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When will a passenger make a citizen's arrest of a TSA Officer?

When will a passenger make a citizen's arrest of a TSA Officer?

Old Nov 20, 2010, 8:49 am
  #1  
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When will a passenger make a citizen's arrest of a TSA Officer?

I am a US attorney living overseas watching the news daily about the circus in the USA regarding TSA body scans and intrusive searches. I live in communist China and we have less intrusive security getting on planes here (in a communist country) than in the United States.

The Fourth Amendment to the US Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The ONLY entity which can create a valid constitutional exception to Fourth Amendment is the Supreme Court of the United States. Laws passed by congress which might limit the Fourth Amendment are not necessarily constitutional. In the end it is up to the Supreme Court to decide.

When a TSA officer says "you gave up your rights when you agreed to get in this line" he is referring to a case which went to the Supreme Court: US v. Davis, 482 F.2d 893 (1973). In US v. Davis the Supreme Court held that a warrantless search, also known as an administrative search, is valid under the Fourth Amendment:

screening of passengers and of the articles that will be accessible to them in flight does not exceed constitutional limitations provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.

There are multiple problems with the present actions by the TSA.

"No more extensive nor intensive than necessary"

It is very difficult for the TSA to argue that all of a sudden, with the sudden advent of the full body scan equipment, that the present intensive pat down searches are "no more extensive nor intensive than necessary". The previous pat down method was sufficient to keep the American public safe during the last nine years since 9/11 and for 30 years prior. Why all of a sudden do we need a new pat down method?

More fundamentally there is also a question of whether we need full body scanners at all. Are full body scanners really no more intrusive than necessary? How is a machine which requires human scanning better than a metal detector in combination with an explosives trace-detection puffer machine? What happens when a TSA agent viewing the screen gets sleepy?

"Confined in good faith to that purpose"

TSA has repeatedly stated the reason for the increased intensity of body pat-downs in order to catch bombers imitating Umar Farouk Abdulmutallab, the "Christmas Day" bomber who smuggled explosives in his underware.

This argument is patently dishonest. Surely the biggest risk of other underwear bombers appearing was during the days and weeks following the initial attempt, not nearly a year after the original incident. Did it really take the TSA ten months to develop a new pat down search technique to foil underwear bomb smuggling? If so then we need to get rid of the TSA because they are incompetent.

The catch 22 for the TSA is convincing the public to use the new full body scanners. Given the privacy and health issues surrounding these machines the TSA must come up with a forceful way of convincing the public to comply with this new search technology. If an individual can elect to not go through the scanner then all a terrorist will have to do to thwart the new machines is choose to go through a different search mechanism. To be effective any allowable alternative search process be at least as intrusive as the body scanner search.

If TSA implemented the more intrusive search procedure simply to discourage people from opting out of the full body scan machines then the TSA has specifically violated the "good faith" requirement set by the US Supreme Court to allow for these scans.

Ultimate Civil Disobedience: Citizens Arrest

I will never submit to a strip search or a full body scan unless I am placed under arrest or have no other alternative. My only option to travel by air in the USA at present is to submit to the more intensive body pat down.

While TSA officers are federal employees they do NOT have the power to arrest anybody other than by making a citizen's arrest. Legislation passed by congress requires passengers to follow their lawful instructions, but they do not have the power to arrest anybody.

If I was in college, out of work or retired and a TSA groped my genitals and I was in a legal jurisdiction where I was familiar with the law I would immediately call 911, tell the police that I had been assaulted, fill out the citizen's arrest forms and press charges against the TSA officer for assault. Assault is always a state crime and even though they are federal employees TSA agents do not have immunity and can be found guilty of assault.

When making a citizen's arrest it is important to understand the law in state you are in which is easily accomplished through the Internet. It is also important to wait for the police to arrive before you tell the TSA officer you are charging him with assault. If the TSA officials ask that you move along simply tell them that you have called the police and are waiting for the police to arrive.

There is a risk to the individual making a citizen's arrest where an unfriendly judge might declare the arrest invalid and you may be subject to a lawsuit for false arrest. Usually this is a civil charge rather than a criminal charge, although a great deal depends on the laws of the state you are in. I would visit my nearest office of the American Civil Liberties Union (ACLU) or my nearest law school legal clinic and seek out legal advice before I arrived at the airport. I would have a lawyer ready to represent me if anything went wrong.

I am writing this post because I would like to invite other lawyers to read up on this area of law and see if they agree or disagree with my analysis. I am a business lawyer, not a criminal or constitutional lawyer, but what is happening in the USA right now is so infuriating that it upsets me to the core as an American. I look forward to reading your responses.
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Old Nov 20, 2010, 8:55 am
  #2  
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This too is a better idea than the opt-out day. Get 40 or 50 passengers to opt-out, then make a citizen's arrest of the TSA clerks who fondle them. The airports would quickly shut down for lack of TSA.
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Old Nov 20, 2010, 9:00 am
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This is an interesting idea. I don't know if it would stick or not, but all it would take would be one case to stick to really substantially change the landscape of the debate.

I wonder if this will be tried.

JBC78
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Old Nov 20, 2010, 9:04 am
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Citizens arrrest is over rated and cannot be applied across all venues equally. Unless you are very familiar with the laws in your jurisdiction you would be way out on a limb. Besides how is that arrest going to be transferred to a judicial system to heard in a court of law. We had another one of those "you touch my ...... and I will have you arrested." FARES come through on 11.19 and when he was informed about the consequence of his actions, he relented.
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Old Nov 20, 2010, 9:11 am
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I agree with Eyecue that it might be difficult but all it would take was one TSA agent to sucesfully to sued for sexual assault or something along those lines to really change the tone of this debate.

JBC78
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Old Nov 20, 2010, 9:13 am
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Can you make a Citizens Arrest if the TSA Agent tells you what they will do and then you let them do it?

OH WAIT! YOU CANT DECLINE! Once you are there, you cant say NO! You either have to be irradiated which is safe OR be molested. You cant just decide not to fly.
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Old Nov 20, 2010, 9:29 am
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Originally Posted by attyinchina
I am a US attorney living overseas watching the news daily about the circus in the USA regarding TSA body scans and intrusive searches. I live in communist China and we have less intrusive security getting on planes here (in a communist country) than in the United States.

The Fourth Amendment to the US Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The ONLY entity which can create a valid constitutional exception to Fourth Amendment is the Supreme Court of the United States. Laws passed by congress which might limit the Fourth Amendment are not necessarily constitutional. In the end it is up to the Supreme Court to decide.

When a TSA officer says "you gave up your rights when you agreed to get in this line" he is referring to a case which went to the Supreme Court: US v. Davis, 482 F.2d 893 (1973). In US v. Davis the Supreme Court held that a warrantless search, also known as an administrative search, is valid under the Fourth Amendment:

screening of passengers and of the articles that will be accessible to them in flight does not exceed constitutional limitations provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.

There are multiple problems with the present actions by the TSA.

"No more extensive nor intensive than necessary"

It is very difficult for the TSA to argue that all of a sudden, with the sudden advent of the full body scan equipment, that the present intensive pat down searches are "no more extensive nor intensive than necessary". The previous pat down method was sufficient to keep the American public safe during the last nine years since 9/11 and for 30 years prior. Why all of a sudden do we need a new pat down method?

More fundamentally there is also a question of whether we need full body scanners at all. Are full body scanners really no more intrusive than necessary? How is a machine which requires human scanning better than a metal detector in combination with an explosives trace-detection puffer machine? What happens when a TSA agent viewing the screen gets sleepy?

"Confined in good faith to that purpose"

TSA has repeatedly stated the reason for the increased intensity of body pat-downs in order to catch bombers imitating Umar Farouk Abdulmutallab, the "Christmas Day" bomber who smuggled explosives in his underware.

This argument is patently dishonest. Surely the biggest risk of other underwear bombers appearing was during the days and weeks following the initial attempt, not nearly a year after the original incident. Did it really take the TSA ten months to develop a new pat down search technique to foil underwear bomb smuggling? If so then we need to get rid of the TSA because they are incompetent.

The catch 22 for the TSA is convincing the public to use the new full body scanners. Given the privacy and health issues surrounding these machines the TSA must come up with a forceful way of convincing the public to comply with this new search technology. If an individual can elect to not go through the scanner then all a terrorist will have to do to thwart the new machines is choose to go through a different search mechanism. To be effective any allowable alternative search process be at least as intrusive as the body scanner search.

If TSA implemented the more intrusive search procedure simply to discourage people from opting out of the full body scan machines then the TSA has specifically violated the "good faith" requirement set by the US Supreme Court to allow for these scans.

Was the previous pat down as good as the new standard pat down? Why would you assume that?

If you read this site, you should be aware of the many critics here who cite red team failures... and what if I were to tell you TSA has the metrics to prove the new pat down has a higher success rate? Just a thought...

What happens when a screener viewing the x-ray you put your luggage through gets sleepy? It is a VALID point - yet I see NO ONE making the argument that because screeners do get sleepy while scanning luggage on x-ray we should not use those machines. It is hypocritical to argue one but not the other. Again, just a thought.

As far as the puffers, regardless of whether or not they do or do not break down, you are aware of how slow they are, correct? If people think the AIT is slow, requiring passengers to go through a WTMD (which does NOT alarm on all metal, btw, there is a threshold) and THEN the puffer would shut down the airports.

And even if the puffers work perfectly, when there is an alarm, do you understand the process to "reset" those machines (and this is pretty much standard for all manufacturers of puffers, not just the ones previously used by TSA)? Without going into detail, it is very possible, that with each alarm, the puffer is down for 20 to 30 minutes, and thats if it "resets" without any problems, i.e., detects another alarm during the purging process. The entire inside of the machine where people stand has to be clean, you have to re-calibrate the puffer to ensure its accuracy. So I will argue, even if puffers didn't break so often - and perhaps that problem could be fixed - they are prohibitively slow to be effectively used. Slower than AIT.

Lastly, the arguemnt you bring up as a possibility, that the new pat down is to discourage people to opt-out, is fatally flawed. As reported on this very site, this pat down is being used even where there exist no AIT at the airport. Some airports will not have the AIT for years, but the pat down exist there. It has been applied equally across the board.
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Old Nov 20, 2010, 9:45 am
  #8  
 
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Hi SATTSO,

I don't think anyone here is advocating for no security. I think the key point that everyone is trying to make is that seeing someone naked, or being touched on the groin or breasts, or sticking hands down pants is wrong. It is a violation of our bodily integrity particularly when you have not been accused of a crime.

Security is a real challenge and I don't think anyone here denies that you folks have a hard job, but what is happening now is morally wrong. That is why there is this huge outcry. What is happening is a violence against a persons dignity and bodily integrity. From the time we are small we are taught to not let anyone touch is inappropirately, and thats a lesson that sticks.

JBC78
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Old Nov 20, 2010, 10:03 am
  #9  
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Eyecue

Depending on the jurisdiction Citizens Arrests are more powerful than you think. In the case of an intrusive pat down the fact that it is intrusive makes it the definition of assault. There is no requirement that you try to prevent an assault to charge somebody with an assault. The TSA is at present hiding behind their status as a government entity to repeatedly assault US citizens while performing what is likely an unlawful search. Again, whether or not it is actually unlawful will be a question which will eventually be decided by the Supreme Court, but based on the present law it is likely unlawful.

Mr. Tyner went into the airport without doing his homework. He should have let the TSA official search him and if he felt the search was offensive immediately dial 911, call the police and then press charges against the TSA officer who searched him. The police will come and they will be FORCED to take the TSA officer away in handcuffs. Mr. Tyner will receive a form to fill out and explain the reason for arrest. Of course the police will try to talk you out of filing a citizen's arrest because they will be put in a very awkward position, but just as they would be forced to arrest you if a TSA wanted to make a citizen's arrest, they will be forced to arrest the TSA officer.

As I said anybody who would attempt to do this should do their homework. Most ABA approved law schools have legal clinics which can provide legal advice. You can probably find a lawyer within the ACLU which would be happy to help in this area as well.

NEVER believe what police tell you: in most states they are allowed to lie / trick a suspect. They can tell you that if you make a citizen's arrest you will likely end up in jail yourself. The key is the word "likely". That is the lie. False arrest is a civil violation, not a criminal violation.
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Old Nov 20, 2010, 10:10 am
  #10  
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Originally Posted by attyinchina
Eyecue

Depending on the jurisdiction Citizens Arrests are more powerful than you think. In the case of an intrusive pat down the fact that it is intrusive makes it the definition of assault. There is no requirement that you try to prevent an assault to charge somebody with an assault. The TSA is at present hiding behind their status as a government entity to repeatedly assault US citizens while performing what is likely an unlawful search. Again, whether or not it is actually unlawful will be a question which will eventually be decided by the Supreme Court, but based on the present law it is likely unlawful.

Mr. Tyner went into the airport without doing his homework. He should have let the TSA official search him and if he felt the search was offensive immediately dial 911, call the police and then press charges against the TSA officer who searched him. The police will come and they will be FORCED to take the TSA officer away in handcuffs. Mr. Tyner will receive a form to fill out and explain the reason for arrest. Of course the police will try to talk you out of filing a citizen's arrest because they will be put in a very awkward position, but just as they would be forced to arrest you if a TSA wanted to make a citizen's arrest, they will be forced to arrest the TSA officer.

As I said anybody who would attempt to do this should do their homework. Most ABA approved law schools have legal clinics which can provide legal advice. You can probably find a lawyer within the ACLU which would be happy to help in this area as well.

NEVER believe what police tell you: in most states they are allowed to lie / trick a suspect. They can tell you that if you make a citizen's arrest you will likely end up in jail yourself. The key is the word "likely". That is the lie. False arrest is a civil violation, not a criminal violation.
I personally believe that the new pat down being used by TSA is an assault.

That being the case, there are LEO's at many checkpoints. As a sworn law enforcement officer are they not required to intervene if they witness an act they believe to be a violation of standing law?

I wonder if the airport police are not in jeopardy for seeing TSA assault people and taking no action.
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Old Nov 20, 2010, 10:11 am
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Originally Posted by attyinchina
Eyecue

Depending on the jurisdiction Citizens Arrests are more powerful than you think. In the case of an intrusive pat down the fact that it is intrusive makes it the definition of assault. There is no requirement that you try to prevent an assault to charge somebody with an assault. The TSA is at present hiding behind their status as a government entity to repeatedly assault US citizens while performing what is likely an unlawful search. Again, whether or not it is actually unlawful will be a question which will eventually be decided by the Supreme Court, but based on the present law it is likely unlawful.

Mr. Tyner went into the airport without doing his homework. He should have let the TSA official search him and if he felt the search was offensive immediately dial 911, call the police and then press charges against the TSA officer who searched him. The police will come and they will be FORCED to take the TSA officer away in handcuffs. Mr. Tyner will receive a form to fill out and explain the reason for arrest. Of course the police will try to talk you out of filing a citizen's arrest because they will be put in a very awkward position, but just as they would be forced to arrest you if a TSA wanted to make a citizen's arrest, they will be forced to arrest the TSA officer.

As I said anybody who would attempt to do this should do their homework. Most ABA approved law schools have legal clinics which can provide legal advice. You can probably find a lawyer within the ACLU which would be happy to help in this area as well.

NEVER believe what police tell you: in most states they are allowed to lie / trick a suspect. They can tell you that if you make a citizen's arrest you will likely end up in jail yourself. The key is the word "likely". That is the lie. False arrest is a civil violation, not a criminal violation.
We have been down this road a lot. There is something called Mens Rae and it is severly lacking in all instances of TSA patdowns. I have personally seen two cases where checkpoint LEO's have not arrested TSA when the passenger is standing there yelling about being assaulted, groped, etc.
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Old Nov 20, 2010, 10:21 am
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this could be HIGHLY effective if properly coordinated....

you would need to pick the right airport (jurisdiction) ...an area with laws supporting citizens arrest and with laws that enable you to make a case for sexual assault (or what other crime you arrest them for)

then have dozens of volunteers go through and perform these citizens arrests...

then have several volunteer attorneys standing by to defend/support them with the local authorities

If you could get enough volunteers in the same place at the same time, very well may shut an airport down

also, the publicity would be priceless....lead story on every network

Of course TSA would counter back with the old "Interfering with government security charge"

But this kind of civil disobendence is at the very foundation of our country...

Originally Posted by eyecue
We have been down this road a lot. There is something called Mens Rae and it is severly lacking in all instances of TSA patdowns. I have personally seen two cases where checkpoint LEO's have not arrested TSA when the passenger is standing there yelling about being assaulted, groped, etc.
TSC'a are NOT above the law...

I can't wait until that is proved ...

and while TSA doesn't get to decide what laws the will or will not follow, TSA doesn't get to MAKE the laws either... this will be proved one day

Last edited by Kiwi Flyer; Nov 26, 2010 at 11:32 am Reason: merge consecutive posts
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Old Nov 20, 2010, 10:25 am
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Originally Posted by attyinchina
Eyecue

Depending on the jurisdiction Citizens Arrests are more powerful than you think. In the case of an intrusive pat down the fact that it is intrusive makes it the definition of assault. There is no requirement that you try to prevent an assault to charge somebody with an assault. The TSA is at present hiding behind their status as a government entity to repeatedly assault US citizens while performing what is likely an unlawful search. Again, whether or not it is actually unlawful will be a question which will eventually be decided by the Supreme Court, but based on the present law it is likely unlawful.

Mr. Tyner went into the airport without doing his homework. He should have let the TSA official search him and if he felt the search was offensive immediately dial 911, call the police and then press charges against the TSA officer who searched him. The police will come and they will be FORCED to take the TSA officer away in handcuffs. Mr. Tyner will receive a form to fill out and explain the reason for arrest. Of course the police will try to talk you out of filing a citizen's arrest because they will be put in a very awkward position, but just as they would be forced to arrest you if a TSA wanted to make a citizen's arrest, they will be forced to arrest the TSA officer.

As I said anybody who would attempt to do this should do their homework. Most ABA approved law schools have legal clinics which can provide legal advice. You can probably find a lawyer within the ACLU which would be happy to help in this area as well.

NEVER believe what police tell you: in most states they are allowed to lie / trick a suspect. They can tell you that if you make a citizen's arrest you will likely end up in jail yourself. The key is the word "likely". That is the lie. False arrest is a civil violation, not a criminal violation.
You can make all the citizen's arrests that you like or feel comfortable with. However, if the prosecute chooses not to file those charges and actually prosecute the case then what? Also, be very familiar with the jurisdiction because some do have statues in place to make false police reports (you would need to make a police report to make the citizens arrest) a criminal offense. A misdemeanor but a criminal offense non the less.

FB
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Old Nov 20, 2010, 10:34 am
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Originally Posted by eyecue
We have been down this road a lot. There is something called Mens Rae and it is severly lacking in all instances of TSA patdowns. I have personally seen two cases where checkpoint LEO's have not arrested TSA when the passenger is standing there yelling about being assaulted, groped, etc.
There's a few holes in this.

First, it's "mens rea", not "Mens Rae"

Second, mens rea is usually translated as culpable mental state. It covers both intent and knowledge - that is, knowledge of your actions is sufficient to meet the burden regardless of intent when a clause references "mens rea".

Third, many laws, especially for assault, sexual assault, etc, are strict liability laws. Mens rea is not a component of liability. Texas' laws on assault are a good example of the distinctions and how they can be implemented in law. From http://www.statutes.legis.state.tx.u.../htm/PE.22.htm
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
22.01(1) is a clear strict liability clause completely eliminating any mental culpability - simple negligence is enough to allow prosecution. (2) requires mental culpability, but clearly allows prosecution of actions taken with knowledge but without intent. (3) is similar, with an additional clause.

TLDR: mens rea is not required to commit assault in Texas.

Also note I'm not lawyer, free legal advice is worth what you paid for it, etc.
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Old Nov 20, 2010, 10:50 am
  #15  
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Originally Posted by eyecue
Citizens arrrest is over rated and cannot be applied across all venues equally. Unless you are very familiar with the laws in your jurisdiction you would be way out on a limb. Besides how is that arrest going to be transferred to a judicial system to heard in a court of law. We had another one of those "you touch my ...... and I will have you arrested." FARES come through on 11.19 and when he was informed about the consequence of his actions, he relented.
Agreed but here's a scenario for you......

Pax completes the screening process (std or enhanced)
Nothing found
Pax puts themselves back together after screening
Pax mutters, what a f*cking joke the TSA is"
TSO hears said mutter and asks the pax, "what did you say"
Pax repeats the mutter so the TSO can hear it
TSO tells the pax they need to stay because of what they said
Pax says no and begins to leave
TSO physically (n.b. physically) detains said pax

The physical detention then constitutes assault on the pax by the TSO and that can result in the TSO being arrested
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