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.
I’m a magnet for random checks in the EU - getting my laptop swabbed for bomb-making material because oooh scary stickers or something. It may very well just be my luck, but regardless I’m staying the hell away from the US just on the basis of these TSA horror stories.
You can keep your legal weed and I can keep my teeth.
I think that's wise. It is far from clear that, as a practical matter, the U.S. is still governed by the rule of law.
(I am a naturalized U.S. citizen, but even that doesn't give me a whole lot of confidence that the government won't fuck with me. I am having to think long and hard nowadays before saying anything critical of the U.S. government on line.)
US under the name of nationalism has become quite a racist country. I have a common surname and I always get stopped and questioned because I have a certain surname. Half an hour extra for every international flight even though I am a permanent resident here.
It’s just stupid. Traveling to/from US is a menace.
There is a substantiated legal opinion that DHS men are not law enforcement officers, and thus you can. I wonder, if anybody actually tried.
I was in a situation very shortly after (as in, Oct/Nov 2001) 9/11 wherein the TSA (or whatever they were at that disorganized point) called the police over and the police officer openly derided and made fun of them for both not being actual law enforcement and having no idea what to do with the situation at hand.
Things are different now, of course ...
Also, the police are probably monitoring the checkpoint from somewhere in the back anyway. So they likely have you on camera before they even get to the scene.
That seems backward: I can grasp the argument that inevitably people will make unintentional mistakes in the course of their job and can't be sued every time. But based on rayiner's comment, they are liable for unintentional errors but not for intentional harm?
What is the point of that? Is there some context or history in which it makes sense? Or do I misunderstand?
If the officer is negligent, they're not immune. That seems to make sense to me.
If they intentionally harm you, and that harm is justified in the course of their duty (say, they hit you with a nightstick and break your arm in order to stop you from attacking someone else), then they're immune. That seems to make sense to me as well.
The problem is when they claim that the harm was necessary and justified, but that they could have -- just as safely -- de-escalated the situation another way. Then it becomes a judgment call: was this harm justified-intentional or negligent? Unfortunately the review boards and courts err on the side of the LEOs nearly universally on this one.
> if the federal agent is not a law enforcement officer, you can only sue her for negligent torts [and not for intentional torts]
We're talking specifically about non-LEOs
*not sure why it would be, if you weren't a law enforcement personnel
A military service member has no more authority or right to do that then a Hacker News member.
Intentional torts against "investigative or law enforcement officers" are specifically permitted by the FTCA.
The loophole is when a federal employee is specifically not a law enforcement officer.
"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.
There are reasons to suspect that the TSA isn't adequately following up on these grievances. I can't find any new data, but in 2013 the Government Account Office (GAO) complained that the TSA didn't really have a process in place.
"TSA does not have a process for conducting reviews of misconduct cases to verify that TSA staff at airports are complying with policies and procedures for adjudicating employee misconduct."
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
Do a Google search for [administrative search fourth amendment] for more details.
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
In DHS's case, i don't remember what they do.
But the process is usually not quite that dumb.
It's usually an ALJ.
I admit to not remebering how DHS does it though.
Genuinely curious here, if a person assaults someone who works for the federal government, (or even the local government for that matter), and they charge him/her for that assault...
is that charge really "trumped up"?
I thought that there were actually laws against that?
Isn't "trumped up" when you DON'T actually assault the federal or local government person and they SAY that you did in order to charge you with a crime?
Yes, you read that correctly -- a felony charge. it's as absurd as it sounds.
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.
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.
Speedy trial is more a right in theory than in practice these days.
In terms of the right to study and public trial, that's kind of the ideal case, though the first part key be problematic for other reasons. If the government internalizes the speedy trial protection so as to not charge people until it is ready, or nearly do, to prosecute, then delay will usually be in the interest of the defense, who will not likely be prepared in advance of the initiation of the prosecution.
If the right had to be regularly invoked, that would be the sign of a serious problem.
You're right, that particular situation is not limited to law enforcement. Really, I'm conflating a number of protections to things like erroneously seized evidence, protection from civil liability, etc.
 - http://www.policemag.com/channel/patrol/articles/2007/06/the...
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)
No surprise there.
But they can arrest people?
The main insight is we're all responsible for what follows what we post. It's a bit weird, but it's a model that actually works. I think of it as similar to how one handles fire in other places, like campsites or gas stations.
Seriously, most of these people are not "fascist child molesters" and probably already hate their job. Congrats on making them view the general population as people they detest a little more.
These are people who chose to opt into a career where they perpetuate security theater on to millions of fellow citizens, waste our time, offer no tangible benefit, and collect a paycheck and pension for the privilege of doing so.
I _hope_ they hate their job.
These people took an open job because they needed one. Do you believe the people serving you burgers at McDonalds did it because they believe in the corporate mission of the restaurant? Also, all of the things you listed are not things that can be equated with child molestation. At worst they are inefficiencies in our system. Calling someone names does not get rid of those inefficiencies. It just creates more animosity.
I don't support McD's however I'm sure you could be describing a generic fast food place. You really can't compare working fast food to working for the government. People work for the government for a whole lot more different reasons then working fast food type jobs. For one, it's 100x easier to get a job at McDriveThrough then it is to get hired on as a federal employee. I'm talking from personal experience here.
I didn't say anything about molesting children. You are confusing my comment there with someone else's. I'm also not calling anyone names.
At the very _best_ what I'm describing are inefficiencies in our system, and anyone who's working for that system is part of the problem.
Normal people just choose another job.
You're using "fighting words" which is not speech that is protected under the first amendment.
The common response to fighting words like this is a fistfight. In this case you're making a coward's bet that they value their source of income enough not to kick your ass.
A police officer might have (legally) arrested you for trying to start a fight.
I don't see how anything you've said supports the characterization of "cowardly", unless you mean I was wrong to say something that could be classified as "fighting words" and then not back it up with fighting.
Is this situation different? Is the difference one of quality or quantity?
It appears to be provoking a kneejerk response from people who don't want to address the question.
Which is the whole problem - the "breach of the peace" occurred when the uniformed gang setup shop to assault, detain, and molest people. What I did was to just not entirely peacefully assent to their rule, which necessarily involves shooting from behind trees. We certainly could use more of it, lest we want to end up having to literally shoot from behind trees.
You're hiding behind their own civility and restraint. The same way many women think they can freely attack a man under the assumption that many men don't want to hit a women. It's cowardly to use someone else's self-control as a weapon against them.
And you should realize that your personal opinion that they're fascists and child molesters is not even close to a proven fact. It's a slanderous and exaggerated characterization that very few reasonable people would agree with, even those that do not like the TSA at all. Try reporting their "child molestation" to any law enforcement anywhere in the world. No judge and no jury would convict them of your charge. It's not so much different from calling a doctor that checks a child's testicles for problems a molester. Context makes all the difference legally and ethically. You disagree with the ethics but that doesn't make you right. Legally there's no question that you're wrong.
I didn't ask myself the best way to protest the TSA, and then choose to go find some agents in a grocery store. I was there to buy groceries, which I still accomplished.
> you wouldn't use fighting words like this in a context where you believed they might respond like many reasonable people would: a punch in the mouth
I think our disagreement is fundamentally based on your considering it reasonable for someone to respond violently to a verbal insult? This is going to depend entirely on personal and local culture, and I do not have such expectation. I'm used to the response being a quicker retort, and going your separate ways. If someone resorts to starting a fight it's an automatic loss in the court of public opinion.
> your personal opinion that they're fascists and child molesters
They're patently fascist, having power due to the synergy of government and corporations. Ping-ponging between the two legal regimes is the basis of being able to force you into a warrantless search, yet still dole out federal penalties.
And they're plainly molesters - both with the rummaging through our personal effects, and every time one of their hands brushes my nuts. I personally don't have direct evidence to warranty "child" (although I would imagine they would have to be fondling them too?), but it is a concept our society understands.
Fighting words - with regard to insults - is a purely childish concept. No reasonable person would punch someone in the mouth over an insult. The word you're looking for is immature - not reasonable.
I'm no fan of the TSA, but do you think that was productive?
Maybe direct your ire at the people at the top who make these policies instead.
There's been progress on that front with several Trump administration officials confronted while dining for example.
There's a fair discussion about "was the way you confronted them that of a professional adult" but at the end of the day, I'm finding it hard to honestly be too upset at the language used outside of a very token "tsk tsk". TSA has not had a history of treating my wife and I respectfully so it's difficult to reciprocate, and can even see the argument that by adding social friction to working there you erode their ability to push policies like this if workers go "wait this may be a bad idea that may make people really angry at us." ESPECIALLY now that there's no real legal recourse outside of petitioning congress.
(An anecdote: I was very sick going through security recently, extremely sleep deprived and falling over without support, they pulled us over to secondary screening and refused to let me sit down while they were checking my bags, ended up vomiting into a trashcan while the agent gave me lip. Turns out all this was over a pair of nail clippers the wife forgot she had packed... and on the RETURN trip.)
Nail clippers are not allowed now!? I fly with nail clippers all the time (including to/from the US) and have never had an issue. Looking at the TSA site, nail clippers are explicitly permitted as well . Was the agent actively looking to hassle you?
Both are complicit in far worse IMHO.
From a certain point of view, it's better for the TSA agent to be soiled with vomit than it is to allow a potentially contagious passenger on what may be a very long flight.
It's the little things. As he stated, the agent wouldn't let him sit down and it was over a pair of nail clippers. Perhaps the vomit wouldn't have made them blink at all, doesn't mean I wouldn't get some form of enjoyment out of it. Sounds like the agent was being a prick. Are we surprised?
I'm no slave to civility by any means, but I am mindful that screaming at a couple off duty agents trying to shop, who I've had no prior interaction with, probably does not help my cause ;-)
I do think it is useful to influence what is perceived as being the general consensus. Both generally for public opinion, and specifically to undermine the organization's morale. In fact, that's also what my comment was doing here - given that courts have no problem continuing to bless this fascism, it's about the only hope we've got.
How much of the support for say the Iraq war was due to simple herd consensus - that feeling that you expect any arbitrary person to be in general support of it, and thus talking about it will likely just lead to an irreconcilable argument? "Support the troops" is a motte-and-bailey setup.
Normalizing the harassment of elected officials is dangerous and it puts us on a direct path towards politically-motivated random acts of violence.
Is this in regards to the "birther movement" or was he harassing politicians in the real world?
Nobody is above criticism, that much is certain, but we shouldn't cross the River Styx into a world where random acts of violence is the preferred method of political expression.
Tell us, what exactly is that difference? What's the difference between going up to Scott Pruitt (when he was the EPA director) and telling him what an awful job he's doing, and when Trump tweets out a gif showing him performing wrestling moves on a personified CNN? Or when he calls journalists the "enemies of the people"?
"Nobody is above criticism, that much is certain, but we shouldn't cross the River Styx into a world where random acts of violence is the preferred method of political expression."
And where the hell is violence being done? Last I saw, the calls for violence have been from the Trump camp.
And the response from the government is that either it's fake news or that they just don't care.
To a lot of people this is an injustice. And they have no avenue to demand change.
These people ruin lives. Imagine what kind of mental trauma these children will have for the rest of their lives.
And they get upset that people don't treat them with respect when they go about their lives.
Anyway, gotta jet and get home. Probably gonna walk past the only abortion clinic within 500 miles that has bulletproof glass windows and got firebomed for like the 30th time last week and over the past 20 years by right-wing terrorists. This is normal and not strange at all. I do it every day I'm not working from home.
Or see it headed off by declaration of martial law.
The powerful political actors realized they could just physically intimidate and impede their opponents with gangs. No one that believes in a functioning society should support politically motivated violence of any kind.
These agents still choose to carry out those policies.
What is the progress / outcome? Have there been any changes in policy resulting from public confrontations?
I hadn't realized that was his stated reason for doing so.
Thank you for providing a real answer instead of just downvoting and moving along!
 - https://www.cnn.com/2018/07/05/politics/scott-pruitt-epa-res...
No there hasn't. It just makes everyone think these are petulant children. They ask for respect and equality of others but don't wish to give it to anyone who doesn't agree with their ideology.
In this case, "doesn't agree with their ideology" actually means, "Believes that many classes of people don't deserve human rights".
But in the instance of the comment in question, I think it was pretty clear that it was the protesters who were acting like petulant children.
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.
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?
Detention at an airport security checkpoint is not kidnapping.