 2 sheriffs, at least 6 blue shirts, one TSM, and one woman whose role I’m unsure of kept themselves busy.  The sheriff ran a warrant check on my license.  The TSA people made copies of my ID and boarding passes.  The bag searcher held up a corset he found in my bag, confused, and I told him he’d look great in it (and no, the corset is not mine; belongs to one of my girl friends).  Another screener asks me if he knows I can be fined and asks me if I know that.  I tell him of course, $11,000.  A relatively cute STSO (who happened to be my TDC — the person who checked my ID) made small talk and told me she liked my hair.  But, try as they might, I have nothing illegal with me, and have no intent on giving in to their threats (or flirtations :)).

The TSM finally comes up to me and tells me I’ll be escorted out of the airport.  “What, no arrest?  I thought we were going down to the BSO?”  Apparently he couldn’t back that statement up.

I took my belongings, thanked the sheriffs, exited the checkpoint, and after a total of 57 minutes at the checkpoint, turned off my audio recorder.

Oh, did I mention I have this all on tape? 😉

Coming soon. 🙂  Along with a new federal civil action for fourth amendment violations relating to the unlawful coersion, as well as false arrest.

–Jon

I filed record excerpts today, which is basically a compilation all the relevant documents for the appellate judges to review.  Combined with the brief that I posted last month, you have the entire case before you. 🙂

Corbett v. US – Record Excerpts (.pdf)

The appellate brief for my case is completed. After dozens of hours of research and writing forty-five total pages, I strongly think we have a winner here. I couldn’t think of a better way to have spent my 4th of July!

A huge public thank you to the law firm representing Jesse Ventura, Henson & Efron, P.A, and their attorney David Olsen, for his outstanding work on the motion to dismiss in the Governor’s case. Reading their analysis of the contradictory arguments in EPIC v. DHS, including the idea behind the amazing t-chart starting on page 22, made for a vast improvement on my brief.

Brought to you all first (though I’d imagine the DoJ probably subscribes to the blog… ;))…

Corbett v. US – Appellate Brief (.pdf)

–Jon

“[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.

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)