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 Jonathan Corbett, Civil Rights Attorney

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bivens

U.S. District Court: TSA Not Immune in Right-to-Film Lawsuit

TSA says right on its Web site that photo and video at the checkpoint is no problem, so long as you’re not in the way and not trying to capture the content of their computer screen. It’s also a Fourth Amendment right to record government officials doing their work in public, as has been affirmed time and time again. So why was my client, who simply wanted to capture his husband’s pat-down on their cell phone camera, told by a TSA supervisor at Richmond International Airport that not only must they stop, but also delete the video that they started to take?

Probably some bad training, probably some bad attitude, but regardless, U.S. District Judge John A. Gibney, Jr., in the Eastern District of Virginia, wasn’t having it, and today denied TSA’s motion to dismiss on qualified immunity grounds, as well as rebuffing TSA’s attempt to preclude Bivens remedies from being applied to checkpoint abuse.

Bivens is the landmark case allowing for money damages for some constitutional violations, most often for Fourth Amendment search-and-seizure abuse. The U.S. Supreme Court has shown some hostility towards using Bivens in other contexts, recently calling it a “‘disfavored’ judicial activity” and requiring courts to accept pretty much any reason that might suggest that Bivens remedies should be disallowed as good enough to disallow it. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). And here, TSA argued them all: that it would harm national security, interfere with their ability to do their job, and cause great hardship in their screener training process. But making TSA screeners follow the Constitution doesn’t implicate some kind of state secrets, and regarding training, well:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

…or in other words, if TSA isn’t already training their employees to follow the Constitution, now would be a great time to get started with that.

Regarding qualified immunity — the idea that government officials should get a pass if the courts hadn’t already made clear that similar conduct was illegal — the court had no trouble concluding that TSA is not “special:”

“[T]he First Amendment protects the right to record government officials performing their duties … to enable any citizen at any time to bring the government and any person in authority to the bar of public opinion …

In addition, when we protect the right to record public officials, we protect against the degradation of various other constitutional rights. This country’s racial unrest highlights this principle. Because a cell phone video captured George Floyd’s death, the world watched. The world’s reaction to this video — and others — sent millions into the streets in protest. Although the racial reckoning continues, this video and the protests it sparked bent ‘the arc of the moral universe … towards justice.’ Dr. Martin Luther King, Jr., Remaining Awake Through a Great Revolution (Mar. 31, 1968). What if the officers had ordered the video that captured George Floyd’s death deleted?”

It certainly makes this civil rights lawyer warm and fuzzy to have a judge quote Dr. King while a ruling in his favor.

Dyer v. TSA – Motion to Dismiss, Denied (.pdf)

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)

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