Opt out of pat down - thought experiment
 

In honor of national opt out day, I am more than willing to buy an airline ticket and opt out of an X-ray scan, but I don't really want to get groped. So what would happen if I also refused a pat down?

I guess in a nutshell, my question is, if someone wanted to make a 4th Amendment test case, what would be the script?

Please no smurf and thug comments! I know there are good and bad people in the TSA, but I'm really interested in the Constitutional/legal aspects. I know there is a chance of some TSO or cop being an a$$hole. But assuming that everyone is polite and professional, and follows official (even if secret) TSA procedures, what is the most likely script for what would happen?

• Would I have committed any crimes?
• At what point is TSA allowed to detain me?
• Can they take legal action against me or physically restrain me?
• Can I ask for a lawyer?
• What types of ID can they require me to provide?

If this has been discussed on another website or thread, I would appreciate a link. I would LOVE it if some of our resident TSA employees could shed some light on the subject.

Once again, I am looking for thoughtful discussion of creating a test case: legal issues and Constitutional rights, not a TSA-bashing thread.

You will be escorted out of the checkpoint, and they will probably take down your information...

You would be esorted back outside the checkpoint, probably by an LEO.

No, not doing just what you said.

The TSA is never allowed to detain you. An LEO can detain you if he has sufficient cause to believe that a crime may have been committed or is about to be committed.

See above.

You can ask for anything you want! But there's no obligation to provide a lawyer for you unless you're actually arrested, which is unlikely.

The courts have held that it's legal for an LEO to ask you to "identify yourself", but that doesn't mean any specific form of ID and the courts have also ruled that any law requiring specific forms of ID (here it's refering to the LEO stop, not what might be required to fly) would be unconstitutional.

1. Is refusing to undergo a search considered "sufficient cause"?

2. If the TSA can't detain me, then why can't I just blow by them, walk through a metal detector and walk to my gate? What resources do they have to make me 'obey' them? Is the only thing they can do to call the local police?

3. On what basis can the local police detain me and keep me from getting on my flight? Or force me to leave airport premises?

4. Can the LEO force me to submit to a search?

No.

Because it's illegal. If you do that and no law enforcement stops you, the likely result will be what's called a "terminal dump" here: the terminal is evacuated and searched and all passengers rescreened.

Yes, but there are police "on call" that have to be able to respond within a minute or two of being called.

Failure to complete the screening process. Or interference with the screening process in the "blow by them" scenario.

That depends on local law and will vary from airport to airport. The legal issue is whether you can be considered "loitering" once it's been determined that you aren't flying.

They can't force you to submit to TSA's search, but could do a search of their own should there be sufficient cause.

I know cops. I'm very close with some.

That said, they're still idiots... lovable idiots :D

Stop this GAY, "LEO," acronym: just say COPS!!!

God, what a nation of tools we've become... what a fking joke.

TSO's are just traitors/gov't welfare junkies.

edit: A friend of mine from city college became a TSO, though: nice guy! :D

Standard INAL disclaimer
A LEO can "ask" you to identify yourself but you do not need to identify yourself to them unless you are in a "stop and identify state". Even then the courts have rulled that you can do so verbally. You do not need to produce ID. It would however be a crime to provide them with a false name.


1. This seems to be covered by the 5th amendment. Courts have rulled that refusing a "police" search is not probable cause for an arrest and then a search.

2. Blowing past them could happen but the cops would probably be on you pretty quick or the tsa could attempt to block (non forcably) your access to the secure side of the airport.

3.Police keeping you off your flight no. The TSA can say that they are unable to complete the screening proccess and clear you to the secure side of the airport.
Police forcing you to leave the airport would be fuzzy but they would likley use some sort of trespassing law.

4. You could be Terry stopped by a LEO
police may do a limited search for weapons based on a reasonable and articulable suspicion that the person stopped may be "armed and dangerous.
police may briefly detain a person whom they reasonably suspect is involved in criminal activity.
Anything else you would have to be arrested and "Mirandize"

I am actually beginning to think of doing the same thing but I'm going to buy a refundable ticket and then refuse the scanner (gotta find out where it is at EWR) and then the grope.

Even if a cop searches you, I would imagine it would be no where near as assaultive as a TSA search. Since most airport cops are men, if they have to search a woman, it is done with the sides or the backs of their hands, never the front.

If you were to blow by security, there is a very good chance they would close the terminal, and require everybody to leave the terminal and be rescreened once they have searched the terminal to make sure you did not leave anything hidden anywhere. It would not make for a pleasant experience for you or anybody else traveling.

There is probably no chance what so ever of you getting onto a plane that takes off without being screened, even if that means they need to take everybody off every plane there and rescreen them and their stuff.

So there is some law that says the TSA must 'clear' you before you get to the secure part of the airport. Does anyone know what that law is?

So, here is what I have so far:
1. You decline the naked imaging and decline an invasive patdown. (Possibly claiming that TSA needs a warrant to search you according to the 4th amendment?)
2. The TSA refuses to clear you without an invasive personal search, then you are left "in limbo" and will be escorted away by a policeman for loitering.
3. The only way the police can search you is if they find some basis to 'suspect' you of committing a crime, but the refusal to be searched by TSA cannot be considered a basis for that search.

From what I'm hearing, the crux is that the TSA must clear you before you can travel, but they refuse to clear you without conducting a warrantless search. So they put you in a position where you must either surrender your 4th Amendment rights or you cannot complete interstate travel without undue burden.

Is that the final issue? (Loss of ability to travel, warrantless search without reasonable grounds?) Would that be sufficient for a civil rights lawsuit?

Let's agree that forcing TSA to evacuate a terminal is a crime against humanity, punishable by forfeit of your elite status on all airlines! :D

I thought it had been determined somewhere around this forum that once "in" the sterile area (generally defined as past the xray and scanners) one was required to complete the screening. That is, once screening started one could not opt-out and exit the area, screening had to continue to the end.

I'm not sure if I have your faith in the police. This could easily turn into a pmocek-style debacle where the police are not happy with your activism.

That is an interesting point. I guess my scenario would only be valid if I didn't put anything through the x-ray and refuse to walk through the scanner.

I wonder what is 'the end' of screening? You either pass or you are escorted off premises by a cop?

what is pat down becomes too physically painful?
 

What happens if you are coming back from sun country and received a nice sunburn? If the patdown becomes too painful, do you just have to bear the pain? Or can they revert to using back of the hands and the wand?

The equation changes when they indicate their intent to physically grope & sexually assault you. I suspect that will be focal point of some lawsuits after TSA insists on completing their gropes before you leave.

Oooh - excellent test case - you can't have any more ionizing radiation, because you just received your annual dose, and patdown is excruciatingly painful. :D