A Federal Court Lays Out The Bullshit "Security" We Have At Airports
That wasn't the intention; it was just a side effect of the ruling.
A federal appeals court ruled that TSA workers cannot be sued over allegations of abuse -- get this -- because, as I've been reminding people for years, they are not officers; they are merely repurposed mall food court workers dressed up in cop suits.
Frederick Kunkle writes in the WaPo:
The U.S. Court of Appeals for the 3rd Circuit, which sits in Philadelphia, held that TSA officers enjoy sovereign immunity because, despite their badges and titles as "officers," they do not qualify as "investigative or law enforcement officers" who could be held legally responsible for abuses under the Federal Tort Claims Act.The court also revisited the question of when a search should trigger Fourth Amendment protections and found that TSA screeners are more like federal meat inspectors than police officers.
Federal MEAT inspectors.
Yes, as I've been saying -- as one who had her "meat" a little too closely "inspected." ("Ow! Ow! Ow! Ow!")
This is charming:
Ambro also noted that the majority's opinion would bar passengers from bringing legal claims even in the most extreme cases, such as when TSA officers at Denver International Airport were accused of manipulating security procedures so that they could grope "attractive" male passengers."Their opinion leaves several plaintiffs without a remedy, even if a TSO assaults them, wrongfully detains them, or fabricates criminal charges against them," Ambro wrote. "I do not believe this is what Congress intended."
I believe Congress merely intended to look like it was doing something. What that something was...well, they have elections to win...why sweat the details?
And here's a cute little dance with language:
The court also noted that when the TSA was created, the initial job description given to its employees at airport checkpoints was simply "screener." This was later switched to "transportation security officer" only as a kind of morale booster. In contrast, actual federal law enforcement officers are given the power to execute arrests and carry firearms, the court found.
Oh, did you have hurt feelz from groping citizens sans probable cause without a title you could be proud of?
Boohoosy.
I like this WaPo commenter, jonny207:
This 3rd Circuit Panel Decision makes a good case for eliminating the TSA as a department within DHS, and returning its pre-9/11 functions to States and local municipalities. The illogical nature of the decision also makes a good case for Plaintiff Pellegrino escalating her appeal to the entire 3rd Circuit en banc, where all 17 Judges can weigh-in on the wisdom of the decision.If I recall, the TSA was created in the post-9/11 frenzy of fear that States and municipalities could not effectively police Airport screening. With a GOP Congress, that function was centralized within the newly-created DHS, and the work outsourced to the lowest possible (non-unionized) bidder. As a retired LEO, it pains me to say it but most TSA screeners are minimum-wage employees with little training. Meat Inspectors of the USDA are far more skilled and professional than TSA employees. I also note that the Uniform and Badge of TSA employees connotes the color of LEO authority, whether they are armed or not. The public responds to their authoritative commands with lawful submission, even when those commands bend credulity. In other words, if it waddles, flies and quacks like a Duck, it is a Duck.
Oh, and finally, for some corrective thoughts on the media take on the case, here's my colleague in fighting TSA abuse, Professional Troublemaker Jonathan Corbett.
Well, first a little lawsplainer from him:
Suits against the government for money damages come under the Federal Tort Claims Act (FTCA), a law written by Congress discussing the terms under which one may use the federal courts for such a suit.
Now, about this case:
The Third Circuit found that the language the FTCA uses implies that Congress only intended it to cover law enforcement officers, and TSA is not law enforcement. This ruling has 2 problems: 1) Congress' intent is only relevant where the statute is ambiguous. It strains credulity to argue that TSA screeners are not "empowered by law to execute searches," in my view, but the Third Circuit concluded that "searches" is ambiguous enough to need to examine Congressional intent, 2) The FTCA was written before the TSA was created, so therefore Congress could not have had intent to exclude or exclude them, and 3) since Vanderklok foreclosed Bivens suits, there is now no recourse for those injured in the ways that Vanderklok and Pellegrino were injured.Put another way, in New Jersey, Delaware, and Pennsylvania, there is now no recourse if a TSA screener intentionally, falsely calls the cops and says you threatened to blow up the airport, because they decided they don't like your attitude. If you spend the night in jail because a TSA screener lied, you've got no lawsuit. Not against the TSA, the TSA screener, and probably not against the cops either.
The rulings don't directly address more traditional Bivens claims, such as one for assault or false arrest. If a TSA screener beats you or physically restrains you, you may (may!) still have a suit in the Third Circuit. But malicious prosecution, retaliation, defamation, invasion of privacy, emotional distress, and conspiracy to do any of the same? Congress intended that the TSA not be held accountable for that, says the Third Circuit.
The decision was a 2-1 panel opinion, with a well-reasoned dissent to the now binding law in that circuit (long, but worth a read). I look forward to the plaintiff's motion for rehearing en banc (by the full Third Circuit), for which I'll be writing an amicus brief.
But if they're not really cops, then you're free to punch them out for groping you, right?
jdgalt at July 11, 2018 9:21 PM
I'll be spending this weekend driving to TN from TX, and back, because I'd rather do that than stick my 15 year olds on a plane to grandmas. Because of the TSA.
Which is sad, because flying alone for the first time used to be a fun rite of passage.
Momof4 at July 12, 2018 3:47 AM
“I believe Congress merely intended to look like it was doing something. What that something was...well, they have elections to win...why sweat the details?”
That goes for the vast majority of all legislation issued by Congress. Full speed ahead and damn the torpedoes of massively scaled unintended consequences!
RickC at July 12, 2018 6:29 AM
There are a million ways transportation security could have been improved without creating a new and vast federal bureaucracy. For instance
Shift the burden of security to the airlines. Those that are secure will gain more passengers. I'm reading a book on the 1976 Entebbe raid right now and several passengers (later, hostages), when told they would have an unscheduled layover in Athens on their Air France flight, tried to rebook their direct flight on El Al, an airline with a sterling reputation for security. Many of the soon-to-be-hostages had tried to avoid Air France from the beginning, due to its shaky security reputation.
The paradigm of the TSA roots the security on the ground, not in the air, in preventing the hijacker/bomber from getting on board. But it does nothing once the hijacker/bomber has gotten on board. It's half a concept, and poorly executed at that.
And, by its nature, the TSA is reactive, not proactive. If the hijackers/bombers find a new way of getting on board, the TSA can do nothing more than screen for that way the next time. It's up to the unarmed and untrained passengers and flight crew to handle the in-air incidents.
The long march toward making them cops has already begun. They're given official looking badges, called "officers," and trained at FLETC. How much longer before the public accepts them having power to arrest and detain, or being armed?
Conan the Grammarian at July 12, 2018 7:31 AM
Conan, it's worse than that... per this Third Circuit decision, they have all of the authority that cops have, but none of the responsibility. It's interesting because if the Third really believes that they are not "officers" and don't have legal power to search someone, then I have a right to refuse consent to their search, which I clearly don't.
If the federal government truly believed that hijacking is a national security threat, then the President and/or Congress would direct (and fund) the U.S. Army to do airport security. That they don't tells you how seriously they really take the issue.
Cousin Dave at July 12, 2018 8:52 AM
There are a million ways transportation security could have been improved without creating a new and vast federal bureaucracy.
Insufficient opportunities for graft and corruption. That's almost always the answer for why things are done the way they are.
But arming TSA bodies? that strikes me as a really bad idea. Allowing whatever miscreant an opportunity to arm themselves at a checkpoint by managing to swipe a weapon from TSA?
Or better yet: finding an unattended weapon in a bathroom stall. On the other side of the check point.
These things have been known to happen to actual law enforcement. Just wait till there's a negligent discharge at the checkpoint because some yahoo was playing around with xer's gun.
That might be enough for the airlines and/or the airports to demand direct control over security.
I R A Darth Aggie at July 12, 2018 9:03 AM
They'd have to repeal the Posse Comitatus Act. The federal government is limited in using its enforcement instruments to enforce domestic policy. Even the FBI has to have permission to intervene or assist in a non-federal criminal matter or one that does not cross state lines.
When the "army" took over airport security immediately after 9/11, those were actually National Guard troops (page 11) under the direct supervision of state governors.
Conan the Grammarian at July 12, 2018 9:38 AM
"They'd have to repeal the Posse Comitatus Act. "
Not sure I'm agree. (Disclaimer: I'm not a lawyer, and I didn't stay at a Holiday Inn Express last night.) The President can invoke the U.S. military against rebellions and insurrections, as I understand Posse Comitatus. There would, I assume, have to be some kind of declaration of hostilities from Congress in order to keep them in place. (Or maybe not, given that Congress seems to have ceded the power to declare war to the executive branch.) The tough thing, and one where the judiciary might not go along with a President, is convincing them that attacks on airliners under these circumstances constitute acts of war rather than just criminal activity.
Cousin Dave at July 12, 2018 11:28 AM
If TSA workers can not be sued as agents of the federal government, doesnt this mean they can be sued as individuals, as private citizens?
And if so wouldnt this ruling prevent them from from having their legal fees paid for by the government?
lujlp at July 12, 2018 11:21 PM
"If TSA workers can not be sued as agents of the federal government, doesnt this mean they can be sued as individuals, as private citizens?"
In general, in the U.S. non-officer employees of any organization cannot be sued personally for actions they take as employees; only their employer can be sued. There are a lot of exceptions, though.
Cousin Dave at July 13, 2018 6:29 AM
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