Originally Posted by
nhcowboy
No, you're not a lawyer. So I'll make this simple. The quoted regulatory provision is just that - a regulatory provision. Not a statute. And it regulates, as clearly stated, "aircraft operator[s]." Not passengers, aircraft operators.
So it in no way obligates any passenger to accede to the demands of a TSA gate-checker. Can your airline refuse to allow you to board because you haven't complied with a TSA screening demand? Perhaps, but that's between you and your airline. And I'd certainly argue that the airline (although it may be able to deny you boarding because it doesn't like the color of your shirt) cannot legitimately deny boarding due to its inability to "ensure that the individuals or property have been inspected by TSA before boarding" - given that you had to have been inspected in order to reach the gate area.
And it doesn't have to. So long as there is other law that prohibits gate screening, it is prohibited. In this case, that "other law" would be ones constitutional right to be free of unreasonable search and seizure.
You're right, it doesn't say passengers. It says individuals as it pertains to being allowed to board the aircraft, that sounds like the passengers to me. Being regulatory vs. statute is semantics. Traffic laws are regulatory as well, doesn't mean they can be ignored.
They can, and have, denied boarding for not complying with the gate screening. Not anecdotal, I've seen it happen.
Since the ID check, property checks, etc are covered under administrative searches at the checkpoint, how does doing the same check suddenly go into 4th amendment issues simply because the location has changed to the gate, prior to boarding?