Jan 30 2015

You shouldn’t be arrested just because the TSA calls the cops on you

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.

8 thoughts on “You shouldn’t be arrested just because the TSA calls the cops on you

  1. The financial settlement of $25000 is a joke. It should be at the minimum that amount times 9 (for the years it took this to run through the system).

  2. You are better off sending a copy of the TSA declaration to your local law enforcement agencies by certified mail. This puts them on notice that the TSA cannot arrest anyone and that the police have to conduct an independent investigation of any criminal activity.

  3. If TSA calls the cops on you, you are going to jail. Here’s why:

    If a TSA officer tells you to stay put, and that police have been called, you are under arrest – citizen’s arrest. That is why TSA asks for the “assistance” of police, or makes a “LEO referral”: it is asking the police to take you into their custody. When the policeman comes, he will immediately put you in cuffs, no questions asked. He is not arresting you! You are already in custody! The officer is accepting the arrest and processing the prisoner (you!) on behalf of the private person – the TSA officer.

    Nor does the police officer have any choice in the matter. In some states, it is a felony for the policeman to refuse to accept into his custody the person of someone who has been placed under citizen’s arrest. Thus the assertion by the 3rd Circuit court 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.” is simply not true. They must take the person into custody. (Note the court said “take into custody” not “arrest”) They have no “independent discretion.”

    Of course, TSA knows all of this.(They have very good lawyers). They also know they can’t arrest you unless you have committed (or are alleged to have committed) a “breach of the peace”. So they will try to provoke you into raising your voice, using foul language, or assault/battery on a TSA officer. If that fails, they can simply lie, and make video/audio evidence “disappear”, or claim it is SSI. BTW, TSA is prohibited by statute from lying to congress, but there is nothing in the law prohibiting them from lying to the courts.

    As for TSA’s “declaration”, do not allow yourself to be misled. TSA may not have “direct authority” over LEO’s, but it has sufficient knowledge of the law and legal procedures compared to you as to have practical authority over them. While there may be no TSA “policy” that requires the police officer to arrest a passenger refered to them, there does not need to be. Existing state law makes such a policy unnecessary and redundant.

    So what to do? If you obey a TSA command to wait for police, you will go to jail – and the experience will cost you several thousand dollars in legal fees. Years latter you might win – or lose, and get hit by a civil penalty assessed by the TSA. So talk to your lawyer now as to what you should do. Carry his business card. And be careful.

    Just remember, it can happen to you. These TSA officers, like the police, have quottas to fill, and are under pressure to fill them.

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  6. About handcuffing: There was an old English case saying that handcuffing is unlawful unless the arrestee has shown some tendency toward violence or escape. See Weisman, A Treatise on Arrest and False Imprisonment.
    I’m told the police have an OSHA rule that any arrestee being transported must be handcuffed during transport. I can see that an OSHA rule could be binding on the officers, on pain of losing their jobs for example. I cannot see how it could be binding on the arrestee, as OSHA is not Congress and we have a principle of separation of powers.
    What if an arrestee says to the handcuffer “You’re under arrest for assault and battery” ?

  7. But, when a passenger called the cops (MWAA Dulles airport police India Mitchell and Paul Solo) and the passenger finally *arrested the now ex-TSA screener (Michael Polson) for felony sexual battery per Virginia crime statutes*, the officers violated federal law and refused to accept custody of the suspect.

    The guy isn’t giving up. It seems like he’s poised to change national law re: TSA searches:

    It’s all in the police report and voluminous case file, excerpts at:

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