saizai

For some of them, yes. TSA's standard CCTV MOU — available at https://s.ai/foia/#tsa — specifies which cameras are to be PTZ (pan/tilt/zoom) and which are to be fixed. The two videos I posted are one of each type, as it happens.

Also, per Memphis Airport's general counsel: "You got whatever video that exists to the best of our knowledge."

So, this is probably all the video that's going to be available. I'll still follow up w/ TSA of course (who've not responded to my FOIA or the lawsuit), but I don't expect anything further.

Section 107

From either of these two videos you can see what the TSOs see on their monitor that causes them to require an additional search? That is truly impressive.

Boggie Dog

Guess my vision isn't as good as yours. I can't see the Gumby screen image. Will look harder.

saizai

TSA filed motion to dismiss.

Updated my page on it. Haven't tl;dr'd TSA's MTD yet though.

Boggie Dog

One of governments claims is that ADA does not apply to federal government. Is that correct?

flyerCO

It depends. Yes in some case, no on others. There's different sections to ADA and some do apply, some don't, and some only apply in certain situations.

petaluma1

That's overbroad but in trying to find references to the TSA and the ADA, they don't seem to exist. What I can find states:

https://www.access-board.gov/aba-enf...ther-resources

It seems to me that with that statement, the TSA has admitted that disabled passengers have rights. Where did those rights come from? The ADA?

However, the TSA Cares page doesn't say word one about complying with the ADA.

I'm sure Sai can answer any questions about the TSA and the ADA.

In other reading of the motion to dismiss, I note that the government says:

- Good Christmas that was a dumb thing to include when it can easily be proven that she has physical and mental impairments. So typical of TSA to denigrate.

Also, TSA claims that Hannah did not

Further in the document it is written:

What does the Rehabilitation Act have to do with getting through security at the airport? Again, perhaps Sai can explain.

Section 107

Simply put: the Rehab Act provides that the federal government and its contractors cannot discriminate against someone by denying a service (or employment) because the person has disabilities and the facilities of the government or contractor prevent the person from accessing the service (or employment).

Put another way: if entry to building can be achieved only by a flight of stairs and a person who can only move about via a wheelchair wishes to use a service in the building, then the federal government must rehab the building to accommodate the person or make other reasonable accommodation to ensure the person can access the service.

In this case, the guvmint's defense is that Hannah was not denied access to the screening checkpoint and therefore no claim under the Rehab Act is possible.


The ADA does NOT apply to the Executive branch of the Federal Government because the Rehab Act applies to the Executive. However, the ADA does apply to the Legislative Branch.

The government's lawyers not so subtly say that the Cohen's lawyers are a bunch of incompetent boobs and have completely screwed their clients with this amateurish and premature filing. I do hope we get to read the plaintiff's response to this MTD.

Boggie Dog

Are the lawyers for Cohen incompetent?

Section 107

Well, it appears to me (and I might be wrong) but the guvmint says plaintiff's lawyers are 1) not all clear which entities are being accused of violating which laws; 2) making a claim under ADA which states an executive agency is not subject to the ADA, 3) making a claim for monetary damages which is not allowable the law, and 4) did not follow the simple administrative procedures as stated by the law which means not only is the claim unallowable but the claim cannot now be made under the admin procedures nor brought up again in court.

If the gubmint is correct then it sure seems the Cohen's received some piss poor advice and could have selected more competent counsel.

But one filing does not a career make.

Boggie Dog

Shouldn't Cohen or any other person expect their counsel to take the time to understand a case, determine what laws may apply, and then evaluate the likelihood for success if the client decides to move forward? Just throwing stuff out to see what sticks seems misguided and costly to Cohen unless the case was handled on a contingent basis.

That would seem a reasonable starting point to me.

saizai

Broadly speaking:

Rehab Act applies to the feds and any program funded by the feds.
ADA applies to non-feds, including non-fed cops.
ACAA applies to stuff on planes.

Airports are covered by a mix of all three, depending on exactly who did what with whose money in what part of the airport. (It's a mess.)


However, the screening part is easy enough. TSA is feds, so Rehab Act only. Cops are non-feds, so ADA only.

TSA screening is a federal "program or activity" per the Rehab Act, under which you have a right to access that program (i.e. to be screened) w/ reasonable accommodations for disabilities.


If feds act as agents for non-feds, or vice versa, then there can be cross-application. E.g. if the cops help TSA conduct the screening program, or get money from the feds — rather than just enforcing state/local law — then they can be on the hook for a Rehab Act claim.

TSA has always maintained in court that cops are totally independent of them and only enforce state law on their own decision-making, and that TSA never engages in law enforcement motivated activity. That's basically the thing you'd have to disprove to get cross-application.


The differences between Rehab Act & ADA are pretty technical though. They have fundamentally similar requirements (basically: you have to reasonably accommodate disabilities). It changes all the case law, legal standards, various subtle things, etc. Hard to summarize.

The legal question isn't whether she actually has impairments per se, but whether
a) she was "perceived" as disabled at the time
b) the agents knew or should have known that she was actually disabled and needed reasonable accommodations

E.g. if you have a disability that nobody knows about, and you don't tell them, and you don't ask for an accommodation, (ETA: and it's not something they have to do anyway without being told about your particular situation) then they're not on the hook for accommodating it. (However, they are on the hook if they hurt you from some otherwise unlawful action. "Eggshell" doctrine.)




Architecture has various grandfathering clauses under both, if it was built pre-enactment. That also has caveats (they still have to accommodate), just not necessarily by making structural renovations (like ramps) that would otherwise be required were it built today.

That's not quite the claim. They say that she wasn't denied accommodations. "Access" here isn't just "can you reach the checkpoint"; it also means "can you be screened".

Not really relevant except if you want to sue a congresscritter for employment discrimination…

To be fair, they always say that. A demurrer is pretty much always the first response.

I'll post all the filings as I see 'em. I am monitoring the case, but I'm not on the NEF list.


I'm going to refrain from publicly commenting on the substance of the case, as I have privately made suggestions to Cohen's counsel.

saizai

Case updates:

• 2016-09-02 29 Court Order granting motion to extend 25 - TSA answer due 2016-09-24; plaintiffs' response to defendants' MJPs 2016-10-15
• 2016-09-15 30 Sai (yes, that's me) Motion for leave to intervene, 31 Motion for CM-ECF access, 32 Motion to compel State Defendants to file unredacted exhibit, and for order to show cause as perjury of affiant Brian Kuhn
• 2016-09-15 33 Joint Report re FRCP 26(f) discovery plan, 34 Motion to stay ADR requirements pending dispositive motions

saizai

Case updates:

• 2016-09-21 35 Minute Entry for proceedings held before Judge Sheryl H. Lipman: Scheduling Conference held on 9/21/2016. Kelly Pearson and William Hardwick appearing for the Plaintiffs. James Cresswell and Samuel Keenan Carter for the Defendants. 34 Joint Motion to Stay the Court's ADR Requirements denied - order to be entered. Non-Jury Trial set for Monday, 10/16/2017 at 9:00 AM in Courtroom 4 - Memphis before Judge Sheryl H. Lipman. Trial is estimated to last 2-3 days. Pretrial Conference set for Friday, 10/6/2017 at 9:00 AM in Courtroom 4 - Memphis before Judge Sheryl H. Lipman. Proposed Joint Pretrial Order due by 9/29/2017. Scheduling Order to be entered. (Court Reporter Brenda Parker.) (jpw) (Entered: 09/21/2016)
• 2016-09-21 36 Court Setting letter, 37 Order denying motion to stay ADR 34, 39 Scheduling order
• 2016-09-21 38 MSCAA Corrected (unredacted) exhibit 20-1, 21-1

38 is in response to my intervention as member of the press, 30-32 (above).

Maybe now they'll have to pay me the 10 bucks or so it cost me to have it mailed, or answer to why their records custodian lied under oath about having submitted a true copy of the record.

FWIW, I did ask them nicely first to just fix it, but they ignored me. Ah, well.

(And yes, it is pretty trivial that he redacted that TSA paid $48k/yr for janitorial services. But it's still perjury and altering an official record.)

saizai

2016-9-23 Cohen 40 Response in agreement with MIAPD MJP 23, 40-1 Memorandum;
41 Opposition to MSCAA MJP 22, 41-1 Memorandum;
42 Opposition to TSA MTD 28