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 Jonathan Corbett, Civil Rights Attorney

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strip search

TSA Sued for Asking Child to Remove Pants to “Feel” Her Genitals

Transgender Pride FlagJamii Erway is a 16-year-old girl in North Carolina who is used to getting false alarms when she goes through TSA body scanners. The reason is that Jamii is transgender — she was born male and now lives as a young woman — and the TSA screener operating a body scanner must press a “Male” or “Female” button for each passenger.  If the operator presses “Female,” the machine will alarm if the traveler has external genitals.  If the operator presses “Male,” the machine will alarm they are wearing a bra.  (And, well, if you have a penis while wearing a bra, the machine will alarm no matter which button is pushed.)

I can only imagine that dealing with transitioning genders as a teenager is an extraordinarily difficult experience even without having to deal with the TSA.

TSA standard procedure for when the body scanner alarms on the “groin area” is that a quick pat-down using the back of the screener’s hands is done at the checkpoint to ensure that the traveler is not in possession of any prohibited items, as Jamii had experienced several times before.  But, when triggering the scanner last May at Raleigh-Durham International Airport, a confused scanner operator called over a supervisor who decided to invent a new procedure for transgender travelers: she told Jamii she must go to a private room, expose herself, and let her “feel up in there.”  That is, a TSA supervisor demanded to molest a child.  When Jamii’s mother, traveling with her, attempted to intervene, the supervisor told the mother to “mind her business” before trying to recruit her to pressure Jamii into submitting to the “search.”

TSA policies prohibit checkpoint screeners (and supervisors) from conducting strip searches (even though they continue to happen at the hands of “rogue” screeners, knowing that they are unlikely to face discipline).  Police and high-level TSA managers were called thanks to a mother unwilling to bend under pressure from a blue-shirted thug, and when police refused to back the search, Jamii and mother left the airport and drove 600 miles to their destination.

As best we can tell, neither the police nor TSA management took any action against the supervisor who wanted to violate Jamii — so on Monday I filed suit on behalf of Jamii in the U.S. District Court for the Eastern District of North Carolina.  The actions of the TSA here disgust me more than usual given that this is my first case on behalf of a child, and given the apparent discriminatory motivation.  I look forward to obtaining some justice for my clients and hopefully sending a message that transgender people are not second-class citizens while flying.

Erway v. TSA – Complaint (.pdf)

TSA: Making Woman Take Down Pants & Underwear “Not a Strip Search”

The TSA has been pretty clear that they do not conduct “strip searches” at the checkpoint.  In fact, they even re-iterated it to the media last year when I filed suit on behalf of Rhonda Mengert, a grandmother from Las Vegas, NV, who was ordered to take down her pants and underwear and show them a feminine hygiene pad.

So why does once a year or so a new news story gets published with new allegations of checkpoint strip searches?

Perhaps one reason is that the TSA doesn’t think forcing you to expose your genitals counts as a strip search.  From their latest filing in the Mengert case:

Here, the TSA attempts to borrow from a case in which police officers, sued for conducting an illegal strip search, argued that they really only conducted a “clothing search” that, incidentally, resulted in the person being searched ending up naked in front of a police officer.  Their attempt to try the same justification — essentially that the TSA screeners who violated Mrs. Mengert were not interested in looking at her body; rather, she was just incidentally exposed as they searched her clothes — is a bit curious since the case they cited told the police to pound sand:

“Whether or not the officers set out deliberately to inspect a prisoner’s naked body is not the question;  it is, rather, whether the officers did, in fact, perform such a search.”

Wood v. Hancock County Sheriff’s Dept., 354 F.3d 57, 64 (1st Cir. 2003), remanding the case back to the lower court for a jury trial.

I don’t imagine this will go well for them.

If you’re interested in qualified immunity, Bivens liability, and the lengths your government will go to defend blatant misconduct of their employees, the entire motion…

Music Festival Attendees Reach Settlement with Third-Party Security Company Over Alleged Strip Search

In the beginning of September I was deluged with messages alerting me to a problematic security search at a well-attended New York City music festival:

I had to do a strip search...

Sexually Harassed and Humiliated by Festival Security

After speaking with several individuals who encountered abusive security, as well as one employee from the contracted third-party security company who came forward, attendees alleged security dogs picked people out of the security line to receive an invasive search in a tent the security company had set up just for that purpose.  Inside the tent, some attendees claimed they were ordered by security to take off their clothes, or had their clothing pulled away from their body so that security could look down their shirt or pants at their genitals and breasts.  Others alleged security simply reached their hands inside of their undergarments and directly touched their intimate areas.

Unfortunately, it was explained to me by the security guard who came forward to me that festival security company CSS Security was short-handed and brought in out-of-state security guards to fill the gaps.  It does not appear that those guards were properly licensed, and at least some of them would have been ineligible to be licensed because of criminal history.

I represented three individuals who claimed to have been subject to searches like these, and can say that a full and final settlement was reached on the matter with CSS Security to resolve all of my clients’ claims on the matter.

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.

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