TSA Changes Rules on Medical Cannabis (Quietly)
Jun 1, 2019, 12:06 pm
#31
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That never really made sense to me. If you are a federal worker who knows the law being broken is a federal law, why are the local authorities summoned? They have no jurisdiction and less knowledge of federal laws than federal LEs. Unless local muscle is needed to physically secure the accused pax until the federal authorities arrive, I can't see why they would or should be involved.
Of course the other gray area is most, if not all, states that passed more permissive marijuana laws also made it illegal to transport marijuana out of the state. Don’t know for sure but I’m guessing they didn’t want to run afoul of the Federal laws that prohibit interstate transportation of controlled substances. So is TSA also aware of and alerting local law enforcement of state law violations?
Jun 1, 2019, 12:30 pm
#32
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Unfortunately it is not true that state and local law enforcement does not enforce Federal law. In fact many Federal laws require the state and local authorities to enforce Federal laws. See this paper for a discussion of that: https://scholarship.law.duke.edu/cgi...ty_scholarship
Of course the other gray area is most, if not all, states that passed more permissive marijuana laws also made it illegal to transport marijuana out of the state. Don’t know for sure but I’m guessing they didn’t want to run afoul of the Federal laws that prohibit interstate transportation of controlled substances. So is TSA also aware of and alerting local law enforcement of state law violations?
I think the real issue there was that his political grandstanding was a waste of resources much better applied elsewhere.
Jun 1, 2019, 3:12 pm
#33
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I fail to see the same "fixation" as you apparently see. What I see is a failure of anyone from TSA being able to point to the federal law that requires TSA screeners to report suspected drugs.
https://www.forbes.com/sites/suzanne.../#1910a99831e6
https://www.forbes.com/sites/suzanne.../#1910a99831e6
That never really made sense to me. If you are a federal worker who knows the law being broken is a federal law, why are the local authorities summoned? They have no jurisdiction and less knowledge of federal laws than federal LEs. Unless local muscle is needed to physically secure the accused pax until the federal authorities arrive, I can't see why they would or should be involved.
Back in the early days (1980s) I was told, as an Air Force officer, to look for dilated pupils (no joke!) in the enlisted troops as a sign of drug use. Also, anyone who missed a lot of Mondays by being sick "probably" had a substance abuse problem.
Jun 1, 2019, 3:12 pm
#34
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I think it would be interesting to know how many times TSOs summoned LEs for pax with medical marijuana flying entirely within the state where it is legal. IIRC, there was a sheriff in Oakland (?) who refused to stand down on the issue. Seems to me someone (county?) had to pass a law specifically targeting his office and addressing his refusal to follow local law over federal law.
I think the real issue there was that his political grandstanding was a waste of resources much better applied elsewhere.
I think the real issue there was that his political grandstanding was a waste of resources much better applied elsewhere.
Jun 2, 2019, 6:52 am
#35
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I’d imagine the actual occurrence is quite low. Certainly TSA does not pull every carry on bag for inspection and then how many of those bags have a stash? Probably a pretty low number statistically.
Jun 2, 2019, 7:31 am
#36
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In my 42 years in the federal government, I have NEVER received a briefing or read a directive that REQUIRED me to reports illegal substances or anything else. Remember that the TSA also applied this "federal law" to large amounts of cash and asserted that EVERY federal employee had the same reporting requirements as clerks.
Back in the early days (1980s) I was told, as an Air Force officer, to look for dilated pupils (no joke!) in the enlisted troops as a sign of drug use. Also, anyone who missed a lot of Mondays by being sick "probably" had a substance abuse problem.
Back in the early days (1980s) I was told, as an Air Force officer, to look for dilated pupils (no joke!) in the enlisted troops as a sign of drug use. Also, anyone who missed a lot of Mondays by being sick "probably" had a substance abuse problem.
Jun 2, 2019, 10:10 am
#37
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https://www.tsa.gov/news/releases/20...ing-procedures This TSA blurb mentions the Controlled Substances Act (Title 21 United States Code) as the source of their requirement to report discovered controlled substances to local authorities. I don’t have the energy or time to read through the several hundred pages of Title 21 to see what authorities are set out.
As an aside, the list of "controlled substances" is so long that I am certain that illegal drugs are carried onto flights every single day and TSA is not aware of it.
Jun 2, 2019, 11:40 am
#38
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I'm speaking more to the manpower impact on an individual checkpoint. I suspect that stashes are first identified as an unknown organic by the x-ray operator, then resolved by a hand search. At that point the screener is suppose to call for a supervisor who decides to involve police. As seen in numerous videos screeners tend to mass around any checkpoint incident which further reduces focus on the real task of finding WEI. I believe That TSA is actively looking for non-WEI items, seeing as how TSA sees itself as a quasi Law Enforcement agency, which reduces the effectiveness of TSA's true mission.
Jun 2, 2019, 1:38 pm
#39
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- Thanks for posting this, OP. It'll make for yet another nice exhibit in my 1st Cir. case to show how TSA blatantly violates the APA.
- Here are the pre & post versions:
https://web.archive.org/web/20190511075729/https://www.tsa.gov/travel/security-screening/whatcanibring/items/medical-marijuana
https://web.archive.org/web/20190526160254/https://www.tsa.gov/travel/security-screening/whatcanibring/items/medical-marijuana - Commenter contrasting CFR with regulations doesn't seem to know what the R stands for.
- It's currently illegal for the federal government to prosecute someone for pot if they comply with state law. Rohrbacher-Farr amendment. (Though that applies only to DoJ, it's hard to see how calling cops on someone who might be complying with state law would further the security of aviation.)
- TSA has no lawful authority to detain anyone, or their stuff, while waiting for cops. Nor do local cops have authority to enforce most federal laws. TSA does have its own federal cops (TSIs & FAMs) but I've never heard of one being summoned to a checkpoint, nor of them being trained in drug interdiction. The en banc oral argument in Pellegrino (3rd Cir.) is fairly interesting on this point.
Jun 2, 2019, 2:44 pm
#40
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- Thanks for posting this, OP. It'll make for yet another nice exhibit in my 1st Cir. case to show how TSA blatantly violates the APA.
- Here are the pre & post versions:
https://web.archive.org/web/20190511...ical-marijuana
https://web.archive.org/web/20190526...ical-marijuana - Commenter contrasting CFR with regulations doesn't seem to know what the R stands for.
- It's currently illegal for the federal government to prosecute someone for pot if they comply with state law. Rohrbacher-Farr amendment. (Though that applies only to DoJ, it's hard to see how calling cops on someone who might be complying with state law would further the security of aviation.)
- TSA has no lawful authority to detain anyone, or their stuff, while waiting for cops. Nor do local cops have authority to enforce most federal laws. TSA does have its own federal cops (TSIs & FAMs) but I've never heard of one being summoned to a checkpoint, nor of them being trained in drug interdiction. The en banc oral argument in Pellegrino (3rd Cir.) is fairly interesting on this point.
Be sure to read comment #10 in this thread.
Jun 4, 2019, 7:39 am
#41
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Here are the pre & post versions:
https://web.archive.org/web/20190511...ical-marijuana
https://web.archive.org/web/20190526...ical-marijuana
https://web.archive.org/web/20190511...ical-marijuana
https://web.archive.org/web/20190526...ical-marijuana
- May 9, 2017 through July 2, 2017
Carry On Bags: No
Checked Bags: No
TSA security officers do not search for marijuana or other drugs. In the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer.
Whether or not marijuana is considered legal under local law is not relevant to TSA screening because TSA is governed by federal law. Federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.
Checked Bags: No
TSA security officers do not search for marijuana or other drugs. In the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer.
Whether or not marijuana is considered legal under local law is not relevant to TSA screening because TSA is governed by federal law. Federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.
- May 27, 2018 through May 11, 2019
Carry On Bags: No
Checked Bags: No
Possession of marijuana and cannabis infused products, such as Cannabidiol (CBD) oil, is illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana and cannabis infused products. TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but in the event a substance that appears to be marijuana or a cannabis infused product is observed during security screening, TSA will refer the matter to a law enforcement officer.
Checked Bags: No
Possession of marijuana and cannabis infused products, such as Cannabidiol (CBD) oil, is illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana and cannabis infused products. TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but in the event a substance that appears to be marijuana or a cannabis infused product is observed during security screening, TSA will refer the matter to a law enforcement officer.
- May 26, 2019 through present
Carry On Bags: Yes (Special Instructions)
Checked Bags: Yes (Special Instructions)
Possession of marijuana and certain cannabis infused products, including some Cannabidiol (CBD) oil, remain illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana and certain cannabis infused products.
Products/medications that contain hemp-derived CBD or are approved by the FDA are legal as long as it is produced within the regulations defined by the law under the Agriculture Improvement Act 2018.
TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but if any illegal substance is discovered during security screening, TSA will refer the matter to a law enforcement officer.
Checked Bags: Yes (Special Instructions)
Possession of marijuana and certain cannabis infused products, including some Cannabidiol (CBD) oil, remain illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana and certain cannabis infused products.
Products/medications that contain hemp-derived CBD or are approved by the FDA are legal as long as it is produced within the regulations defined by the law under the Agriculture Improvement Act 2018.
TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but if any illegal substance is discovered during security screening, TSA will refer the matter to a law enforcement officer.
FDA's action in clearing a CBD product has no relevance whatsoever. TSA is not trained to identify FDA-approved products, nor does it have any bearing on the "security of transportation", nor are "non-FDA-approved products" even on TSA's last officially published prohibited items list.
And note that it's illegal for TSA to detain anyone, or anything, for any period of time, for any reason not strictly related to security screening. If they "wait for police to arrive" before finishing a screening, e.g., they're violating clearly established law (Terry v. Ohio & US v. Davis).
Jun 4, 2019, 8:21 am
#42
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Actually, there are 3 in total that I found through archive.org:
None of the above were properly promulgated by TSA, nor even published by them in the Federal Register.
FDA's action in clearing a CBD product has no relevance whatsoever. TSA is not trained to identify FDA-approved products, nor does it have any bearing on the "security of transportation", nor are "non-FDA-approved products" even on TSA's last officially published prohibited items list.
And note that it's illegal for TSA to detain anyone, or anything, for any period of time, for any reason not strictly related to security screening. If they "wait for police to arrive" before finishing a screening, e.g., they're violating clearly established law (Terry v. Ohio & US v. Davis).
- May 9, 2017 through July 2, 2017
- May 27, 2018 through May 11, 2019
- May 26, 2019 through present
None of the above were properly promulgated by TSA, nor even published by them in the Federal Register.
FDA's action in clearing a CBD product has no relevance whatsoever. TSA is not trained to identify FDA-approved products, nor does it have any bearing on the "security of transportation", nor are "non-FDA-approved products" even on TSA's last officially published prohibited items list.
And note that it's illegal for TSA to detain anyone, or anything, for any period of time, for any reason not strictly related to security screening. If they "wait for police to arrive" before finishing a screening, e.g., they're violating clearly established law (Terry v. Ohio & US v. Davis).
Jun 4, 2019, 11:53 am
#43
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Actually, there are 3 in total that I found through archive.org:
None of the above were properly promulgated by TSA, nor even published by them in the Federal Register.
FDA's action in clearing a CBD product has no relevance whatsoever. TSA is not trained to identify FDA-approved products, nor does it have any bearing on the "security of transportation", nor are "non-FDA-approved products" even on TSA's last officially published prohibited items list.
And note that it's illegal for TSA to detain anyone, or anything, for any period of time, for any reason not strictly related to security screening. If they "wait for police to arrive" before finishing a screening, e.g., they're violating clearly established law (Terry v. Ohio & US v. Davis).
- May 9, 2017 through July 2, 2017
- May 27, 2018 through May 11, 2019
- May 26, 2019 through present
None of the above were properly promulgated by TSA, nor even published by them in the Federal Register.
FDA's action in clearing a CBD product has no relevance whatsoever. TSA is not trained to identify FDA-approved products, nor does it have any bearing on the "security of transportation", nor are "non-FDA-approved products" even on TSA's last officially published prohibited items list.
And note that it's illegal for TSA to detain anyone, or anything, for any period of time, for any reason not strictly related to security screening. If they "wait for police to arrive" before finishing a screening, e.g., they're violating clearly established law (Terry v. Ohio & US v. Davis).
I think some of these changes are indicative that TSA is in fact actively screening for drugs and we can ignore the "we don't look for drugs" as a false statement.
Jun 4, 2019, 2:29 pm
#44
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Understand that TSA has no authority to detain an individual or confiscate suspect items in situations not involving security. I guess the salient question is barring that authority I guess TSA can deny access to the secure airside if the passenger chooses not to wait or cooperate?
They are allowed to deny access because someone doesn't cooperate with the security screening. They are allowed to call the cops, but only in the same sense as anyone is allowed to call the cops. They can't (legally) hold things up on that.
I strongly recommend listening to the Pellegrino en banc oral argument: video, audio. (See also panel argument audio.)
You may enjoy hearing the judges outright laugh in the face of TSA's lawyer for suggesting that TSA doesn't detain people.
I think some of these changes are indicative that TSA is in fact actively screening for drugs and we can ignore the "we don't look for drugs" as a false statement.
Last edited by saizai; Jun 4, 2019 at 2:38 pm
Jun 4, 2019, 8:38 pm
#45
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If they are denying access in order to wait for police, then that's an unlawful detention. (It's illegal - a civil violation punishable by fine, not a crime punishable by jail - to leave TSA screening before they finish. So per Terry and the usual administrative search law like DUI checkpoints, they're only allowed to keep you for as long as it takes to do the thing they're there for, and not a minute more.)
They are allowed to deny access because someone doesn't cooperate with the security screening. They are allowed to call the cops, but only in the same sense as anyone is allowed to call the cops. They can't (legally) hold things up on that.
I strongly recommend listening to the Pellegrino en banc oral argument: video, audio. (See also panel argument audio.)
You may enjoy hearing the judges outright laugh in the face of TSA's lawyer for suggesting that TSA doesn't detain people.
Yes: APA notice and comment. See EPIC v DHS, 635 F. 3d 1 (D.C. Cir. 2011).
It's a somewhat more subtle question. I believe that they are told not to search for drugs. However, if they see something that they think might be drugs, I think they do in fact do a follow-up search for that, which violates Terry. And I know that their internal magazine repeatedly praises TSOs for drug, immigration, and miscellaneous criminal (e.g. outstanding warrant) "catches". And I know that their study of SPOT / "behavior detection" uses those kinds of outcomes as proof of effectiveness.
They are allowed to deny access because someone doesn't cooperate with the security screening. They are allowed to call the cops, but only in the same sense as anyone is allowed to call the cops. They can't (legally) hold things up on that.
I strongly recommend listening to the Pellegrino en banc oral argument: video, audio. (See also panel argument audio.)
You may enjoy hearing the judges outright laugh in the face of TSA's lawyer for suggesting that TSA doesn't detain people.
Yes: APA notice and comment. See EPIC v DHS, 635 F. 3d 1 (D.C. Cir. 2011).
It's a somewhat more subtle question. I believe that they are told not to search for drugs. However, if they see something that they think might be drugs, I think they do in fact do a follow-up search for that, which violates Terry. And I know that their internal magazine repeatedly praises TSOs for drug, immigration, and miscellaneous criminal (e.g. outstanding warrant) "catches". And I know that their study of SPOT / "behavior detection" uses those kinds of outcomes as proof of effectiveness.