Famous Screening Refusal Stories
 

Without a whole lot of effort, I found this post from 2011 in which three refusal stories are captured: two from FTers and one from a blogger. All three had to do with customs areas that were airside. You had to be re-groped just to leave the airport. In one case, the person was told to go through the Cancer Boxes.

Everyone of them made use of the consensual administrative search practices. (None are actual laws, just a lot of lawsuits that defined how cops and the government in general are supposed to behave.) In each case, they chose to take advantage of the policy that you can either submit to whatever the TSA wants to do to you or be escorted out of the secure area. On the surface this simple concept was downright baffling to the TSA. I'm sure a lot of the time delays were simple harassment.

All were eventually escorted out of the secure area by real cops with the requisite "swarming" TSA employees. There were arrest threats but no threats of a fine, although one swarm was considering whether or not the FTer was interfering with the screening process. The FTer noted that it was after 11pm and he was the only one left in customs, so there was no screening going on to interfere with.

So, I'd argue that there is plenty of precedence for others of us doing likewise either for reverse screening or if there are any U.S. ports of entry that still dump everyone airside after customs.

Alas, I wonder how many of us would actually do this for fear of losing ExtortionCheck and GE?

spot on post and thanks for recalling that thread - it has a few highly informative posts in it about why the seemingly ridiculous post-arrival screenings are required.

Your post does not permit regular quoting, so I will respond within these strictures.

You state that, “Certain other TSA employees, however, do have authority to conduct searches with or without reasonable suspicion.” Who specifically are these “certain other TSA employees”? Are you asserting that they have the authority without even reasonable suspicion to search any passenger inside the sterile area (and not boarding an aircraft) or outside the sterile area? Do you have a link to their authority to do such?

I realize that you are not a lawyer, so I can understand why you might make your statement about 49 USC 44901d(4)(C). But that law doesn’t stand for the proposition that you are asserting. Can you note any instances in which this provision has been implemented with respect to a country?

On the one hand, you state that, “SOPs are not law/regulation.” Then you immediately turn around with, “Respectfully, and please correct me if I am mistaken, but if you are basing your statements about TSA's SOPs because you have personally read them then I suspect you have not seen ALL of TSA's SOPs and not the ones that apply to areas other than a screening checkpoint.” Under your first statement, as “SOPs are not law/regulation”, they should have no applicability to additional abrogation of passengers’ constitutional rights. Under your second statement, you appear to be alleging certain additional negating of rights. I was just giving one example of an SOP that supports what I have been saying all along. Do you have examples of SOPs that support your position? (because, in actuality, there are none.)

You unequivocally state that, “By law/regulation, TSA is authorized to inspect/test (i.e., search) any place covered by the security program any time it desires. This includes persons in those areas.” No a priori reason emanates to reach your conclusion. You can’t accomplish something indirectly if you are not authorized to do it directly. So if there is no direct authority to conduct a warrantless search, indirect authority is not available either. Passengers must have proper notice if their constitutional rights are being restricted.

You go on to state that, “Again, in a sterile, secure, SIDA or AOA area, TSA as an agency (but not a TSO) has authority to inspect at any place and any time it desires although TSA chooses to use reasonable suspicion at areas other than screening checkpoints or access areas.” So if “TSA as an agency” “has the authority to inspect”, “but not a TSO”, who effects the inspection? And while Section 1542 may authorize certain inspections, its dragnet does not reach passengers – that is within the specific purview of Section 1540.

Let’s not forget that reasonable suspicion only provides an LEO the right to briefly detain a suspect for investigatory purposes and frisk the outside of their clothing for weapons, but not for contraband such as drugs; it is not a full-blown search. Reasonable suspicion requires specific and articulable facts that taken together with rational inferences from those facts would lead a reasonable person to believe that a suspect has, is or will commit a crime.

What is “disingenuous” is to assert that the TSA can usurp a passenger’s constitutional right to be free of warrantless searches by issuing a regulation that is directed not at passengers but at a third party. As the above-noted law review article stated, “The section of the TSA regulations entitled “Responsibilities of Passengers and Other Individuals and Persons,” contains the TSA’s rules regarding what air travelers must do to comply with TSA regulations.” (49 C.F.R. §§1540.101–.117.) Full stop.

§1540.107(a) could have been drafted (or subsequently amended) to include all of the sterile area. The TSA has not done so even though it has many years to do just that. The TSA views its administrative search authority of passengers as being limited to the screening checkpoint and when boarding an aircraft. What examples do you have that this is not the case?

Every anecdote has comported with this reading of the law. On deplaning from that SFO-JFK flight, “To assist ICE, CBP requested consensual assistance from passengers aboard the flight to determine whether the removable individual in question was in fact aboard the flight. In the course of seeking this assistance, CBP did not compel any of these domestic passengers to show identification.” Another example of no basis for a search other than consent. And this was less intrusive than a physical search of one’s person and property.

Once again, the bottom line, is that a higher standard is required to conduct a search in the sterile area of a non-covered person compared to the administrative search standard of a person proceeding through the screening checkpoint or boarding an aircraft. That is the law.

Did you perhaps note who were some that provided the "highly informative posts" you are referring to in 2011? ;)

There are a variety of employees who may conduct warrantless, suspicionless inspections and searches; one example is a TSI. Links to these authorities have already been provided.

Several times you have used this phrase, "...any passenger inside the sterile area (and not boarding an aircraft) or outside the sterile area" and also "covered persons" implying the law and regulations distinguishes these categories of persons. Please explain why you keep referencing them and where in the legislation or regulations you are finding these distinctions.

Yes, there have been multiple occasions on which arriving international passengers have had to be cleared upon arrival before being allowed into the rest of the sterile areas. No, I am not at liberty to specify those occasions.

You might not like or agree with my unequivocal statements, but they are accurate regarding the current state of the affairs.

Please explain your interpretation of the meaning and intent of 49 USC 44901d(4)(C). The meaning and intent seems clear to me and my understanding comports with the legislative record and the opinions of the applicable agencies having jurisdiction.

You said certain SOPs do not exist; I disagree. I have specific reason to believe that TSA has SOPs that cover areas of the airport other than the screening checkpoints. Unfortunately, I am not at liberty to share any SOPs. SOPs are, of course, SSI. But I can assure you TSA most definitely has SOPs for each and every area of the airport under the security program as well as areas not under the security program.

A priori: As the law and regulation I linked to states, TSA has the authority to inspect and search any place in the airport at any time within the context of the security program. If you believe the authority of TSA to inspect and search cannot be directly (let alone indirectly) deduced from those very clear statements, well, then we are at a stalemate on this issue.

See answer above for one example. You may continue to believe 1540 is the only passage that applies to passengers (but more accurately, anyone in the sterile area) but it is not the only passage that applies to persons in the sterile areas and other areas of the airport. My response regarding 1542 and other sections stand.

No disagreement at all about the requirements for reasonable suspicion for LEO to conduct in terms of criminal conduct. But, let us not also forget that administrative searches do not require the same grounds for the search.

Again, 1540 is not the only passage that applies to persons in, or requesting
to enter, the sterile area.

Please share any examples of TSA saying its authorities to conduct inspections and searches are limited to only to passengers only at screening checkpoints and only the when boarding an aircraft.

Yes, the questioning by CBP after the SFO-JFK was consensual. CBP is not TSA.

The law is neither as settled nor as tested in regards to TSA as one might like to believe.

Yes I did. :)

Is a TSI considered a LEO? If so doesn't that change the nature of any TSA search from Administrative to some other category?

This is the job of a TSI:


Identify potential security threats
Respond to security violations
Conduct civil investigations
Collect and enter data and evidence relevant to investigations and inspections
Make recommendations to approve or enhance current security protocols
Monitor and ensure compliance with all safety regulations, policies, and security measures
Inspect and operate security equipment
Ensure safe transport of hazardous materials

TSIs appear to deal with "things" rather than people and therefore, they are not LEOs. Same job "qualifications" as screeners.

You left out the most important duty of a TSI: Damaging aircraft by climbing on them in a hanger and breaking pitot tubes.

Oops! So I did and shame on me. :D

I think the airplanes were parked on the ramp. But yes, a TSA TSI not only endangered a large number of people but caused thousands of dollars of damage to those airplanes simply because they were not qualified to be doing what they were doing. A key example of poor supervision of TSA employees.

What is sad is that I believe that some with the TSA TSI designation are in fact LEO's.

Memory lane...

And, remember that the TSA was going to fine the carrier for not securing their aircraft?

A clear case of trying to shift blame and focus to cover up TSA violations.

We have previously discussed the LEO status of TSIs in the thread re: K9 explosives detection (TSA's K9 handlers are TSIs while most ED handlers are airport, local or mass transit cops).

In a poor effort to keep the response short: your questions are mixing apples and tomatoes or put another way and to paraphrase the vaunted President Clinton, it kinda depends upon what your definition of "is" is. :)

Your apple question ("Whether a TSI is considered a LEO?"): it depends on for what purpose the definition is being applied.

For example, TSIs are (generally*) not eligible for Federal LEO Retirement benefits under 5 CFR Part 831.

However, TSIs are classified in the 1800 family of OPMs job classification system and the 1801 series in particular. That series is specifically for positions whose duties are to investigate and enforce compliance with federal law and regulation (albeit in this case civil and not criminal law although there might be some cases that involve criminal law in addition to the civil law). That makes them law enforcement officers (agents of the federal government whose primary duties are to investigate and enforce compliance with federal law).

But, let us agree that a “LEO” in the conventionally/commonly understood meaning of the term refers to agents of the government authorized to investigate or enforce criminal law and make arrests with or without a warrants and that almost all TSIs are not authorized to arrest nor investigate or enforce criminal laws and are therefore not LEOs.

Your tomato question (“if so, does that [a TSI being a LEO] change the nature of any TSA search?”): In a word, no, because a search in the security program areas conducted by a TSI to ensure compliance with the security program falls under the administrative search doctrine. Also, LEOs conduct administrative searches all the time (one example is a DWI “safety” checkpoint, and there are many other examples). What makes a search fall under the “administrative search doctrine” is not based primarily on who conducts the search (outside of being an agent for the government).


At the same time, a TSI is not authorized to conduct a search based not upon ensuring compliance with the security program but instead based upon a reasonable suspicion of a crime having been committed, being committed, or about to be committed. A TSI wanting to conduct a search on reasonable suspicion grounds must still have a LEO with arrest powers there to actually conduct the search.



*As with all things regarding to the federal government (blame your congresscritters), exceptions abound and have been made and the law regarding who is eligible for LEO retirement is quite complex (such as depending on when and to what duty an employee was assigned OR primary duties OR secondary positions, etc.). A few TSIs do qualify for LEO retirement.