Earlier in the month I wrote about a federal court mocking the TSA’s claim that a man shouldn’t be able to sue after he says he was hit in the groin by a screener. The court found the TSA’s positions to be absurd.
Not every court is so skeptical of the ‘national security exception’ to having our rights abused in extraordinary ways by the TSA, however.
Roger Vanderklok was flying from Philadelphia to Miami. He found a TSA supervisor ‘rude’ and ‘aggressive’ and asked to file a complaint. In retaliation the supervisor claimed Vanderklok made a bomb threat. He was arrested, charged with among other things making a terrorist threat, tried, and acquitted, cleared by TSA surveillance video (which essentially proved not just that the TSA agent made a false accusation, but lied under oath about it).
He sued. One of his claims, that retaliation for petitioning the Government for a redress of grievances, violates the first amendment (and is thus violated a clearly established right) was thrown out by the U.S. Court of Appeals for the Third Circuity in Vanderklok v Kieser concluding that the TSA agent was immunized against the claim.
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. A federal District Court held there’s a pre-existing right to sue under Bivens for retaliation, but the Third Circuit ultimately held there’s no such established right to sue the TSA for retaliation.
The qualified immunity dispute centers on whether a First Amendment right to be free from retaliation by a TSA employee was clearly established at the time of the incident in question.
Courts have held that “qualified immunity” doesn’t apply when violating a clearly established constitutional right. However among other things the government says that although they call screens ‘Transportation Security Officers’ they aren’t law enforcement officers so can’t be held to the same standard of knowing what rights are clearly established.
The government argues in essence that TSA incompetence is so ingrained that the law should expect it, and cannot hold its employees to a standard of not making false retaliatory accusations against passengers. And the Court buys this in the name of national security, even though this level of incompetence undermines security.
Retaliation cannot possibly be part of the government’s plan for security, and so the TSA agent cannot possibly have been acting within the scope of his duties.
TSA Agents in Charlotte Watch News of the TSA’s Failure to Detect Weapons and Bombs, Instead of Searching for Weapons and Bombs (HT: Tocqueville)
However, the Court concludes that the agent cannot be sued for retaliation because doing so implicates “the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.” And we’re not allowed to sue under Bivens “in a case involving the military, national security, or intelligence.”
TSA employees like Kieser are tasked with assisting in a critical aspect of national
security – securing our nation’s airports and air traffic. The threat of damages liability could indeed increase the probability that a TSA agent would hesitate in making split second decisions about suspicious passengers.
The TSA can lie, have you arrested, and you have no remedy because 9/11. In other word, the terrorists really have won.