halls120

Too bad. I liked the part of the opinion where they called TSA clerks the equivalent of a meat inspector.

petaluma1

I point that out at every opportunity I get.

catocony

At the same time we were all deemed walking sticks of meat, so the status quo is retained. TSA clerks are just prodding sides of beef all day, and we're the sides of beef.

saizai

1. What I talked about above is exclusively civil immunity against claims made by the victim. E.g. money damages, equitable relief, etc. that would compensate the victim.

2. I don't know criminal law very well. However:

* TSA are not immune from criminal charges (fines & imprisonment) for acts committed on the job.

Example: https://plus.google.com/+saizai/posts/29tKuV4AV85 (TSO successfully prosecuted for sexual assault committed under color of his job).

However, prosecution is very unlikely unless the Federal government allows it. Otherwise, the feds themselves won't prosecute, and state prosecution would face problems with federalism.

I won't say it's impossible, but I've never heard of a case where a state successfully brought state charges against a Federal agent that the feds said was acting properly.


* TSA agents are not immune from employment sanctions (e.g. firing), even if it's not criminal.

Actually, TSA (uniquely, TTBOMK, outside of military) have less protection against adverse employment actions than any other Federal employees (e.g. for anti-discrimination), due to a stupid reading of a footnote in the TSA Act. They still have MSPB protections, at least in part. (See e.g. MacLean v. DHS.)

This is especially true of TSO & LTSO; STSO+ have (unfairly) different standards.

Boggie Dog

If I understand what you are telling us it is possibly to file and have charges heard against a TSA screener if they exceed their authority and go outside of SOP but not for civil actions.

The question I have had and still have, how can a person know that the screener exceeded authority. I may believe the screener was out of line but I have nothing to prove that with and getting that information is apparently near impossible.

Is the situation different when the screeners are contract employees?

petaluma1

The example you present above clearly did not take place in the "line of duty" and was done under color of authority, so it is actionable and the screener was not immune from prosecution. It has nothing to do with inappropriate and aggressive screening at checkpoints.

saizai

The question was whether TSOs have criminal immunity if they have civil immunity. They do not.

I find it difficult to imagine that a prosecutor would ever press criminal charges against a government employee for doing what their agency ordered them to do.

You can't file criminal charges. Only prosecutors can do that. You can merely request it.

Violating SOP, per se, is not a crime. If it violates SOP and is also battery, that's another matter


​​You can't, short of suing and finding out whether the government gives a Westfall certification.

That, IMO, is itself a violation {by the agency, not the screener) of our due process &c rights.

I'm currently litigating that exact issue in Sai v. Pekoske, No. 15-2356 (1st Cir ). I don't know of anyone else who has ever tried to do so.

Yes, in very complicated ways, since they're a mixture of Federal (TSA), city/state (airport authority), & private (contractor).

cbn42

Yes, I was referring to civil matters. If you have been wronged by the government or its agent (for example, assaulted by a mailman) your only recourse is to file a claim with the agency. You can't take the matter to court unless the government has waived sovereign immunity. But none of this has anything to do with criminal charges, which are not determined by the victim. The mailman could still be prosecuted for a crime if the prosecutor decides to do so.

As saizai said, the odds of an employee being prosecuted for following orders are very low.

petaluma1

https://www.law360.com/delaware/arti...KwUT0PKulYgrNM

This is from the Pellegrino case in which an en banc hearing was held last week to consider immunity for TSA screeners.

I won't register to read the whole article so if anybody else has access, maybe you could read the article and tell us what happened at the hearing on Feburary 20th.

For those who might want to listen to arguments, the audio may be found here:

https://player.fm/series/oral-argume...administration

Boggie Dog

From the snippet posted it seems the court is more concerned with limiting government liability than protecting citizens rights. I would think protecting the rights of citizens would be job #1 for the courts but it appears I'm living in a different country these days.

I see no reason that TSA screeners should have the protections of immunity if a screener commits a crime while screening a passenger. Case in point; before conducting a Pat Down screeners deliver to the passenger a detailed description of how the pat down will be conducted. Yet they never say genital contact will be made. If the screener goes on to make genital contact without prior advisement I would consider that to be an assault and not part of the Pat Down. TSA has deflected all such claims thus far by settling complaints. I would like to see a case go before a jury.

Often1

This is a civil, not a criminal matter. If a TSA Officer commits a crime, he has no greater or lesser criminal liability than any other government employee. Nothing in this Third Circuit case changes that.

saizai

Just released.

This is a circuit split issue, almost certain to get a cert petition filed & granted.

Background: CA3 had previously ruled (in Arabic flashcards case) that TSA officers aren't liable under Bivens. In Pellegrino's case, the panel had ruled they weren't liable under FTCA either, which meant that there was no damages liability for TSA whatsoever if they violate someone's rights under the Constitution or common law.

The en banc court in Pellegrino has (mostly) reversed the panel decision, so there's at least FTCA liability. (That's against the United States itself, not the individual screeners.)

This decision: https://drive.google.com/open?id=1jK..._flxRL3CAMzlgK
Previous 2-1 panel decision: https://drive.google.com/open?id=1xa...3iYW-BaSyje6i9
Folder of everything in the case: https://drive.google.com/drive/u/0/f...Hl1TXpwdXR2SmM

Posted some more context on Twitter [thread]:

petaluma1

I read some of the decision and enjoyed the discussion about whether screeners are actually "officers"

This was also interesting:

as was this:

Here's a good explanation of the Court's decision:

https://papersplease.org/wp/2019/08/...or-misconduct/

saizai

I recommend the video, particularly the argument by the government's lawyer, particularly at around the 50 minute mark.

http://usc3rcpd.edgesuite.net/mm/flv...h264_2328K.mp4

petaluma1

From FFTUSA: