Affection

Regarding this one, I'm fairly confident the district court will find that it has jurisdiction. Only challenges of an "order" given by the TSA need be filed in the Court of Appeals, and I expect that a distinction can be drawn between "challenging an order" (like the TSA's SOP) and "challenging an instance of a search."

Regarding retaining an attorney, this is not my first foray into federal lawsuits, and at this point, I'm very comfortable with the procedure. I've also found that any time in the past that I have brought in a "real lawyer," it's never gone as well as when I do it myself. We all know it's a huge financial burden to bring on an attorney, and deciding whether or not to file an additional document based on cost becomes a detriment to the case. Right now, the government can't win the suit by eating up my resources, and that's important.

Research for this case is my new part-time job. That said, if you guys have any attorney friends or connections who would be willing to look over filings and give advice pro bono, I am happy to use any competent resources I can find.

--Jon

FriendlySkies

I call total BS on this statement. TSA has started to appear at train stations, bus terminals, and on the highways in Atlanta. What method of transportation do we use after those all have the NoS? Good luck OP! ^

MDtR-Chicago

Also interesting that the response directs him to use an airport without AIT... hooray for a temporary solution. (That isn't even a solution, since he might still get the pat-down anyway.)

Superguy

I'd be willing to donate to a lawyer fund for this, even if for some consultations.

Which court did you file this in? Maybe knowing that, some of the resident attorneys may have suggestions for an attorney in that area.

clifc

Liked your complaint, but . . .

Have you previously briefed and argued a case at the appellate level? Or laid the groundwork during district court hearings and trial for an appeal? Best legal outcome I ever had was by doing the grunt work myself and handing it to an attorney on a silver platter to argue.

I'll join some of the other posters and say it's critically important to have a trial lawyer somewhere on your team who is experienced in that circuit and who knows the procedures and the judges' proclivities. Otherwise my fear is that DOJ's best will bump you out on a 'technicality'.

However, I'm not there in your shoes. Best of luck.

Affection

Much of the work in a federal lawsuit is not in the courtroom, but rather in written arguments. Right now, a motion for a preliminary injunction in my lawsuit against the TSA is in front of the court, and the US replied in opposition (naturally ). I’ve spent much of this week preparing a reply to their opposition, and I think I’ve produced a quality argument.

Let’s make it even better. Some of you may have legal experience, many likely do not, but it doesn’t require a law degree to make a coherent argument. So, I open the floor to you for your review, thoughts, ideas, and suggestions. Anything from a comma out of place to a great piece of case law you read that you think might fit.

My draft document is linked below. Some rules:

1) The document gets filed on Monday, so the earlier you reply, the better. The latest reply that I can look at before filing is Monday at 9:00 AM.

2) This is essentially a reply to the government’s reply. Please read the government’s reply first (linked below). As background information, the motion at hand is a motion for preliminary injunction against the TSA using nude body scanners on me or “touching my junk.” (Preliminary injunctions are supposed to be narrow in scope, which is why the motion only relates to me, however if the motion is granted, the door is open for anyone to sue to get relief, not to mention the TSA will be forced re-look at their actions!)

3) You can post your thoughts in the thread or e-mail me directly -> jon at fourtentech.com.

4) Nothing will be construed as “legal advice.” You are either not a lawyer or are a lawyer giving a personal, non-professional opinion only. No attorney-client relationship created, and no compensation due.

Thanks for helping! I know that we all wish that there were something we could do to make this better, and hopefully this is a step in that direction. Together we can beat them!

–Jon

Government's Opposition (.pdf)
My Reply to Opposition (.pdf)

WindOfFreedom

Correct spelling of Stipulations.

should be "no fewer than two bills" (not "no less than two")
sorry for the nits; I'm an editor, not an attorney.

for "it would be tough" substitute "it would be difficult"
(more appropriate language for the level of discourse at hand)

Affection, when all the legal nits have been picked and you deem that this document is ready to go, please pm me the resulting PDF. I will put it under the punctuation/grammar microscope, correct the PDF (which currently presents with some shortfalls not worth going into publicly), and send it back to you as my very small contribution to the effort toward justice for all.

aviators99

I think the District Court will jump at the opportunity to dismiss on jurisdictional issues, as it doesn't really prejudice you much to insist that it be filed in Appellate Court. You should start to prepare the new suit for the Appellate Court.

FriendlySkies

Undie bombers name is Umar Farouk.. I've seen Farook a few times..

Affection

Thanks all so far! WOF's changes have been made. The spelling of the underwear bomber is how the government spelled it in their reply, so I'll leave that for consistency.

Regarding jurisdiction, I'm very much hoping the District Court sees it my way, as I do think that filing in the CoA would prejudice the case. The biggest reason is that there will be no jury, which is exactly why the government wants it there. The courts have gone both ways on the jurisdiction issue, and if they rule against me on that issue, I plan on appealing that ruling. On that note, I'm quite sure that if they rule in my favor, the government will appeal that ruling. Either way, it looks like this case will make at least a brief stop in Atlanta.

--Jon

WindOfFreedom

Do let me say that I followed your argument with fascination. You could well be speaking for all of us (you certainly did speak my mind); let us hope the court realizes this and rules accordingly.

dgcpaphd

Page 12, nine lines from bottom of page - word misspelled - you have scaner - it should say scanner.

-

waywardmars

You mention travel between the US and foreign countries in the section regarding the right to travel = the right to air travel. Haven't done any research but can anyone confirm/deny whether the right to travel includes out of the country? Or does it only include the right to interstate travel?
I was under the impression that it was only the right to interstate travel and thought I'd bring that up in case it's a legal inaccuracy.

(Hi - been reading for awhile but this is my first post.)

aeleva

Engineer with an english minor, no lawyering experience, just reading it like an argument essay:

Overall things:
- I'm VERY glad you are doing this -- grateful that someone is brave enough to try. That being said, to my naive eyes, this document needs a lot of work in the way of changing the language to make your arguments sing. Many of them are bogged down in extra clauses and emotional side-comments that don't further your cause or add to your credibility. So keep that in mind for the re-reads.

- I am not a lawyer and this is the first of such arguments I have ever read. HOWEVER, that being said I think you should reread carefully for colloquialisms and other "common speech" and do your best to make this as professional and unemotional as possible. I point out a lot of them below, but my overall impression of the document is that it is written by someone who is emotional and unnecessarily wordy.

- A lot of times you take two or three clauses to say something that could have been said in one. Simplify. This document could easily be only 60% of the length without losing any content if each sentence is carefully reviewed and put in concise terms. I recommend carefully rereading a second time to do this.

- Also, this sounds like the document is supposed to be in the 3rd person. I see "I"s and "we"s all throughout. Clean those up and pick a consistent tense. For example "As discussed earlier in this document (General Reply, Section III), CORBETT, in his complaint," and "With respect to gravity, we all understand that the consequences of a midair terrorist attack would be quite grave."

From the beginning:
- inconsistent quotes on section 3 title

- "the underwear bomber" is referred to in lowercase in the paragraph while "The Shore Bomber" is all upper-case. Pick one and stick to it.

- for the argument about the shoe bomber -- aren't shoes removed and put on the x-ray belt for the NoS+patdown? I got confused here, I know you're trying to say that it's irrelevant, but maybe add in a sentence about: current TSA procedures require the placing of shoes on the x-ray belt, so neither the AIT or the patdown is being used to detect these types of threats.

- Starting a paragraph with an adverb (in the case of "laughably" page 6) makes a weak sentence and seems unprofessional. I would avoid using any word similar to "laugh". Maybe use a reference to irony instead -- but don't start (or end) a sentence with an adverb. It's stronger to just leave off the word.

- page 7 "opting out." The way I learned it, "opting out" is a special term, and the period should go outside of it. Maybe take a look at MLA or some other language standard to verify.

- "sparse and vague signage" this statement about how people probably don't know what is going on is weak because there is no evidence that that is the case. Can you make a more specific argument? Like, "in such and such airport, the signage is x feet away from the device and not visible once a person has been selected" or "there is no evidence of a standard SOP to tell a passenger what the scanner does and his rights verbally before the passenger agrees" or something like that. The word "possibly" probably shouldn't appear in a legal document

- peeping tom looks weird in lowercase. Verify if Tom or both is capitalized in a trusted dictionary

- The whole paragraph that starts with "Indeed" seems a little weak -- maybe it needs to be combined with the one above? The purpose of the paragraph is to say that even though there have been efforts taken to understate the experience of the violation, it is still a violation of privacy. Yet you spend time addressing an issue about "opting out". That doesn't have anything to do with the purpose of the "Indeed" paragraph or even the one before it which introduces your thought. The "opt out" paragraph needs to go somewhere else (or be its own independent thought/response)

- "which in general means the physical genital groping that is also complained of in this case" -- awkward wording -- also, seems like you have evidence of genital groping, so you should just point to that evidence instead of dancing around it

- "However, this choice should not be confused with consent." this is a strong (good) statement. If the paragraph is about building this argument, then put it up front and center in the first sentence, so we know that is what you are building to. It comes as a pleasant surprise at the end, but would be more effective if we knew it was coming.

- "DEFENDANT essentially says that since a lot of people are searched, the whole situation is made better because there is no “stigma.” Another case of a period inside quotes denoting a special term -- double check. Also, this is casual wording. "The whole situation is made better"? That's passive tense. Say something like "Defendant says that since the searches are common, there is no "stigma" at being singled out by the PROCEDURES."

- "It is a well-established fact that humans are more likely to express a certain behavior if others are “doing it too;” this is often referred to as “peer pressure.”" -- I think you could simplify and say "It is well-established that humans are susceptible to "peer pressure". Also "doing it too;" looks super weird with the semi inside the quotes. I don't care if it's correct, it looks amateurish and stops a fluid read. Reword to avoid.

- "as are the uniforms and recently added “badges” designed to make TSA agents appear like law enforcement officers" -- this seems unsupported and not relevant to the point of the paragraph

- want to include something about the statistical improbability of a terrorist attack on airplanes versus driving? I think it might fit in with your anti-"anything for safety" paragraph. You could say that the corollary would be a breathalyzer starter in every car. (anything reasonable and justified in preventing X, whichI take to mean as innocent deaths)

- in the anything for safety paragraph "whether DEFENDANT likes it or not" sounds WAY too casual, OMIT.

- "depending on the outcome of discovery, which, upon evidence and belief, will show that the DEFENDANT knows that these machines are of minimal efficacy against well-concealed explosives." How do you know the defendant knows this? Is there evidence submitted in the case? Otherwise it seems weak and awkward language. You could say simply that there is doubt about the efficacy and point back to the previous statement about the underwear bomber and the Bob S. article about how it probably wouldn't have detected it.

- "The DEFENDANT’s opposition states that “[t]he fact that not every passenger is subject to either AIT or a standard6 pat-down does not invalidate these methods of screening,” though it would seem that one could gain insight into the gravity, or lack thereof, the TSA places on its use of the PROCEDURES." You could add a citation from what Pistole said about only 1%-3% of people being searched in this way, seems like low gravity to me. Not to mention most are women, but that's a different story.

- page 9, you say 20+. Too casual. Numbers under 100 should be written out. Say "over twenty pages". Simplify the sentence it's in. Suggest something like: "The defendant has chosen to ignore this vital efficacy issue, a factor in the constitutionality of the searches, even though the defendant has includes over twenty pages of blah blah blah"

- all of the numbers on page 10 (that aren't years) should be spelled out!

- "unless the DEFENDANT is suggesting we go back a century and return to travel by boat." This sounds like a cheap shot. Say that commuter boat travel between X and HI is essentially non-existent, and someone would have to take a luxury cruise. I suggest omitting what you have above, it's unprofessional.

- "CORBETT is unaware of how long a boat ride to Hawaii would take, but he imagines that it’s long, especially if you combine it with the cross-country train trip that the DEFENDANT suggests." -- Why don't you research this, say "approximately seven days" or whatever it is.

- trips to Alaska would require a US Passport, which should not be a requirement to travel between states.

- I don't think you hit the "business" angle on the head hard enough. Some people must travel to retain their jobs, it's non-negociable. This would then require those people to choose between their constitutional rights and feeding their families.

- "As the TSA expands its role, it is CORBETT’s great fear that the next logical step in the TSA’s progression is to use AIT devices on trains and/or buses, at which point the TSA will have to upgrade its current standpoint of, “if you don’t like it, don’t fly” to be a bit more inclusive. How many modes of transportation must be ruined by the TSA before a court draws the line?"
This is wordy, you can simplify. Also "ruined" sounds like a kid saying Christmas is ruined, not very professional. I suggest something along these lines "As the TSA expands its role to other forms of transportation, the argument that the search can be avoided through other means of transportation is weakened. Even privately owned trucks and cars are not guaranteed to remain private, as shown by the TSA's recent roadside checkpoint with drive-through AIT machines. (look to the other threads for a link to the article) The rules and decisions in the courts on this vital issue of airport searches will likely be used as precedent to future cases that may include other essential transportation that the defendant points to as alternatives to the PROCEDURES, and therefore the argument is not valid.

- Never end a sentence with a preposition (or start one for that matter): "Without air travel, CORBETT’s businesses would also be irreparably harmed, and monetary compensation cannot fully compensate for the loss of something one has worked their whole life for." Reword to say "compensate for the loss of a life's work (or livelihood)"

- "damned if you do, damned if you don't" is too colloquial -- omit and just say that you are in a situation where there is no action to take to avoid violation of rights.

- " so absurd that they approach a misrepresentation so blatant as to be deserving of sanctions" too many SO's in one sentence.

- "“cleverly” tries" omit cleverly, adverbs are weak and this just sounds like emotion

- "However, perhaps CORBETT should have mentioned in his complaint that the one airport he was scheduled to fly through without nude body scanners was actually in a foreign country." Speculative, simplify. Say something like: "The one airport CORBETT was scheduled to fly through without nude body scanners is located outside the US." Although the argument is supposedly moot anyway, since you say that just because that's the case now, doesn't mean it will be later.

- Point of View TRAGEDY! "Let us do some simple math. Should CORBETT fly 25 segments next year, as he at least did this year," Mixing second and third person. Stick to third. Omit "Let us ... math"

- why did you choose 10%? That weakens your case. What do you get if it is 1-3% as advertised?

- "However, the option to accept a pat down that does not involve genital touching is no longer an option, and such is the basis for this suit." Too many uses of the word option in one sentence.

- "The DEFENDANT states that this “does not mitigate the harm to the government’s interest in national security,” however does the DEFENDANT expect anyone to take seriously the suggestion that there is no difference in risk between allowing one individual to not be subjected to the PROCEDURES and allowing all individuals to not be subjected to the same?" This is a very long sentence, recommend breaking up into at least two. Also, I would note that some people have already publicly given a free pass on the procedures, so they have already begun the process of exemptions -- and you are just looking for one for yourself. (look to the indian ambassador and reports of officials with security details for some credible evidence to reference).

- "Disregarding the offensiveness of this comment" is too emotional. I know you feel it, but you don't have to say it. Focus on the facts.

- "US citizen has never terrorized an aircraft" are you 100% sure this is true? Maybe bound it to make it less likely to be unfounded, like an American has never terrorized an aircraft in american airspace or something like that". Still seems like a dangerous statement to make. Maybe focus on the converse. "All terrorized aircrafts in US airspace have been the result of foreign individuals, who boarded the plans on foreign soil". That seems more easy to defend.

Another thought:
- there might be a place where it is worth saying that the purpose of the machines is to find WEAPONS and anything else that could take down an airliner, not drugs or other contraband that pose no threat to the flying public. That way, if they come back saying "look at all of the bad stuff we found", you have already outlined that most of them are inadmissible since they were not a threat to the flying public.

TXagogo

I did not have the time to do an absolute inspection of the document, nor did I have time to read the entire lengthy post prior to this one so forgive me if my suggestions below have already been mentioned. By the way, great job and I wish you much success in taking a step toward ending these terrible intrusions by our government.

1. Page 2, part II, next to last sentence: Suggest the sentence should read as follows:

"Rather, the TSA has decided on them unilaterally."

2. Page 7, 3rd Paragraph: Suggest consistent use of the word "one" as opposed to interchanging with "you" or "yours" to read as follows:

"When confronted with an option of having a government agent look at one naked, physically touch one's genitals, or not be able to see one's family..."

I think this is a very good suggestion. They are going to pull out all the stops to show that their procedures are effective. They will likely use "Look at how great we are - look at all the DRUGS we've caught!"

If they want to catch drugs they can go work for CBP. This is about security againt weapons, explosives, and incendiaries. Eliminate this avenue for them by anticipating it before they try to present it.