In the final episode of a legal saga we’ve been following for the last five years, Philadelphia police have agreed to pay $25,000 to a college student who was arrested after TSA checkpoint staff at the airport called in the police because he was carrying a a set of Arabic-English flash cards and a book critical of US foreign policy, “entitled, “Rogue Nation: American Unilateralism and the Failure of Good Intentions.”
In addition, as part of the settlement agreement with Nick George and the police (who had made a counter-claim the TSA for telling them to arrest Mr. George), the TSA has issued a fascinating official declaration that it has no authority to order anyone arrested and that police are not required to take any action on TSA “referrals”.
The TSA can (and sometimes does, as in the ongoing case of “Naked American Hero” John Brennan) initiate its own administrative procedures to fine you for whatever it defines as “interfering” with “screening”. But the latest TSA declaration confirms that TSA staff (much less TSA contractors at airports such as SFO) are not law enforcement officers, have no power to arrest anyone (except at their own risk, as a citizen’s arrest), and cannot legally order anyone arrested. As we have been saying for years, all they can do is call the local police. Once the police arrive, they can only detain or arrest you if they — the police, not the TSA — have a lawful basis for doing so. “The TSA asked us to hold you or take you away” is not sufficient.
A federal District Court judge initially rejected the TSA’s claim of “qualified immunity”, but that decision was reversed in late 2013, as we reported at the time, by the Court of Appeals for the 3rd Circuit, against both common sense and an earlier ruling by the 4th Circuit.
In another case of retaliation for the exercise of 1st Amendment rights as a TSA checkpoint, the 4th Circuit had found that, “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested.” But the 3rd Circuit begged to differ, finding that, “it seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody.”
(This isn’t the first time DHS personnel have drawn improper adverse content-based inferences from travelers’ reading habits. John Gilmore was detained and subjected to “secondary screening” and notes made in his permanent DHS file (see slide 32) in 2007 because he was carrying a book entitled, “Drugs and Your Rights.”)
The decision by the 3rd Circuit left alive Mr. George’s claims against the police, and the police counter-claim against the TSA. The settlement dismisses those remaining claims in exchange for a $25,000 payment by the police to Mr. George, an agreement to re-educate the Philadelphia airport police about their duty not to delegate their authority to decide who to detain or arrest to the TSA, and the release of the TSA declaration.
We’re disappointed that the settlement leaves the ACLU unreimbursed for its costs of defending Mr. George’s rights, and that the TSA personnel got off scot free. But if there’s a silver lining in the settlement, it’s the TSA declaration, which may make it harder for local police to claim ignorance of the law or immunity from liability when they arrest people on the say-so of the TSA or on the basis of a TSA “referral”.
If you think there’s a chance that the TSA might call the cops on you — and as Mr. George’s experience shows, the TSA could call the cops on anyone, for any reason or no reason — you might want to consider carrying a copy of this declaration to show the police when they show up at checkpoint. And remember that you have the same rights in this setting as in any other encounter with police, including the right to remain silent.