Last month the US District Court for the Eastern District of Virginia (the original so-called ‘rocket docket’) ruled in Linlor v. Polson that individuals may have a private right of action for constitutional rights violations at the security checkpoint, over objections from the TSA.
As a result a man who says a TSA screener “rammed his hand” into the man’s genitals, causing the passenger to “bend over and step away in pain,” during a screening that was the result of opting out of naked imaging at Washington Dulles airport in March 2016 may seek damages based on excessive force. (HT: Eugene Volokh)
Plaintiff alleges that Defendant took this action out of anger, either intentionally or recklessly, and that Defendant subsequently laughed and refused to apologize.
Police were summoned after Plaintiff complained of “aggravated sexual battery,” but the police officers refused to take any action against Defendant.
Defendant’s coworkers stone-walled Plaintiff when he attempted to gather the names of witnesses.
The question at law is whether an individual can sue a federal official who violates their constitutional rights. The ability to sue federal law enforcement officials is highly limited.
The precedent is Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) but courts are reluctant to extend Bivens into new contexts especially where the government provides another “process for protecting the interest” of the individual.
The TSA made a series of arguments which range from offensive to absurd and the decision was explicit that “the Court has little difficulty concluding that the alternatives suggested by Defendant are no alternatives at all.”.
- The TSA argued that instead of suing for damages, the passenger should “have filed a petition for review of those procedures in an appropriate court of appeals pursuant to 49 U.S.C. § 46110”
However the Court wasn’t fooled, pointing out that the man wasn’t seeking review of TSA procedures or review of an order issued by an aviation authority. The whole point was to challenge a discrete instance of abuse which could not have been lawfully authorized by TSA.
Defendant’s alleged use of excessive force in intentionally and gratuitously striking Plaintiff’s groin. Plaintiff seeks compensation for a past wrong, not prospective relief from considered agency action. The statute Defendant cites is simply inapplicable to the case at bar.
- TSA says the passenger should have complained through the agency’s own contact center. Since they offer a contact center as a means of redress, there shouldn’t be a right to sue.
The court didn’t find that to be ” a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.”
[T]his is, essentially, a consumer complaint hotline. It is not clear what, if any, relief a complainant may receive. It appears that the “Contact Center” affords individuals only the bare opportunity to make the TSA aware of a complaint.
- But ‘national security’ to which the Court replied invoking those words is not license to take any action desired without review or redress. Indeed, the TSA failed to explain to the court how a TSA agent hitting a man in the groin is a national security issue.
How punching a man in the groin is related to national security is, indeed, a mystery.
- You can’t sue the TSA. It’s often the case that the government says you cannot sue it, but Courts have held that “qualified immunity” doesn’t apply when violating a clearly established constitutional right.
The TSA knows this, but suggests the court just consider that “the intrusiveness during the standard pat-down screening procedure was minimal” and not look to the “hand ‘ramming’.”
At this point the Court assumes for the sake of argument that the facts presented by the passenger are true. They haven’t made a judgment on those facts. They’ve simply argued that if true, the passenger can sue.
That this was even an issue, and that the TSA disagreed, is the shocking part.
Of course this incident occurred a year before TSA decided that all pat downs should become more ‘intimate’ so that screeners wouldn’t have to think so hard about when to apply more rigorous pat downs. And it’s before the TSA developed the argument that it’s not sexual assault when the government does it.