sbrower

New Court decision from the U.S. Court of Appeals for the 3rd Circuit. TSA agent lies to police about traveler threatening to have bomb. Traveler gets arrested and prosecuted, case dismissed when airport tapes show traveler was telling the truth. Court rules that agent can't be sued for lying because TSA is so necessary to high risk national security involved in air travel.

P.S. I am a real lawyer and I know that I am probably messing up some details because I am working from a news story instead of reading the opinion. Please correct details.

Boggie Dog

If this is true then something is wrong with the justice system.

84fiero

I'm not a lawyer, real or otherwise, although I always liked Matlock. Here's a link to the opinion

http://www2.ca3.uscourts.gov/opinarch/163422p.pdf

GUWonder

The greatest threat to freedom to travel and be secure in our persons and liberties during travel and otherwise is the default inclination of so many to not stand up strongly for freedom to travel and otherwise secure our entire range of liberties each and every time "security"/"national security" is the excuse of the day when "cracking down" to supposedly make things "safer" for the public.

That the public servants and the public at large defer to "the experts" (by whatever name they go) is the issue. The justice system is a reflection of this public and the public's regime elements which it serves. I'm not surprised by the courts being stacked, and thereby inclined, to defer to the Executive Branch and to the Corporate World.

FliesWay2Much

I read the decision on the train this morning. I remember this harassment: this was the guy flying to Miami to run a half-marathon. He had a PVC pipe tube filled with Power Bars or something similar. The TSA clerk thought the tube was a pipe bomb and the fun began.

It looks like the clerk is still on the hook for a 4th Amendment violation, although I'm not smart enough to know what the 1st Amendment claim was all about, unless it had to do with retailation for filing a complaint.

I found two scary aspects about the ruling:

1. The judges placed a disproportionate amount of responsibility upon TSA clerks for preserving national security. Over the years, the judiciary and other two branches of government has bought the notion hook, line and sinker that the TSA is God's gift to national survival. I don't know how we get out of this mess.

2. In contrast to #1 , the court wrote that, since TSA clerks were not LEOs, they couldn't possibly understand even the basic theories of reasonable suspicion and probable cause. It looks like this court just codified "screener discretion" as the permanent get-out-of-jail-free card for all TSA clerks in the future.

If the FT lawyers came to different conclusions, I'm happy to be calibrated.

BSBD

IANAL, but I've studied law. My reading indicates that the USG's position on TSA personnel is that they are not officers, despite the TSO title, which means they cannot be held to the same (theoretically) strict standards as LEOs when it comes to civil rights violations. IOW, the court agreed with the USG's view that TSA clerks can violate your 1st Amendment rights with impunity, and are immune from prosecution for that. The court carefully avoided dealing with the 4th Amendment, which is sadly unsurprising.

petaluma1

1. That's exactly what the 1st Amendment claim was about.

2. W/R/T 4th Amendment claim, you'll recall that this matter is still proceeding, Linlor vs. Poulson. The judge told the TSA they could not claim "national security" as a means to having the case dismissed.

Boggie Dog

INAL and perhaps I don't understand the finer points of the courts decision but I don't see that employee status (officer/not officer) should matter when a government employee violates a persons constitutional protections. Why have them if they have no meaning? Aren't those protections there to protect citizens from government?

It certainly appears that the TSA employee in this case filed a false police report resulting in prosecution. That alone should result in some form of discipline by the court and the employer. On top of that the TSA employee has demonstrated by action that integrity is not his strong suite so how can this person be trusted going forward?

I wonder how many readers that hire or manage employees would consider continued employment of this person to be in the best interest of the company? I would not!

Section 107

and here are a few of the relevant parts of the decision:
-----------
[page 16] Today we hold that Bivens does not afford a remedy against airport security screeners who allegedly retaliate against a traveler who exercises First Amendment rights.

and:

[page 38] We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior. Discipline by the government should be swift and certain, when its employees’ actions warrant it. But, when it comes to creating judicial remedies, there must be a balancing of priorities, and
“[t]he proper balance is one for the Congress, not the Judiciary, to undertake.” Ziglar, 137 S. Ct. at 1863. Otherwise, in this context, there is reason to “fear that a general Bivens cure would be worse than the disease.”
Wilkie, 551. U.S. at 561. Accordingly, in the specific context of airport security screeners, special factors preclude us from implying a Bivens cause of action for First Amendment retaliation.

-------------
And that kind of twisted and pained judicial reasoning resulting in a free pass for the gubmint is what I was arguing would occur if someone brought an action for a search conducted in an area of an airport away from the security screening checkpoint in another thread. Unless it is an egregious action or omission that utterly shocks the conscious, the courts bend over backwards to protect the gubmint's ability to abuse our rights.....

Boggie Dog

I think a TSA employee filing a false police report should utterly shock the conscious of the public.

Courts should bend over backwards to protect the rights of individuals, not government interests.

This country has certainly lost its way.

saizai

IANAL, but https://s.ai/work/legal_resume.pdf

Here are my notes on it:

Vanderklok v TSA, No. 16-3422 (3d Cir. Aug. 22, 2017)
http://www2.ca3.uscourts.gov/opinarch/163422p.pdf

tl;dr: Bivens not extended to 1st Am retaliatory prosecution. Decision vacated w/ instructions to dismiss for this claim.

4th Am., QI, & FTCA 2680(h) claims not reached on procedural grounds, will still be open on final appeal if decision in Pellegrino doesn't address them.


background:

Vanderklok had food and a watch in a PVC pipe, and went through TSA. They thought it looked like a pipe bomb, so selected him. Things escalated.

Kieser, the main TSA screener claimed that he made threats. Vanderklok claimed that nothing of the sort happened and Kieser flat out lied to police to get him arrested.

Vanderklok was criminally prosecuted and acquitted of all charges.

FTCA / Bivens suit followed for retaliatory/malicious prosecution, etc. etc.


district court history:

Dismissed police & city on reasonable reliance / probable cause grounds.

Granted US' motion to Westfall-substitute and dismiss FTCA claims on sovereign immunity grounds. Held that TSA do not fall within 2680(h) exemption because TSA are not "officers of the US", but merely "federal employees" 142 F. Supp. 3d at 361.

FRCP 54(b) cert re 2680(h) denied.

(Those are not on appeal here, but are relevant.)

Denied MSJ for Kieser on 1st Am. on QI grounds & 4th Am. on merits w/out ruling on QI. This appeal is collateral from that last MSJ.


held:

1. Kieser's 4th Am. appeal doesn't qualify as collateral because it was on merits, not on QI. Therefore no holding on that part.


2. Bivens alternative remedy - no

a) Retaliatory prosecution is intentional tort for FTCA purposes.

TSA screeners acting egregiously might not qualify for Westfall substitution, so may be individually liable.

However, in Vanderklok's case, he has no alternative FTCA remedy because the district court ruled against him on it an it's not on appeal.

b) TSA's TRIP procedure is a partial administrative alternative, but does not provide meaningful remedy for Vanderklok.

c) Therefore, no Bivens alternative.


3. Bivens extension special factors - yes (dispositive)

a) National security context present

b) 49 USC 46110 & 49 USC 44935 note (re TSA employment decisions being unreviewable) imply Congress wanted to insulate TSA from court review

c) Screeners are not police, therefore not trained on probable cause factors, therefore it's OK for them to be incompetent on them even to the point of malicious/retaliatory prosecution

d) Remedy sought is damages, not declaratory/injunctive, so Bivens extension standard is heightened

e) Therefore, no Bivens remedy for 1st Am. retaliatory prosecution in this context. QI question not reached.


contrast (finding no special factors)
Linlor v Polson, No. 1:17-cv-13 (E.D. Va. July 11, 2017) § III.A.3
https://scholar.google.com/scholar_c...36587177848718



notes:

1. Re FTCA, Pellegrino v TSA, No. 15-3047 (3d Cir.), squarely presents that issue, and 3d Cir appointed amicus to brief it, so presumably they see it as a better vehicle. It is slated for oral argument early September.

2. Re 49 USC 44935, TSA's union *hates* that note, because it means they don't get protections of MSPB process, disability discrimination, normal federal salary / benefits schedules, etc etc. We may have common cause with them on this. However, I don't know how it's to be taken up except through Congress.



Also re FTCA, there's a split on whether TSOs are "investigatory … officers" as defined by 28 USC 2680(h).


Courts saying yes:

George v. Rehiel , No. 10-586 (E.D. Pa. Oct. 28, 2011), rev'd in part on Bivens qualified immunity, 738 F. 3d 562 (3d Cir. 2013)
Armato v. Jane Doe 1 , No. 2:11-cv-02462 (D. Ariz. May 15, 2012)
* Pellegrino v. TSA, No. 09-cv-5505, 855 F. Supp. 2d 343, 356 (E.D. Pa. 2012) (as amended)

Courts saying no:

Welch v. Huntleigh USA Corp., No. 04-663 (D. Or. Aug. 4, 2005)
Coulter v DHS, No. 07-4894 (D. N.J. Sept. 24, 2008)
Corbett v. TSA, 968 F. Supp. 2d 1171, 1183-85 (S.D. Fla. Nov. 16 , 2012)
Weinraub v. United States, 927 F. Supp. 2d 258, 262-63 (E.D. N.C. 2012)
Walcott v United States et al., No. 13-CV-3303 (E.D. N.Y. Oct. 18, 2013)
Hernandez v. United States, 34 F. Supp. 3d 1168, 1176 (D. Colo. 2014)
Koe v. United States, No. C13-1708-JCC (W.D. Wa. July 29, 2014)
* Pellegrino v. TSA, No. 09-cv-5505 (E.D. Pa. April 16, 2014) (but see 2012, supra)
Vanderklok v. United States, 142 F. Supp. 3d 356, 359–63 (E.D. Pa. Oct. 6, 2015)

*Appeal pending:

Pellegrino v TSA, No. 15-3047 (3d Cir.)

Often1

Nothing odd in the opinion, although people have already made this about hiring/firing decisions and whether courts ought to "bend" the law to do things that Congress did not write into the law.

For what it is worth, that latter suggestion is a threat to Democracy moreso than whether some guy had a bad experience with an Officer at a checkpoint. If the courts "rewrite" this law, there are kinds of other civil rights protections which courts could rewrite to the disadvantage of civil liberties.

The plaintiff has not lost his case, just the claim he filed for what he said was a violation that turns out not to exist in federal law, and back the thing goes to the federal trial court for the claim which matters.

Boggie Dog

I don't believe anyone has suggested that the courts bend the law. The problem is that the law seems not to protect the falsely accused and protects the government actor that made a false accusation.

As far as the claim of making this about hiring/firing decisions I have to wonder who is OK with a person who makes false claims to police that results in having an innocent person prosecuted. I certainly wouldn't want that kind of person working for or with me. I don't think the government should want that person either.

The larger issue as I see it is that the law has been twisted to protect the government, not citizens.

Often1

What law are you pointing to as being "twisted"?

The entire point of the opinion is that Congress has not enacted a law which does what the passenger wants, so he loses (on that specific count).

So I suppose that it's not OK to "bend" but it is OK to "twist"?

GUWonder

The US legal system is not a civil law system.