To clarify, I would fully expect that dialog to end in my being escorted from the airport by an LEO eventually. I am assuming the result would be a Double Opt Out (the same as the "don't touch my junk" guy). The only difference is I would remind them that I am not in fact opting out of the patdown. They can go ahead with it if they feel it is legal and are not worried about any criminal charges. It's a subtle difference. I would be doing it as an experiment to see how much I can warn them without stopping them from actually doing the patdown. Phrases like "I will consent to any further reasonable search in order to get on my flight, but I will not consent to Indecent Assault and Battery, MGL Chapter 265 Section 13H.

The next time (after rescheduling my flight) I would just say nothing at all when the TSO told me what he was about to do and if he goes ahead and "touches my junk" I would immediately call over an LEO and press charges for indecent assault and battery. And yes that would mean missing my flight and going to the police station. I would assume that the TSO's attorney would go with the "implied consent" defense so these sorts of subtle consent issues might make a difference in getting a conviction.

Actually, in pragmatic real-world situations, Fourth Amendment legal protections are suspended at airports right now. That's the crux of what we're arguing about -- whether TSA has the power to suspend or rewrite federal law unilaterally at locations and times of its own choosing. So, no, if federal law applied everywhere we wouldn't all be so exercised about TSA.

FWIW, here are some links for the federal "Abusive Sexual Contact" law:

http://codes.lp.findlaw.com/uscode/18/I/109A/2244

http://www.law.cornell.edu/uscode/18/usc_sec_18_00002244----000-.html

Most of it requires sexual intent, but note section b:

[emphasis mine]

Seems interesting, but it's really only an issue if you live in a state like California that doesn't specifically have any laws against genital touching without sexual intent. Not being a lawyer I have no idea whether you can prosecute under federal law if there is no state law that directly applies.

You can apply the law of any juridiction containing the area where the event happened. But that law you cite only applies, as it says, in special jurisdictions (such as on ships).

As to BearX220's comment, the Constition and Federal law aren't the same. And also, nobody claims that the 4th Amendment doesn't apply at airports: that amendment doesn't prohibit all searches, just some, so the legal issue is whether the search is permitted under the 4th Amendment or not, not whether the amendment itself applies!

I would assume that would include military bases and other federal reservations. Could it stretched to the checkpoint?
When Pissy said:
"Nobody likes to have their 4th Amendment violated going through a security line, but truth of the matter is, we're gonna have to do it."
He told us that this is not a reasonable search. Otherwise there would be no violation happening.
http://www.youtube.com/watch?v=nArQTg88k6U

Well, federal statutes must be constitutional, that's all I'm saying.

As for the Fourth Amendment and airports: this has all been discussed in detail elsewhere in this forum, but airport checkpoints are designated administrative search areas where by entering you're deemed to have agreed to the kind of search-without-probable cause you don't have to undergo in other public areas. (In other words, you have to put your bags on the belt even though you've done nothing to suggest you're a terrorist.) That in itself is extra-constitutional, but we've long accepted it. The question now is whether peering inside your underwear, stroking your sex organs, etc. coupled with threats of arrest or large fines if you demur or even simply try to exist the process can also qualify as reasonable "administrative search." Betting is that it certainly does not, especially as so many TSOs have conceded the patdowns serve no security function -- they are performed simply to cause psychological violence to the subject.

In other words, we know the checkpoint is a zone where constitutional strictures against "unreasonable search and seizure" don't apply. Now we're just seeing whether the government really can stroke your junk while threatening to arrest you if you don't stand still for it, all without probably cause. Wrong? Perverse? Inherently un-American? Yes, yes, yes. We're going to find out if that matters.

Oh I see. I guess I was reading it wrong. I was reading [special maritime] and [territorial jurisdiction] as 2 separate areas. I wasn't applying the word "special" to territorial jurisdiction. I was interpreting "territorial jurisdiction" to mean anywhere in the US and maybe places like Puerto Rico as well. Legal language can be tricky.

But you realize that by asking them not to check certain places they are just going to have a reason to check there. Although you might not like it you've got three choices. Use the scanner, get the pat down, or don't fly. If it's such a problem then just refuse to fly until it changes. Bribing the TSA isn't going to do anything

You cannot file criminal charges against anyone. You can call a LEO to file a complaint. It is not the same thing. The prosecutor will decide if criminal charges are warranted and what those charges would be. You are also not going to force a LEO to arrest anyone. The officer will most likely in a situation like this take statements from all involved and any witnesses willing to give a statement and write a report. The report will work through the process and the prosecutor will decide what charges if any would get filed. No one is going to leave in handcuffs, unless the subject starts to make a scene because he or she doesn't agree with what the LEO does.

FB

How about just staying at home like I am this holiday season. That is the ultimate insult to the TSA. If in time more and more people decide NOT to fly, the airlines will feel the pain.

I honestly don't think the TSA cares, however I'm happy to be home.

Generally when I fly somewhere I am moving there. As in to live. I don't take vacations per se. I can delay the flight, but it isn't really optional. Since I live near Boston I could theoretically get a flight from YUL (montreal) and bypass the TSA entirely if necessary. There are also 2 nearby airports (MHT and PWM) which don't yet have the scanners, but I'm sure that will change in time.

Also, presumably if I Double Opt Out enough times I will eventually make my flight without having to suffer either the gape or the grope.


That's what I meant. I just didn't know the correct terminology. So it's called "filing a complaint" then? Fair enough. I'll remember that. What would I actually say to the LEO? "I would like to file a complaint against this TSO for touching my genitals"?

So there's nothing I can do at all to point out that he violated a particular law?

I certainly didn't mean to imply that. I was just trying to picture what would happen if a woman reports to the police that she was raped, because of course sexual assault is a similar sort of crime. I would assume the person accused of rape would at least be formally question by the police, but I fully admit that when it comes to the law I know almost nothing.

http://codes.lp.findlaw.com/uscode/18/I/1/7

The term "special maritime and territorial jurisdiction of the
United States", as used in this title, includes:
(1) The high seas, any other waters within the admiralty and
maritime jurisdiction of the United States and out of the
jurisdiction of any particular State, and any vessel belonging in
whole or in part to the United States or any citizen thereof, or
to any corporation created by or under the laws of the United
States, or of any State, Territory, District, or possession
thereof, when such vessel is within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of
any particular State.
(2) Any vessel registered, licensed, or enrolled under the laws
of the United States, and being on a voyage upon the waters of
any of the Great Lakes, or any of the waters connecting them, or
upon the Saint Lawrence River where the same constitutes the
International Boundary Line.
(3) Any lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by the
United States by consent of the legislature of the State in which
the same shall be, for the erection of a fort, magazine, arsenal,
dockyard, or other needful building.
(4) Any island, rock, or key containing deposits of guano,
which may, at the discretion of the President, be considered as
appertaining to the United States.
(5) Any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation created by
or under the laws of the United States, or any State, Territory,
district, or possession thereof, while such aircraft is in flight
over the high seas, or over any other waters within the admiralty
and maritime jurisdiction of the United States and out of the
jurisdiction of any particular State.
(6) Any vehicle used or designed for flight or navigation in
space and on the registry of the United States pursuant to the
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies and the Convention on Registration of Objects
Launched into Outer Space, while that vehicle is in flight, which
is from the moment when all external doors are closed on Earth
following embarkation until the moment when one such door is
opened on Earth for disembarkation or in the case of a forced
landing, until the competent authorities take over the
responsibility for the vehicle and for persons and property
aboard.
(7) Any place outside the jurisdiction of any nation with
respect to an offense by or against a national of the United
States.
(8) To the extent permitted by international law, any foreign
vessel during a voyage having a scheduled departure from or
arrival in the United States with respect to an offense committed
by or against a national of the United States.
(9) With respect to offenses committed by or against a national
of the United States as that term is used in section 101 of the
Immigration and Nationality Act -
(A) the premises of United States diplomatic, consular,
military or other United States Government missions or entities
in foreign States, including the buildings, parts of buildings,
and land appurtenant or ancillary thereto or used for purposes
of those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or
ancillary thereto, irrespective of ownership, used for purposes
of those missions or entities or used by United States
personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supersede any treaty
or international agreement with which this paragraph conflicts.
This paragraph does not apply with respect to an offense
committed by a person described in section 3261(a) of this title.

I indicated that statements would be taken by everyone involved. You have hit on the major problem with this line of thinking to protest the TSA pat downs. There is no comparison to someone getting a pat down while clothed to a woman being raped. In most cases of women being raped, and men for that matter since that action is not limited to women, their is some type of physical evidence of the event taking place.

Law enforcement is very aware of the laws that are in play here. They are also very aware of the difference between a true sexual assault and someone using the law to protest a government action or political policy. That is why you more than likely are not going to see someone carted off in handcuffs. The officer is going to pass the situation off to someone who is much more comfortable playing the political game. In a case like this it would be the prosecutor, who in most places is an elected politician, that is going to be the player. That is why you have DA's such as the one in California stating that they will prosecute cases like this. However, if you read or listen carefully to what is said the DA, a political animal, leaves an out so that he doesn't have to follow through on his statement but it makes a great sound bite.

I understand the frustration and the reasoning behind thinking that an action such as this is a good idea. Heck, somewhere it may even work. However, don't expect much sympathy from a law enforcement officer when claiming to have been sexually assaulted at a public checkpoint in the airport. Especially, if you plan on comparing that to a women being raped. The officer in most cases has dealt with too many true victims of sexual assault to be drawn into this type of drama.

FB

Or you could attempt a citizen's arrest. IANAL but from the laws I've seen posted around FT, I wouldn't attempt one in MA though.

Yes, but one way to avoid this particular problem in the future is to understand that there is a major difference between what kinds of laws a state can pass and what the Federal government can pass. A state can pass any law it wants to as long as that law doesn't violate the state or Federal constitution. But the Federal government can only pass laws in areas where the constitution gives it specific permission to do so. General criminal codes are not one such area (drug laws are passed under the "commerce clause" and some question their constitutionality for that reason, but that's way OT here). So any law Federal law that purported to make things like assault, rape, robbery, etc illegal everywhere can't mean that. There has to be some specific Federal interest (such as here, jurisdictions that aren't in any state or where the victim is a Federal employee or protectee).

That was a very serious, and stupid, in my opinion, mistake. I think he just blew immunity for the entire workforce.