Court: TSA Agents Can Be Shielded From Certain Civil Rights Lawsuits Because They're Too Important

from the doing-God's-work...-poorly dept

A First and Fourth Amendment lawsuit filed against a TSA agent and a handful of Philadelphia police officers has reached the 3rd Circuit Court of Appeals. Unfortunately, the court has decided the work TSA agents do, however incompetently, is too important to be in any way stifled by the threat of First Amendment lawsuits. [h/t Brad Heath]

Roger Vanderklok was attempting to fly from Philadelphia to Miami to participate in a half-marathon. He packed his heart monitor and watch inside something certain to be flagged by TSA agents 5-7% of the time: a PVC pipe with both ends taped shut.

In this case, a TSA employee did flag the “device” and had some questions about Vanderklok’s PVC-and-wires package. Agent Charles Kieser engaged in a conversation with Vanderklok about the pipe, ultimately resulting in the TSA employee having Vanderklok arrested for threatening to smuggle a bomb onto a plane.

The details of this encounter diverge a bit, depending on who you ask. But they do not diverge nearly as much as Agent Kieser believes they do. The court notes in its decision [PDF] that Kieser’s description of the incident does not align with that of a far more impartial observer.

Kieser testified on direct examination that Vanderklok was agitated and waved his arms in the air repeatedly during the secondary screening. On cross examination, he further elaborated on his assertion that Vanderklok was physically disruptive at the checkpoint. Surveillance video of almost the entire interaction was played during the cross examination of Officer Pinkney and Kieser’s testimony was shown to be largely inconsistent with the video.

Vanderklok’s version of the story more closely aligns with the video. According to the traveler, he was cooperative throughout the incident and Kieser basically lied in order to have him arrested.

Vanderklok maintains that at all times he was patient and not agitated during the secondary screening but that Kieser was agitated and argumentative throughout. Kieser asserts essentially the opposite: that Vanderklok was belligerent during the secondary search. In Kieser’s telling, Vanderklok said, “I could bring a bomb through here any day I want and you’ll never find it.” (JA 8.) Vanderklok denies making that or any similar statement. He says that Kieser fabricated the statement after Vanderklok asked for a complaint form and stated his intention to report Kieser’s behavior. There were no other known witnesses to Vanderklok’s alleged statement.

After the screening was over, Vanderklok repacked his bag, thinking he was going to be boarding his flight. He requested a complaint form and headed for his plane where he was greeted by Philadelphia police officers. They arrested him for disorderly conduct and for threatening to place a bomb on a plane.

The lawsuit followed. In it, Vanderklok alleges a variety of First and Fourth Amendment violations. Most of those were dismissed at the lower level. Vanderklok only appealed his First Amendment retaliatory prosecution and Fourth Amendment malicious prosecution claims. Unfortunately for him, neither has been upheld. Jurisdictional issues prevent the interlocutory appeal of the Fourth Amendment dismissal, leaving Vanderklok with only the First Amendment claim to litigate at this level.

After a long discussion of the underlying issues and precedent, the Appeals Court arrives at the conclusion Agent Kieser can’t be sued for violating Vanderklok’s First Amendment rights with a retaliatory arrest. More unfortunately, the court decides to take a stance of this issue, setting precedent for all other cases to arise in its jurisdiction.

[A]s the role of the TSA has become prevalent in the lives of the traveling populace, disputes involving airport screening personnel may come up with some frequency, and the existence of a Bivens action for First Amendment retaliation is no longer something that we should assume without deciding. Today we hold that Bivens does not afford a remedy against airport security screeners who allegedly retaliate against a traveler who exercises First Amendment rights.

This leaves Bivens exactly where it was when it was decided: limited to Fourth, Fifth, and Eighth Amendment claims. The First Amendment isn’t going to be allowed to join this small party. It also notes that its decision leaves people like Vanderklok somewhat screwed. The United States can substitute itself for certain federal employees facing lawsuits, rendering the litigation pointless by claiming sovereign immunity. Whether or not the government chooses to intercede in this case is irrelevant. The possibility that it might forces plaintiffs to plead these cases in state court.

So, although in such cases the United States would retain its sovereign immunity, state law tort claims against the individual could proceed. That would provide an alternative remedy for an airline passenger who suffers as a result of a TSA screener’s actionable conduct outside the scope of his employment. In instances where the TSA screener has acted within the scope of his employment, it is possible that no judicial remedy will exist if a Bivens action is not implied because the United States could substitute itself for the screener and claim sovereign immunity. But that is by design.

In Vanderklok’s case, there’s really nothing left for him now that the Appeals Court has shot him down.

Based on the District Court’s orders as they now stand, however, there are no alternative judicial remedies available to Vanderklok, because the District Court concluded that Kieser was not an investigative or law enforcement officer and there was no challenge as to whether Kieser acted within the scope of his employment.

Even though the court recognize it might be creating a situation where plaintiffs have zero legal options (beyond the useless TSA complaint form) when rights appear to be violated by TSA staffers, the court decides it’s worth it because safety and security are more important than individual rights and remedies.

Here, Vanderklok asks us to imply a Bivens action for damages against a TSA agent. TSA employees like Kieser are tasked with assisting in a critical aspect of national security – securing our nation’s airports and air traffic. The threat of damages liability could indeed increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers. In light of Supreme Court precedent, past and very recent, that is surely a special factor that gives us pause.


Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context.

And here’s the final attempt to balance the decision, which does nothing more than “suggest” TSA agents not act like Agent Keiser did.

We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior. Discipline by the government should be swift and certain, when its employees’ actions warrant it.

The government does a terrible job disciplining itself, as any number of critical reports on TSA agents clearly illustrates. There’s across-the-board incompetence coupled with routine abuse of passengers. Add to this a certain amount of theft, longheld beliefs in behavioral junk science, and a pizza box recruiting system, and you have a walking disaster that contributes little to travel or safety. The court here says adding a Bivens remedy would “create a cure worse than the disease.” But have they taken a close look at the “disease” lately?

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Comments on “Court: TSA Agents Can Be Shielded From Certain Civil Rights Lawsuits Because They're Too Important”

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That One Guysays:

Phantom 'safety' trumps legal rights apparently

We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior.

"However, if the agency decides not to police itself, we are not only ‘suggesting’ that there should be no legal remedy available to those that believe themselves wronged, we are flat out stating it."

"We’re not saying that they should do it… just that we have no interest in punishing them if they do."

By outright stating that there are not, and should not be a legal remedy for people who feel themselves wronged by the agency they have essentially put the agency above the law. ‘They protect us from the boogiemen, limits would be detrimental to that task, so the only people who should have any say with regards to whether they’ve done something wrong is the agency itself’.

A pity that yet another pack of cowardly judges has decided that ‘national security’ and security theater is more important that the rights of the public and the legal system.


Re: Phantom 'safety' trumps legal rights apparently

Your safety has ALWAYS been used by governments as an excuse to remove your rights. It is the absolute most “classic con” of government.

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

~James Madison

This is why the 2nd is so important, because we citizens are responsible for this, NOT government like all the cowards say. If the citizens are not armed then we cannot form militia to defend ourselves from enemies foreign or domestic.

We are becoming slaves to a tyrannical government that decides what our rights are based on GOVERNMENT ideas, you actual rights be damned.

So my recommendation for those that support gun laws, stop whining, you did ask for this. Now take your comeuppance like champs because more than enough other humans and HISTORY TOLD YOU SO!


Re: Re: Re: Phantom 'safety' trumps legal rights apparently

It is our fault collectively as a society, I hope you are able to understand the difference between this and personal responsibility.

We are supposed to ensure our society as a whole is in proper working order. It cannot be done when we start asking for government and other people to carry our slack and to make decisions we need to make for ourselves.

If society is not working, government certainly will not either!

Cowardly Lionsays:

On governments...

In the 1930’s the German people voted in Adolf Hitler and his Nazi party. Once in power, from day one, the Nazi party a) increased their own power by removing the existing government apparatus, and b) decreased individual power by abolishing trade unions, political parties. No-one saw this coming, least of all the German people who wanted nothing more than their rampaging economy under control and access to essentials such as food.

It’s neither right nor fair to blame individual societies for the government they get. Let’s not forget it took the combined armed forces of much of the planet to (eventually) thwart Germany, Japan and Italy.


Re: On governments...

“It’s neither right nor fair to blame individual societies for the government they get.”

Would it help if I told you that one of your own says the same thing?

Obama, said you get the politicians you deserve. Germany got the politicians they deserve.

“No-one saw this coming” This is such tripe, you sound just like Trump…
“Now, I have to tell you, it’s an unbelievably complex subject,” he added. “Nobody knew health care could be so complicated.”

You never see anything coming because your head is in the dirt, or you are busy looking for excuses. Hitler rose to power the same way all politicians do, they get a bunch loser voters like you, and then they promise them a bunch of shit. And while they are busy keeping them busy with all their bullshit promises they screw them over.

Anyone voting for an R or a D right now is getting exactly what they deserve.


Re: Re: Re: Re: Re: Phantom 'safety' trumps legal rights apparently

No, it’s your fault for choosing to remain ignorant.

The Quote by James Madison is a well connected and studied quote. If you are unable to understand the context of a post with that quote in there, then the education system where you grew up has failed you!

You too, shall be repeating history that could be easily avoided.


Re: Phantom 'safety' trumps legal rights apparently

There is legal remedy, but it’s very, very narrow in scope.

As for Phanton safety, consider this: Would you feel comfortable flying if you could just want to your gate and get on with your carry on bags unchecked, no screening, no nothing, just a check to make sure you have a boarding pass?

I suspect that for most people, the answer would be a big fat no. While you may feel it’s phantom security or security theater, most people know that it’s effective compared to the era without it, when planes were routinely hijacked and the public’s lives put in danger on a very regular basis.


Re: Re: Phantom 'safety' trumps legal rights apparently

Public safety, and screening of passengers and baggage can be carried out without the agents abusing their power and the passengers. Indeed the reported incident had nothing to do with security, but rather a petty desire for revenge because the TSA agent had been fooled by something innocent. Having found that the tube and its contents were innocent, the passenger should have left to go on his way.

Matthew Clinesays:

Re: Re: Phantom 'safety' trumps legal rights apparently

While you may feel it’s phantom security or security theater, most people know that it’s effective compared to the era without it, when planes were routinely hijacked and the public’s lives put in danger on a very regular basis.

Given that after 9/11 that pilot’s cabins are locked, passengers will fight back against hijack attempts, and that TSA agents are abysmally bad at stopping weapons from being smuggled past security checkpoints, exactly how much extra security do does TSA actually provide?


Re: Re: Re: Phantom 'safety' trumps legal rights apparently

You start to see a parallel between MyNameHere’s heroes.

Both copyright enforcers and TSA agents are both shitty at their jobs. Notoriously so. But when discourse begins about whether these roles should be scrutinized, not necessarily removed, he trots in to trumpet their praises, saying that we’d (somehow, magically) be far worse off if they were completely removed.

He’s a sucker for unquestioned authoritarianism. Half of that reason is because he’s got such a high opinion of himself he thinks he’ll never be inconvenienced by trigger-happy law enforcement, since he’s such a model citizen. Which is why he defends cops that shoot naked, unarmed people running away from them.


Re: Re: Phantom 'safety' trumps legal rights apparently

While you may feel it’s phantom security or security theater, most people know that it’s effective compared to the era without it, when planes were routinely hijacked and the public’s lives put in danger on a very regular basis.

Plane hijackings were never "routine".


“Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context.”

It’s so significant that you can regularly take objects they deem too dangerous (like weapons) and they won’t notice. So significant they regularly beat disabled people, do invasive cavity searches for no reason, confiscate toys resembling dangerous objects, vital medicine, breast milk.

Indeed significant.


So, what they're saying is...

Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context.

It seems like the Court is saying that actions such as harassing passengers, providing false information to police officers, and lying under oath in a court of law are all part of the job description of TSA agents? I fail to see how any of those actions help with ‘securing public safety’. But what actions will be protected next? Will TSA agents be allowed to shoot passengers if their bag looks suspicious, or if the screening line gets too long? Maybe expensive jewelry or electronics will be deemed ‘suspicious’ and subject to forfeit. Possibly attractive passengers will be selected for ‘special screening’ in a back room? All OK with this court apparently, as the TSA agents job is just too important to hold them liable. Brilliant.



Can he not take this to a higher appeals court?

Even if he could, appeals courts are notorious for working from the presumption that the lower court was correct unless the appellant can show the court misapplied settled law or precedent. Further, they hate dealing with any issues that were not raised (and lost) at lower court levels. This court’s decision is very bad, but is not obviously a violation of law or precedent, so it’s unlikely that a higher court will overrule it.

Most government accountability suits depend on whether existing law says the government agent was obviously wrong. Other than the obvious perjury charges (both in filing a false police report and in court), it’s not clear that the TSA agent’s misconduct is specifically enumerated as illegal. Those perjury charges are for local law enforcement to pursue (or, more likely, ignore), not for the harmed passenger.


Re: Re:

“unless the appellant can show the court misapplied settled law or precedent.”

I guess saying fuck you to the U.S. Constitution does not apply.

this is why it is so critical for people to stop letting their petty politics justify ignoring liberty when someone feels the need to push their “values” onto others!


Re: Re: Re:

I guess saying fuck you to the U.S. Constitution does not apply.

To U.S. government employees? Of course it applies. It is a prerequisite for most jobs.

It’s up to the people to minimize their risk in U.S. airports. Don’t fly into the U.S. Don’t fly in the U.S. The only direction to take is out. You may still get screwed over doing that. But only once.

If you want to apply for political asylym fleeing an oppressive country with a defective justice system, this verdict is one more on the list to reference.


Re: Re: Re: Re:

I probably should have put an /s there.

Poe’s Law has a sharp pointy end.

I was specifically referring to the irony that in order for appeal the person appealing is going to have to expend effort to explain to a higher court that a lower court is clearly disregarding the constitution and willfully sullying the bench.

The ruling here makes it clear that the judges should be prosecuted, but they even admitted that they would be ignoring the constitution out of political convenience. How have we got to the point where these judges can publicly declare that they are not going to follow the law while attending to their duties and not have a monolithic public shit show?

How far have we fallen indeed? We have fallen so far there is no merit in discussing how far because we are well past that stage! These judges have made it clear that “redress of grievances” will not be allowed, which means peaceable options are no longer of value, we must violently seek justice if we are to have it!


“We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior”

This statement directly contradicts what they just finished saying.

They might not suggest that they should act with disdain.. But they are outright saying that they can escape without consequences of their bad behavior.



The threat of damages liability could indeed increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers

Let’s be realistic. The decision made by a TSA officer is not “split-second” like a police decision can be. A TSA officer can take several seconds to decide, or call a supervisor over.



Court affirms high-school graduates still have career opportunities as civil servants if they can pass a 2-week course! Learn to pat down, frisk, wave a wand, tackle, molest, and humiliate people with the full backing of our Executive AND Judicial branches today! Also included in your training will be lessons such as “How to be a more effective bully”, “Yes a badge and a gun DOES make you superior”, “Its not groping if its in front of a crowd”, “Racism and you: Its for Safety!” and more.

Gods Creationsays:

Whose the sovereign?

This article says the US will substitute itself for the defendant and claim sovereign immunity to any lawsuit. And it will certainly TRY to do that.

The solution is for the injured party to file their suit as the SOVEREIGN, which all people in America are. The US government is not itself sovereign. It is a corporation that exercises limited sovereign authorities for the benefit of the people, the true sovereignty.

Instead, the people hire ATTORNEYS, declaring themselves incompetent in the eyes of the law, and giving up their standing in Law.

The people have given up their sovereignty to the trickery of the government and it’s goons. However, it is still enforceable if it is properly claimed and belligerently defended.


Court protects TSA

TSA does not make “split-second decisions” as anyone who has stood in line or gone through the screening process can attest.

I get the impression the judges in this case haven’t been to the airport or been through security, in a very long time, if ever.

The only “split second” decisions that are made always involve retaliation against passengers who complain about TSA misconduct. TSA isn’t interested in protecting the public, they are interested only in protecting themselves.

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