Court Says Travelers Can't Avoid Airport Searches

Old Aug 12, 07, 2:54 am
  #16  
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Originally Posted by VideoPaul View Post
in other news, the 9th circuit decided that the 2nd amendment is "unnecessary becasue there are police departmnts", the 10th amendment is "outmoded by the fact of federal funding controlling local politics", the 5th amdnement is "a speed bump in the highway of justice" and the 1st amendment is "quaint, but anachronistic and antagonistic toward many of different philosophies".
Of course it's never decided anything of the sort. Is there some reason why you attribute this fiction to them?
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Old Aug 12, 07, 2:55 am
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Originally Posted by ewick12 View Post
yeah, the 9th circuit is notorious for their activism rather than for actually looking at the law.
Notorious among those who get their news from talk radio and Fox commentators, perhaps. Care to name one decision in which the 9th Circuit refused to look at the law and instead were "activists"?
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Old Aug 12, 07, 9:17 pm
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Originally Posted by PTravel View Post
Notorious among those who get their news from talk radio and Fox commentators, perhaps. Care to name one decision in which the 9th Circuit refused to look at the law and instead were "activists"?
Some may say that its declaration of the Pledge of Allegiance as unconstitutional was activism since it looked passed the standing issue that the S.Ct. remanded on. It will be interesting to see what happens in Texas now that the legislature passed a similar addition to the Texas Pledge, which is similarly required to be recited with the Pledge of Allegiance in classrooms.
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Old Aug 12, 07, 10:36 pm
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Originally Posted by ND Sol View Post
Some may say that its declaration of the Pledge of Allegiance as unconstitutional was activism since it looked passed the standing issue that the S.Ct. remanded on.
Some would be wrong. Your allegation is they simply ignored the law to be activists. The 9th Cir. didn't ignore the law.

It will be interesting to see what happens in Texas now that the legislature passed a similar addition to the Texas Pledge, which is similarly required to be recited with the Pledge of Allegiance in classrooms.
It will depend if someone challenges it; absent a challenge it won't be tested.
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Old Aug 12, 07, 10:37 pm
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Originally Posted by ewick12 View Post
the 9th circuit does have a pretty high reversal rate
http://abclocal.go.com/kgo/story?sec...cal&id=5450499
Huh? According to the article you cite, the 9th Circuit decides about 9,000 cases per year, and around 18 of those cases are overturned by the Supreme Court. That's a reversal rate of 0.2%. Doesn't sound all that high to me.
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Old Aug 12, 07, 10:58 pm
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The Numbers

Originally Posted by marcvh View Post
Huh? According to the article you cite, the 9th Circuit decides about 9,000 cases per year, and around 18 of those cases are overturned by the Supreme Court. That's a reversal rate of 0.2%. Doesn't sound all that high to me.
Wrong data set. The only cases that count when determining a circuit's reversal rate are the cases from the circuit which the U.S. Supreme court agreed to review.

As noted in the article, during the most recent session of the Supreme Court, the supremes decided to hear 21 cases from the Ninth and reversed 18 of them, an 86% reversal rate. That's high, and what's interesting is that the Ninth Circuit's reversal rate has been high for more than 15 years.

I have no problem questioning the judgment of the Ninth Circuit -- that's what practicing lawyers do -- but I can't say the Aukai decision is an example of radical activism.
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Old Aug 13, 07, 6:24 am
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wow...

wow.. seems like Flyertalk members know a lot about laws.. well, you can't blame the authorities if they decided to enforce those laws.... we need those laws. and why be bothered if you know you got nothing to hide, right?
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Old Aug 13, 07, 9:05 am
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Originally Posted by iluvmorocco View Post
wow.. seems like Flyertalk members know a lot about laws.. well, you can't blame the authorities if they decided to enforce those laws.... we need those laws. and why be bothered if you know you got nothing to hide, right?
So you wouldn't mind being strip searched and having your house and car tossed without cause then right ... just because they wanted to search. After all, you have nothing to hide right?
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Old Aug 13, 07, 9:57 am
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Originally Posted by iluvmorocco View Post
why be bothered if you know you got nothing to hide, right?
Did you forget the rolleyes smiley ?
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Old Aug 13, 07, 10:19 am
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Originally Posted by essxjay View Post
Not quite. The Ninth Circus <cq> includes: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (plus a couple of territories). It's the largest of the 13 appellates.
and the most liberal.
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Old Aug 21, 07, 4:51 pm
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Of particular note in the opinion was this (cut from a snooze article -- emphasis added):
“The constitutionality of an airport screening search...does not depend on consent...and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world,” Bea wrote.

Judge Susan Graber, joined by Judges Michael Daly Hawkins and Kim M. Wardlaw, concurred separately. While agreeing with the majority that Aukai was subjected to a valid administrative search, Graber said the references to 9/11 and terrorism were “irrelevant and distracting.”

Graber wrote:

“By relying on those factors, the majority unnecessarily makes its solid holding dependent on the existence of the current terrorist threat, inviting future litigants to retest the viability of that holding.”

The case is United States v. Aukai, 04-10226.
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Old Aug 21, 07, 5:08 pm
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Sounds like the Court wants the Government to have its cake and eat it too - so much so that Law Dawg actually agrees with part of our sentiment

I hope this ruling is over-turned, but given the far-right swing of the Supreme Court, it's unlikely they will touch a ruling they think is just fine as is, even if there is an error in the ruling - they will just re-validate it and clarify the 9/11 nonsense.

It should be really simple - criminal search or administrative search. If it's an administrative search and you give consent by committing some act, then you should complete the search BUT the search can only be for items relevant to the administrative purpose - anything else is totally 100% inadmissible.

If it's a criminal search, or the search could become criminal upon finding non-germane items, you should have the right to withdraw consent at any time, for any reason and be free to leave without threat of further detention or search unless a specific warrant is issued to permit an additional criminal search.

The government can't have it both ways, and I'm not sure which startles me more - the 9th Circuit (Moonbeam Avenue) ruling in favor of the government, or a justice citing a non-legal political matter (9/11 and terrorism) as the basis for the decision. That was just idiotic, unlawful and as his colleague suggested, opened the door for challenges later on.
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Old Aug 21, 07, 5:34 pm
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Originally Posted by xyzzy View Post
Of particular note in the opinion was this (cut from a snooze article -- emphasis added):
When a judge makes a stupid ruling that's not based on law, it should be rechallenged.
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Old Aug 21, 07, 6:29 pm
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Originally Posted by bocastephen View Post
Sounds like the Court wants the Government to have its cake and eat it too - so much so that Law Dawg actually agrees with part of our sentiment

I hope this ruling is over-turned, but given the far-right swing of the Supreme Court, it's unlikely they will touch a ruling they think is just fine as is, even if there is an error in the ruling - they will just re-validate it and clarify the 9/11 nonsense.

It should be really simple - criminal search or administrative search. If it's an administrative search and you give consent by committing some act, then you should complete the search BUT the search can only be for items relevant to the administrative purpose - anything else is totally 100% inadmissible.

If it's a criminal search, or the search could become criminal upon finding non-germane items, you should have the right to withdraw consent at any time, for any reason and be free to leave without threat of further detention or search unless a specific warrant is issued to permit an additional criminal search.

The government can't have it both ways, and I'm not sure which startles me more - the 9th Circuit (Moonbeam Avenue) ruling in favor of the government, or a justice citing a non-legal political matter (9/11 and terrorism) as the basis for the decision. That was just idiotic, unlawful and as his colleague suggested, opened the door for challenges later on.

I do not have a law degree, only some limited knowledge of certain aspects of the law, and it appears to me that your knowledge level and law understanding is rather similar to mine.

However, I must disagree with the simplicity of the fact. It is not a case of either or. It's a case of keeping people safe. If a weapon is found, what is TSA to do? Obviosly call the cops. Suddenly the scope of the search moved from administrative to criminal.

If something OTHER than a weapon is found that is of an illegal nature, drugs for example, then certain guidelines should be set. Posession is a crime last I checked. TSA being federal employees must have a specific guideline to summon law enforcement officers to take over the search if they find a crime is being comitted. It seems to me that this is partially what TSA did. TSA found a wrapped object in the man's pocket and opened it. Now this is an universe's worth of gray area! If metal detectors weren't triggered, then I don't believe TSA has the right to search any further. As I said, TSA unwrapped the pipe, AFTER they had called the cops. Now whether the unwrapping was done because the cop authorized TSA to do it, or was done without the cop's knowledge, that I don't know. This piece of info is not included in the "statement of facts" and I believe it should have. It is this very point that would have made the difference between a rightful and wrongful search.

Basically this boils down to what everyone has been saying all along in this board, and that is that TSA simply has FREE REIGN over you and your posessions while you are in their yard. There are no guidelines, your rights fly out of the window and any complaint is met with threats and possible escalations to the level of arrest.

Placing this reign under the 911 umbrella is a very cheap move, shame on whoever uses it! Not everything that happens nowadays is terrorism related or terrorism inspired.

If TSA is to truly be effective yet NON INTRUSIVE they should assemble 2 teams of lawyers and judges. One pro unlimited searches and one against such searches. Let these two teams bust their heads and come up with a solution that CLEARLY defines what TSA can and cannot do. If there is a simple solution to be had, I believe this is it, however reaching a consensus will be anything but simple.

Too bad this is only a dream...
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Old Aug 21, 07, 6:54 pm
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Originally Posted by DEVIS View Post
...However, I must disagree with the simplicity of the fact. It is not a case of either or. It's a case of keeping people safe. If a weapon is found, what is TSA to do? Obviosly call the cops. Suddenly the scope of the search moved from administrative to criminal....
But a weapon is germane to the search - the administrative search is for the presence of weapons and other items deemed dangerous to public safety in air travel. If a gun, bomb, or large knife is found, then the course of action should be:

1) confiscate the item (gun/knife, not bomb), permit the customer to fly (absent any other evidence they are dangerous)...or...
2) remove the customer and his gun/knife from the airport...or...
3) refer the person and their weapon to the police for a decision on charges, if any

Obviously, a bomb or explosive device warrants a different approach and course of action than, for example, finding a small .22 lady pistol in someone's purse.

However, the issue is when and under what circumstances a person can refuse or withdraw from a search, and which items are germane to an administrative search of this type - clearly drugs, porn and drug paraphernalia are not germane to this type of search and should be inadmissible as evidence if found - unless the person has the right to stop the search at ANY point and leave the airport.
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