The Portland man who made national news five years ago when he stripped naked at Portland International Airport to protest a security search now has a different legal dilemma.

John E. Brennan was acquitted of indecent exposure, but currently has a case before the 9th U.S. Circuit Court of Appeals challenging a $500 civil penalty imposed by the Transportation Security Administration for interfering with airport screeners that day.

A three-member appeals panel, meeting in Portland this week, agreed to review Brennan's petition without hearing oral arguments.

About 5:30 p.m. on April 17, 2012, Brennan opted out of the advanced image electronic body scan as he arrived at the security checkpoint at Portland International Airport for a flight to San Jose. Instead, he offered to submit to a manual pat-down.

He removed his shoes, belt, sweater and jacket and placed them in a tub for X-ray screening while a TSA officer took him aside.

As a TSA supervisor with gloves patted him down, Brennan narrated the actions, noting, for example, "He's now touching my collar. He's now touching my right arm,'' according to court records. Once done, the officer told Brennan that he was testing his gloves in a machine to look for any trace of explosives. The machine's alarm sounded, signaling a positive result for nitrates. The officer told Brennan that he'd require additional screening.

"I guess I have to show you I'm not hiding anything,'' Brennan said, and stripped off all his clothes.

"What Brennan did was to doff his clothing, as an act of protest, to demonstrate the absurdity of that suspicion and the entire process leading up to it and to quickly to prove he was not carrying any explosives,'' his attorney, Michael Rose, wrote in the petition to the Appeals Court.

TSA then closed all of the screening lanes at the A, B and C gate checkpoint and ordered that Brennan be surrounded by a wall of bins to cover up his nudity. He remained nude in the airport for about three minutes before Port of Portland police arrived, arrested him and seized his clothing and property.

Brennan was prosecuted for indecent exposure and acquitted in 2012 after a Multnomah County judge ruled that his nudity was protected political expression.

The TSA filed a separate civil complaint, contending Brennan violated its security regulations by interfering with screening workers at the airport.

Brennan's decision to strip prevented officers from doing a secondary search, TSA officials said. The officers asked him at least three times to put his clothes back on and he refused, according to the federal agency. The officers don't search nude people, according to lawyers for the TSA.

Brennan's nudity also caused an "undue distraction'' to other officers and created "security vulnerability'' that led to the checkpoint closure, TSA officials argued.

TSA supervisor Jonathan David explained during a hearing that the distraction might allow someone to "try to slip through or introduce a prohibited item into the secure area.'' He also wanted to hide Brennan's nudity from children who were present. More than 20 TSA officers responded to help shield Brennan, according to court documents.

"Neither the fact that nudity is legal under Oregon state law in certain contexts, nor the fact that Brennan's act of stripping may have revealed that he was not carrying a bomb on his body, diminishes the magnitude of Brennan's interference with the TSA screening,'' wrote William Havemann, an attorney from the U.S. Department of Justice, on behalf of the TSA and Department of Homeland Security.

Brennan said he wasn't impeding a search but helping TSA officers by removing his clothes.

The remaining step was to screen the clothes, which stayed in a heap on the floor until police removed them. Brennan's decision to disrobe "may have offended the tender sensibilities'' of TSA officers, but they were the ones who decided to shut down the checkpoint, Brennan's lawyer said.

"The fact that the TSA officers acted like ants in an ant hill that got kicked over, that was not his intention,'' Rose said.

The agency's regulation on "interfering'' with screeners is vague and too broad, Brennan and Rose argued. The First Amendment also protects Brennan's act of free speech, they said.

"A common understanding of the term 'interfere with' would not have classified Brennan's conduct of removing his clothes and leaving them off as interference with anyone's screening duties,'' Rose wrote. "Rather, a reasonable understanding of the circumstance might lead one to believe that Brennan was actually facilitating the screening process ... Disrobing seemed the perfect way of both expressing his protest and confirming his innocence.''

While the TSA proposed a $1,000 sanction against Brennan, he appealed to an administrative law judge. The judge in 2014 supported the violation but imposed a lower fine of $500, citing Brennan's loss of his computer software consulting job as a mitigating factor. Brennan now is looking for work in web content management systems, his lawyer said.

One thing is not in dispute: TSA officers found no explosives on Brennan that day.

The TSA has offered no explanation for the positive reading for nitrates, but Brennan's lawyer did: "Perhaps it was plant food residue, perhaps it was a machine-generated false-positive or perhaps, this being Portland, it was bacon."

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian