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 Jonathan Corbett, Civil Rights Attorney

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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)

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.

 

How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming?

Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:

The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:

Listen, I’m not here to argue with you.  I’m telling you what we’re supposed to do.  I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers.  [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong.  Ok?  Clear?”

The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.

Some areas of the law are gray areas.  Others are perfectly clear.  Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear.  From the TSA’s Web site:

“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”

I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:

Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.

Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.

Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011) (internal citations omitted).  The U.S. Court of Appeals for the Third Circuit, which encompasses New Jersey, agreed earlier this year.

This kind of nonsense happens all the time, including to me.  Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated.  It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.

In the meantime,  at the least we can get a laugh out of the end of the video.  The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):

I hope you’re recording everything. Are you recording me now? Can you please erase that?

“Lordy, I hope there are tapes.”

 

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.

Terrorist Attacks Police Officer in Michigan Airport — What Could Have Prevented This?

Yesterday, it was reported that a Canadian national entered a Detroit-area airport, found a police officer, yelled “Allahu Ackbar!” and then repeatedly stabbed the police officer in the neck.

In the meantime, our government has focused on:

  1. A “TRAVEL BAN” (emphasis Trump’s).  But a ban on temporary visas for citizens of a half dozen Middle Eastern countries would not have excluded this Canadian Muslim terrorist (or any other terrorist, according to the U.S. Department of Homeland Security).
  2. A “laptop ban,” because older x-ray equipment can make it difficult to distinguish a laptop battery from a block of C-4.  The better solution being an upgrade of older x-ray equipment notwithstanding, every recent airport attack has either detonated a bomb before the security checkpoint or used an alternative weapon — like a knife.
  3. A more thorough molestation when going through TSA checkpoints.   Because despite all the other holes in TSA security, grabbing everyone’s genitals makes us feel safer, right?
  4. Surveillance — which, apparently, doesn’t work.

Here’s what our government has not focused on:

  1. Getting the hell out of the Middle East.  Instead, we’re still selling arms to Saudi Arabia and now bombing more civilians than ever.
  2. Fixing mental health in this country.  Scratch that, fixing health in this country.

There seems to be a simple solution: spend less on war, ineffective TSA security, and creating a police state, and spend more on healthcare.

So why aren’t we doing this?  Why don’t we, the people, the voters, insist on this?

Please, Don’t Go In The TSA’s Private Room!

One of the more interesting (sometimes, disturbing) parts of “my job” is that I get e-mails from people across the country on a regular basis describing abusive TSA practices.  These accounts range from descriptions of the TSA’s usual pat-downs, of which the author was shocked to realize happen that way, to descriptions of clear violations of TSA procedure, thuggish attitudes, and down-right sexual assault.  There is one common theme beyond blue gloves: a high percentage of the time passengers feel abused, it is when they go to “the private room.”

For those of you who have had a TSA full-body pat-down, you probably know the speech they give you: a description of how they’re going to touch you, a note that they’ll be using the back of their hands on your “sensitive” areas, a question as to whether you have any injuries or medical devices, and finally, an offer to conduct the screening in private.

For the love of god, please do not take them up on this offer.

Three reasons:

  1. In the private room, there are no cameras, there is no supervision, and if you say the TSA screener inappropriately touched you, it is unlikely you will convince a TSA supervisor, a police officer, or a judge to believe you.  Every checkpoint in the country has many cameras, and you can actually request footage from them by Freedom of Information Act request.  If something goes wrong (well, more wrong than usual), this is your only hope for justice.
  2. Sometimes, the TSA will insist that they conduct private room screening. In particular, this will happen if you alert the explosive trace detector.  In this case, the private room screening will be even more invasive than usual.  They will literally be grabbing your genitals with the front of their hands.  Even if it results in missing your flight, do not go.  Even if the TSA insists that you must, refuse.  At some point, you have to draw the line — I urge you to draw it at this point or before.  Let them throw a fit, call the cops, or whatever it is they threaten you with, but at the end of the day, they have to let you go.
  3. Private screening allows the TSA to hide their pat-downs from everyone else, making it seem more rare and keeping the public less on notice of what may happen to them.  By forcing the pat-down to be in front of everyone else, you are taking a small stand.

If you think I may be exaggerating, here’s an example of the kind of e-mail I get (warning: graphic):

TSA Sexual Assault

This kind of sexual assault happens all the time, leading to a headline in 2011 where three different senior citizens in three different incidents accused the TSA of strip-searching them in the private room. But most of the time, stories like these get no media attention. The victim may file a complaint, and nothing happens.

Catching your flight is just not worth it.  Please help me get fewer e-mails like this and spread the word.

P.S. – One more suggestion, if I may: tuck your shirt into your pants before a pat-down.  If you do so, you won’t be asked to lift up your shirt, and you won’t feel their latex-coated hands on your bare skin.

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