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.