
TSA screeners win immunity from flier abuse claims: U.S. appeals court - devy
https://www.reuters.com/article/us-usa-tsa-lawsuit/tsa-screeners-win-immunity-from-flier-abuse-claims-u-s-appeals-court-idUSKBN1K125W
======
rayiner
The opinion is here (should be up on the CA3 website later today):
[http://s000.tinyupload.com/index.php?file_id=310762278918844...](http://s000.tinyupload.com/index.php?file_id=31076227891884466185).
The relevant discussion starts at 12-13.

The gist of the suit is this: Ordinarily, you cannot sue the federal
government (sovereign immunity). The Federal Tort Claims Act (FTCA), broadly
waives sovereign immunity for tort claims. An exception to that waiver of
immunity is where the agent of the government commits an intentional tort (
_e.g._ federal employee punches you, as opposed to accidentally running over
your dog, which would be a negligent tort). However, that exception does not
apply to law enforcement officers--under the FTCA, the federal government
takes responsibility for the intentional torts of law enforcement.

Ordinarily, even if you cannot sue the government, you can sue the individual
officer in his personal capacity. Under the Westfall Act, however, the FTCA is
the exclusive remedy for torts of federal agents acting within the scope of
their employment.

That leaves a loophole: you can sue federal law enforcement officers under the
FTCA for both intentional and negligent torts. But if the federal agent is not
a law enforcement officer, you can only sue her for negligent torts. The issue
in this case is whether TSA agents are law enforcement officers such that you
can sue the federal government for their intentional torts.

The majority holding is probably correct as a matter of statutory
interpretation. Still, it puts TSA in a weird loophole, where they act like
law enforcement officers (including all of the power-tripping that can result
in commission of intentional torts), but can't be held liable under the FTCA
like law enforcement officers. The dissent makes a good point:

> Circuit Judge Thomas Ambro dissented from Wednesday’s decision.

> “By analogizing TSA searches to routine administrative inspections, my
> colleagues preclude victims of TSA abuses from obtaining any meaningful
> remedy for a variety of intentional tort claims,” he wrote.

~~~
DannyBee
(i'll say i actually gravely dislike the TSA, but think this is clearly the
right result)

"The majority holding is probably correct as a matter of statutory
interpretation."

Yeah, agreed. Reading this statute, it's fairly clear it was not meant to
apply here, but it does raise the sad issue of "we've separated these jobs
enough to create a loophole".

If they were designated LEOs, they'd clearly fall under the statute, even when
performing administrative searches. By making them line employees with no
officer authority, they've avoided this.

While i agree the dissent makes a good point, it's also unclear to me they
should be able to make a federal torts case of this given the state of the
world. First, dissent is hand-wavy on this point: '“By analogizing TSA
searches to routine administrative inspections, my colleagues preclude victims
of TSA abuses from obtaining any meaningful remedy for a variety of
intentional tort claims,”"

They can and did file a claim with the TSA. The TSA simply denied it.

You need more than them denying it to say "it's not meaningful". IE you can't
just wave your hand and say they denied it so it's not meaningful, you'd have
to show data that says filing these claims is not producing meaningful results
when it should.

Instead, they simply provide data that there have been less than 200
administrative complaints (out of 700 million screened!), and no data about
how they have been resolved (and if you aren't getting due process, you can in
fact make out a claim about that!)

They also did settle the property damage claim.

Beyond that, while i generally think complaints should be resolvable through a
sane process (hence my argument about the data on claims made to the TSA), i
strongly disbelieve that every bad interaction with a TSA line employee should
be actionable in federal court as a tort.

(i'm also not going to argue about the efficacy, etc of the TSA. As long as
air travel remains not a fundamental right, the rest of this legal reality
sadly comes along for the ride)

Here, they actually did what they were supposed to - they didn't start a
fight, beat this person down, etc. Instead, they went to their supervising
officer and said "we believe were were assaulted, please call the police"

There is apparently strong disagreement on the interaction that led to this
happening, and the entire suit is about what happened _after_ that (the
arrest, etc).

I believe the result is correct as to these people, who did not actually
arrest or prosecute them. That decision was made by others, based on review of
evidence, etc.

They are not suing any of the people who made those decisions, claiming lack
of evidence (i'm aware a bunch of them are immune, but not all of them) etc,
they are suing the people that they had the bad interaction with.

They also could have asked the government for westfall certification (They
didn't), which would let them sue the screeners personally.

All in all, i just don't see the badness in this ruling that others do.

~~~
syshum
Not making them LEO's is one of the ways they get around the 4th amendment, if
they LEO with the ability to criminally charge people well now you are making
a Criminal Search and the 4th amendment kicks in.

Law enforcement is not allowed to search people in a free nation unless there
is probable cause a crime has been committed.

personally I think the TSA is a 4th amendment violation as they stand but....

>As long as air travel remains not a fundamental right

Freedom of movement is a fundamental Right. Airport security was fine when it
was a non-governmental process imposed as a condition of carriage by the
private airline companies. It becomes a problem when it is government agents
doing to searching.

One should not be subjected to searches by government agents as a condition of
being allowed to travel

~~~
tptacek
I don't think this is accurate. First: there are lots of places that actual
police officers conduct administrative searches; for instance, any time you go
to court. Second: if the TSA finds contraband during a search, you can be
arrested for it, and that happens routinely. Yes, the airport police arrest
you, not the TSA, but the arrest is based on evidence from the TSA's search.

Do a Google search for [administrative search fourth amendment] for more
details.

~~~
syshum
>>First: there are lots of places that actual police officers conduct
administrative searches; for instance, any time you go to court.

This is where we start threading the needle on what a "search" is, the courts
rules awhile back that a Metal Detector is not a search and I have never been
to a government building where I had to do through more than Metal Detector
and they did not Search me beyond that basic metal detection,

TSA however is employing much more than simple metal detectors which should be
(and I believe is) considered a search, that is not even talking about the
extended "pat down" these are far far far far more invasive than anything done
at a court house

>>Do a Google search for [administrative search fourth amendment] for more
details.

yes I am aware the Supreme Court has failed in its duty to uphold the
constitution as written, and have more or less made Swiss cheese out of every
protection from government intrusion in to a citizens life where police and
government more or less have unlimited powers today... That has no bearing on
my point.

The Constitution today is a document with no authority because the Supreme
Court has granted the Government soo many exemptions to every single provision
to it that we might as well not even have a Constitution...

Lucky they are starting, slowly and painfully, to claw back some rights for
citizens, but the reality we find ourselves in for the US is one of where the
Government has far far far far more power and authority than the constitution
plainly allows, the TSA is a prime example of that

~~~
tptacek
As long as we agree that we're operating in different planes, mine where the
Supreme Court matters and yours where it doesn't, I'm comfortable with us
agreeing to disagree here.

------
everdev
> She and her husband had sued for false arrest, false imprisonment and
> malicious prosecution over a July 2006 altercation at Philadelphia
> International Airport.

Why does it take 12 years to get this far in a case? It seems like a right to
a speedy trial should apply to civil cases too.

~~~
dragonwriter
> It seems like a right to a speedy trial should apply to civil cases too.

It doesn't apply to civil cases, and it doesn't apply to the suing party in
any case: it applies to the _defense_ (only) in criminal cases. Read the Sixth
Amendment.

If you’d like to change that, there is a process for Constitutional
Amendments. There are good reasons attached to the impacts of pending criminal
charges (which can include pre-trial detention or restrictive bail terms) why
speed is prioritized over other factors as a right of criminal defendants and
not litigants generally, though.

~~~
idontpost
It's also worth noting that most defendants never go to trial, and those who
do mostly waive the right to a speedy trial.

Speedy trial is more a right in theory than in practice these days.

~~~
syshum
More and more most rights seem to in theory only, for example a person is
suppose to have to right to be free from searches unless there is probable
cause they have committed a crime... except <<<insert a list 1000 miles long
of other times government can search you>>>

------
larrik
I don't understand, shouldn't them not functioning as “investigative or law
enforcement officers” expose them to _more_ liability, not _less_??

~~~
mieseratte
I believe LEOs are given immunity so long as they act in "good faith," e.g.
the "I feared for my life" defense.

~~~
gdwatson
The exceptions to the exceptions to the exceptions on immunity are confusing.
You seem to be referring to self-defense cases, which are something else
altogether and not limited to law enforcement.

~~~
mieseratte
> You seem to be referring to self-defense cases, which are something else
> altogether and not limited to law enforcement.

You're right, that particular situation is not limited to law enforcement.
Really, I'm conflating a number of protections[0] to things like erroneously
seized evidence, protection from civil liability, etc.

[0] -
[http://www.policemag.com/channel/patrol/articles/2007/06/the...](http://www.policemag.com/channel/patrol/articles/2007/06/the-
good-faith-doctrine.aspx)

------
return_True
If they are not LEO, then they do not have the power to detain people, do
they? That means effectively the false imprisonment is actually kidnapping?

~~~
compiler-guy
TSA agents don't detain you. They call police who do. The response time is in
seconds.

~~~
r00fus
Smells like a loophole. Doesn't that violate the spirit of the law?

~~~
setr
Only if you assume that the relevant police are operating blindly at the
request of the TSA officer. If they're doing their jobs... then they should
themselves be checking that this event does in fact call for detainment.

It would be the same with mall security calling an actual police officer. Or
you calling 911 on someone else. The officer should still be operating with
autonomy, and can turn down your request to detain when its unnecessary or
unreasonable (though I would imagine these psuedo-authorities are provided
benefit of the doubt)

------
dannyw
This is very unfortunate. I guess there are no chances for this to change in
this congress.

------
monkey88
The judge was another one of Kennedy's clerks.

No surprise there.

------
mikeymop
> they do not function as “investigative or law enforcement officers.”

But they can arrest people?

------
lmilcin
That's it. I'm never gonna come to United States.

I no longer see United States as free, democratic and safe country to visit.
United States usurps itself power to do whatever they want with me upon its
soil. My electronic devices searched through, my social accounts surrendered,
my belongings damaged or stolen on a whim of TSA without right to appeal or
get reimbursed, I can be detained for however long U.S. wants without any
judicial procedure.

Working in IT for large companies, I have been asked to come to US on few
occasions but fortunately I have always been able to avoid this. Now I am
going to straight decline based on the fact that I don't feel safe coming
there.

~~~
cheeze
Hate to say it, but that's exactly what Trump wants (you to not come to the
States) :/

------
s73v3r_
"“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."

How on earth is the TSA not already covered under those laws? This is why I
can't get behind "originalist" judges; they interpret the laws and the
Constitution too literally. Because the TSA wasn't explicitly named under the
act (likely because they didn't exist back then), they don't qualify?

~~~
syshum
An orginalist would rule the TSA unconstitutional on several fronts... not the
least of which 4th Amendment, 10th Amendment, Article I Section 8, etc.

~~~
s73v3r_
Not if that's not the question before the court.

------
mnm1
So in other words not only can the tsa arrest and likely even beat, shoot, and
kill you, but as a citizen you have no recourse, not even the recourse you
would have against normal police. In other words, they truly are above the law
even more so than police. Please tell me I misunderstood this article. I'd
like to know how this lady got arrested. Shouldn't they just have kicked her
out of the airport instead? Or did they know they would not be held
responsible and just went ahead and kidnapped her anyway?

~~~
pc86
The TSA aren't armed so I'm curious how they'd ever shoot anyone. When has a
TSA officer ever killed someone in the exercise of his or her duties?

Detention at an airport security checkpoint is not kidnapping.

~~~
mnm1
It's not part of TSA duties to arrest someone either, but they did it somehow,
so that means they could pack their own gun and kill people too or do any
number of things that is not part of their duties.

[https://www.tsa.gov/blog/2016/07/03/tsa-myth-busters-do-
tsa-...](https://www.tsa.gov/blog/2016/07/03/tsa-myth-busters-do-tsa-officers-
arrest-passengers)

~~~
pc86
No they don't. They call the police and the police arrest you.

