Appeals Court Says TSA Agents Are Beyond The Reach Of Federal Lawsuits

Legal Issues

from the agents-in-baggy-tactical-pants-shouting-'u-can't-touch-this'-forever dept

Well, this is disappointing. The 3rd Circuit Court of Appeals has just made it pretty much impossible to sue a TSA officer, no matter how you’ve been treated or how many of your rights have been violated. Reuters has the rundown on the decision, which all comes down to the court’s definition of the words “law enforcement officer.” (via Parker Higgins)

In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners were not “investigative or law enforcement officers,” and were therefore shielded from liability under the Federal Tort Claims Act (FTCA).

The majority said it was “sympathetic” to concerns that its decision would leave fliers with “very limited legal redress” for alleged mistreatment by aggressive or overzealous screeners, which adds to the ordinary stresses of air travel.

“For most people, TSA screenings are an unavoidable feature of flying,” but it is “squarely in the realm” of Congress to expand liability for abuses, Circuit Judge Cheryl Ann Krause wrote.

Thanks, Judge Krause. I’m sure Congress will get right on that. Seeing as there’s no personal benefit to Congress members and ample opportunity to piss off fellow government employees with the power to make their travel experiences closely resemble an abduction by aliens, there’s little chance of this being pursued, no matter how many cases are shrugged into their lap.

Here’s the background: the appellant (Nadine Pellegrino) was selected for additional screening. She demanded a private screening and things went from bad to worse quickly. Items were carelessly packed and unpacked. Personal belongings were damaged. TSA agents were unhelpful, rude, and apparently deliberately obstructive. Agents claimed Pellegrino “hit” them with her belongings while in the screening room. Not “hit” as in the endpoint of a swing, but “hit” as in things bumped into them while they were dealing with an unhappy traveler. Oh, and she called the two officers in the room “bitches.” This is how a bunch of government employees — starting with the TSA agents — chose to handle it. From the decision [PDF]:

When the police arrived, Pellegrino was frisked, handcuffed, and arrested. Labbee confiscated her driver’s license and, along with Abdul-Malik, swore out criminal complaints against her. Kissinger offered a witness statement corroborating the allegation that Pellegrino struck Labbee in the leg with her bag. The police escorted Pellegrino out of the airport in plain view of other passengers. She was held for roughly 18 hours and released after her husband posted approximately $400 in bail.

The police incident report stated Pellegrino struck both Labbee and Abdul-Malik with her bags and shoes that she tossed out of the private screening room. It also noted both TSOs suffered from leg pain and a stomach bruise as a result of Pellegrino’s actions.

Did things calm down? Hardly. The Philadelphia District Attorney’s Office charged Pellegrino with ten criminal violations: two counts of felony aggravated assault, see 18 Pa. Cons. Stat. § 2702; two counts of possession of an instrument of a crime (the suitcases allegedly used to hit the TSOs), see id. § 907; two counts of making terroristic threats, see id. § 2706; two counts of simple assault, see id. § 2701; and two counts of recklessly endangering another person, see id. § 2705. (Someone must have taken creative charging and aced the test; either that or there was a lot of lawyer-lounge temporizing.)

That’s where this all starts. This is how the 3rd Circuit chose to end it.

The long decision spends most of its running time interpreting various words to the detriment of the public at large. TSA officers enforce laws, detain people, perform searches of both people and their things and yet, somehow, they’re not “investigative or law enforcement officers.” The court unhelpfully explains the only reason TSA officers are called “officers” is because the agency threw employees an undeserved bone to lift flagging morale.

[A]s we noted previously, TSOs were originally called “screeners,” and their title was changed in 2005 merely as part of an effort to improve employee incentives and “upward mobility opportunities within [the] profession.” Specifically, it appears that the title change and related adjustments were intended to “give TSOs an opportunity to . . . apply for DHS law enforcement positions”—further undermining the notion that TSOs already constitute a species of law enforcement officer.

If we can take any joy from this decision at all, it’s the fact that the “promotion” from “screeners” to “officers” was as meaningless as everything else the TSA does. That’s the most cynical way to appreciate this decision — one that decides a whole bunch of words scattered across a few dozen pages somehow alters the fact that these “officers” do stuff associated with law enforcement and investigation, even if they have to turn over actual arrests and bookings to local cops.

Judge Thomas Ambro’s dissent highlights how ridiculous — and ridiculously unhelpful — the majority’s dissembling is.

No other Court of Appeals has gone as far as they do by categorically barring certain classes of individuals (i.e., those who are not criminal law enforcement officers) from the reach of the proviso. Nor has any other Court of Appeals relied on another statute’s and an agency’s classifications to determine whether a federal agent is an “investigative or law enforcement officer” under § 2680(h).14 The majority’s reasoning would allow Congress—and perhaps even agencies—to exempt individuals from the proviso’s reach simply by categorizing them as employees who lack criminal law enforcement powers. See Majority Op. at 43 (citing a TSA directive that discusses the distinctions between TSOs and law enforcement officers). It would also empower courts to disregard § 2680(h)’s statutory definition of “investigative or law enforcement officer” in favor of those terms’ meanings as perceived by the particular judicial panel. Such a rule would allow courts to expand or contract statutory definitions as they see fit.

This isn’t any way to run a law shop. But this is the way the Third Circuit runs its jurisdiction. This is its second shielding of TSA officers from federal civil rights lawsuits — something it says it does reluctantly, but also apparently repeatedly.

TSA officers are empowered to search for violations of federal law and enforce federal travel regulations. However the TSA chooses to define their duties — and it deliberately chooses to describe them as outside the reach of federal torts whenever convenient — they are officers of the law and there’s even a hint of “investigation” to the work they do. Then again, what do you expect from an agency that defines the airport screening process this absurdly?

The Government […] contends TSA screenings are not searches under § 2680(h)’s proviso because they are consensual and limited in nature.

They’re only “voluntary” in the sense that no one holds a gun to your head and forces you to buy a plane ticket. Other than that, they’re mandatory. If you’re flying, you’re submitting to a search the federal government says lies outside the protections of the Fourth Amendment and, in this case, outside the reach of a federal lawsuit, should a TSA officer steamroll your rights.

Filed Under: 3rd circuit, law enforcement, lawsuits, tsa