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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Filed Under: 1st amendment, 4th amendment, bivens, charles kieser, civil rights, first amendment, fourth amendment, roger vanderklok, tsa