Ruling last week in a case brought by a man who was falsely arrested for displaying the text of the 4th Amendment to the Constitution written on his chest during a “secondary inspection” by the TSA at the  Richmond, VA, airport (RIC), the 4th Circuit Court of Appeals rejected an appeal seeking the dismissal of a Federal civil complaint against TSA, DHS, and airport officials, police, and checkpoint staff.

The ruling means that the claims for damages by U. of Cincinnati architecture student Aaron Tobey (Tobey v. Jones et al., originally filed as Tobey v. Napolitano et al.) will go back to the District Court to proceed toward a trial. (Mr. Tobey is represented by attorneys from the Rutherford Institute.)

Even the dissent from the 2-1 decision (containing such gems as, “[I]t is sometimes necessary to make small sacrifices to achieve greater gains or, as in this case, to avoid catastrophic loss”, a bizarre statement given the lack of any allegation that Mr. Tobey, any of his actions, or the words written on his chest posed any but a political “threat”) admitted that, “TSA screening agents are not natural objects of affection…. TSA agents… can and do make mistakes, and there is always the chance that imbuing subordinate officials with a bit of authority can make them tyrants in their spheres.”

In rejecting the TSA and police appeal, and allowing Mr. Tobey’s case to go forward, the majority of the Circuit Court panel made several key rulings upholding travelers’ 1st Amendment rights and continuing and extending a line of decisions upholding personal liability on the part of individuals responsible for illegal actions at checkpoints:

1. TSA or other checkpoint staff who call the police on a traveler can be held liable for that person’s false arrest, even when they didn’t (and couldn’t) “order” that the person be arrested: “As the Supreme Court explained, Section 1983 (and by association Bivens) anticipates that a government official will be ‘responsible for the natural consequences of his actions.’… A government official’s liability for causing an arrest is the same as for carrying it out….. It is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert…. The fact that Appellants do not have the power of arrest does not hurt Mr. Tobey, but helps him, as one can infer that Appellants [TSA staff] radioed RIC police to arrest Mr. Tobey as they could not do it themselves.”  This finding by the 4th Circuit deeply undermines the strategy the TSA has used to for evade liability for, or judicial review of, written and unwritten TSA policies that are enforced by local law enforcement officers, not directly by the TSA.
2. Freedom of speech is a right under the 1st Amendment, even inside TSA checkpoints. The checkpoint is no more a “Constitution-free zone” than is the entirety of the airport. This should go without saying (as, indeed, the 4th Circuit found, as discussed in item 3 below), but so far as we can tell, this is the first time that a Federal court has explicitly ruled on the issue of 1st Amendment rights and free speech inside a TSA checkpoint, rather than elsewhere in an airport, at the entrance to the checkpoint, etc.   The message on Mr. Tobey’s chest became visible when he took off his shirt during “secondary” screening, after he had clearly entered the checkpoint and given whatever “consent” that might imply. Even outside the 4th Circuit, this holding regarding 1st Amendment  rights inside checkpoints could be influential in other such cases including those of Phil Mocek and John Brennan.
3. Ignorance of the 1st Amendment by the TSA or police is no excuse. “Appellants argue that because there is no case on-point detailing what is a reasonable restriction on speech in an airport screening area, Mr. Tobey’s constitutional rights cannot be said to have been clearly established….  Given that peaceful, silent, nondisruptive protest is protected in a nonpublic forum, like an airport; that it is unequivocally clear that the government cannot effectuate an arrest for the display of a message of peaceful protest; and that Mr. Tobey’s arrest in this instance was allegedly not supported by probable cause — we find that Mr. Tobey’s rights at the time of his arrest were clearly established by decades-old precedent… Moreover, the unequivocal constitutional precedent provided Appellants with more than adequate notice that they cannot retaliate against Mr. Tobey for exercising his First Amendment rights. This is not an abstract principle but an irrefutable precept.”
4. Protest or other expressive conduct is not per se disruptive. “Appellants seem to think that removing clothing is per se disruptive. We beg to differ. Passengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations. It is just as reasonable that Mr. Tobey calmly taking off his t-shirt and sweatpants caused no disruption at all….  Mr. Tobey specifically alleges that he did not circumvent security measures nor did he disrupt the screening process. Mr. Tobey attempted to submit to the enhanced screening procedures. He never violated an express instruction of the Appellants. In a sense, Mr. Tobey aided in Appellants’ search for contraband by removing his t-shirt and sweatpants — at this point there were very few places he could have been hiding anything. Mr. Tobey was simply showing Appellants what they sought to see by using the AIT scanning machine. There is nothing before the Court at [this] phase that indicates Mr. Tobey removing his sweatpants and t-shirt caused any interference, disruption, or delay, in violation of any TSA regulation.”

The majority opinion of the 4th Circuit panel suggests that if Mr. Tobey’s actions had, as the defendants in his lawsuit now alleges, “disrupted” any “screening” activities, he could have been charged with civil violations of TSA regulations: “The relevant TSA regulations state that ‘no person may interfere with… [TSA] screening personnel in the performance of their duties,” 49 C.F.R. § 1540.109; and “[n]o person may… attempt to circumvent… any security system, measure, or procedure,” 49 C.F.R. § 1540.105. Based on the facts alleged in his complaint, Mr. Tobey violated neither of these regulations. Mr. Tobey was peaceful, cooperative, and polite — this is presumably why he was never cited for violating TSA regulations. The TSA regulations are not at issue here.”

It remains to be seen how this aspect of the 4th Circuit decision may influence TSA practices. In the past, the TSA has sometimes threatened to charge nonviolent, nondisruptive protesters with violations of these regulations. Rarely, however, has the TSA followed through on such threats, probably because they open the door to the one thing the TSA fears more than protest: judicial review by federal courts of TSA actions.

That could be tested shortly. John Brennan, who was acquitted in a criminal trial on trumped-up state and municipal charges after he took off all his clothes at the Portland, OR, airport (PDX), has been notified that the TSA is considering assessing civil penalties against him for violating TSA regulations.  He expects to receive notice shortly of a date for a hearing before a DHS administrative law judge in Portland.  We’ll provide more information about the charges against Mr. Brennan, and the hearing, as soon as we are able to do so.