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Government Not Immune From Lawsuits Over Airport Screenings

Woman at airport security check getting searched
By Joseph Fawbush, Esq. on September 13, 2019 9:39 AM

Invasive searches at the airport are not a new complaint. Back when the TSA first started doing full-body scans and pat-downs, they were fodder for comedians everywhere. Flying is not particularly fun to begin with, and security checks can feel invasive. While no one likes these security checks, in some cases passengers have truly felt that Transportation Security Administration officers have violated their rights.

Such was the case with Nadine Pellegrino, who alleged that transportation security officers (TSOs) damaged her belongings in a rough search, and then lied about her behavior, resulting in several criminal charges against her. The charges were dropped after the TSA failed to provide video surveillance, and Pellegrino sued for, among other things, intentional torts under the Tort Claims Act. Under the TCA, sovereign immunity does not apply to intentional torts committed during searches by an investigative or law enforcement officer.

However, Pellegrino’s claims of false arrest, false imprisonment and malicious prosecution under the TCA were dismissed in summary judgment. The district court found that TSOs are not “empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law.” Instead, they mainly conducted routine checks.

Third Circuit Reverses Panel

The Third Circuit Court of Appeals recently reheard the issue en banc. In the decision, the 9-4 majority held that TSOs are investigative or law enforcement officers for the purposes of the TCA and that airport screenings amount to Terry searches. Nor is there consent for a search, which the Department of Justice argued, since passengers cannot fly unless they submit to a screening. 

While courts have distinguished between federal criminal and administrative searches, including the Third Circuit, here the majority found that there were criminal connotations to phrases like “execute searches” and “seize evidence.” Further, the court noted that the FBI, DEA and ATF are all administrative agencies of the federal government, and all are covered by the exception to sovereign immunity at issue. While some federal agency employees do not conduct Terry searches, such as administrative searches involving the inspection of real property, here the majority found that the ability for the TSA to arrest, search and seize evidence made it fall within the scope of 28 U.S.C. § 2680(h).

Majority Addresses Consequences

The majority also took the time to address potential liability issues this could raise. It noted that only one in 100,000 passengers filed a complaint about a TSO, and only 200 complaints out of a potential 700 million in 2017 would fall under this exception. The majority also made sure to note more than once that not all administrative searches will fall under this exclusion from sovereign immunity.

Still, the dissenting justices worried about what it perceived to be the majority’s overly broad interpretation of the statute, which could conceivably encompass other administrative searches.

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