“Naked American Hero” goes to court
John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon airport, will finally have his day in a Federal court more than three years later.
Mr. Brennan was (falsely) arrested by Portland city police, acting at the behest of the TSA checkpoint staff, on April 17, 2012. He was acquitted of criminal charges by a local judge, since nudity as a form of political expression has been held to be protected by Oregon’s state constitution.
But the TSA assessed a $500 administrative fine against Mr. Brennan for “interfering with screening”, notwithstanding both the Oregon court’s finding that his action was form of protected political expression and the fact that he never interfered with anyone at the TSA checkpoint. It was the TSA staff who chose not to search Mr. Brennan’s clothes after he took them off, not to complete his “screening” once they could see that he wasn’t carrying any weapons or explosives, and to shut down the entire checkpoint.
The TSA’s administrative decision to fine Mr. Brennan followed a kangaroo-court administrative hearing (held in a courtroom rented for the day from the US Bankruptcy Court), a decision by a so-called Administrative Law Judge (not actually a judge, but a DHS staff person rented from the US Coast Guard), and an administrative appeal to a TSA decision-maker designated by the head of the agency.
Throughout these administrative proceedings, the TSA and other DHS staff were forbidden to consider the Constitutionality or validity of the TSA’s regulations or actions. Only after jumping through three years of these hoops is Mr. Brennan entitled to have a real judge of a real court assess whether the TSA acted lawfully or had any authority to impose a fine for actions such as Mr. Brennan’s.
In an effort to frustrate even this belated judicial review, Congress requires that it be conducted by a Federal Circuit Court of Appeals, based on “deference” to the TSA and the TSA-supplied “administrative record” rather than an actual trial or any fact-finding by the Court of Appeals. (Our Freedom of Information Act request for the administrative record of the TSA’s proceedings with respect to Mr. Brennan is still pending and unanswered after almost two years.) But the Court of Appeals can now finally, at this stage, consider Constitutional and other objections to the legality of the TSA’s actions.
On November 14, 2014, Mr. Brennan filed a petition with the 9th Circuit Court of Appeals for that court to review the TSA’s order assessing a $500 fine against Mr. Brennan. The case in the 9th Circuit is John Brennan v. US DHS and TSA, docket number 14-73502. Mr. Brennan is represented in the 9th Circuit by Michael Rose of Portland, the same attorney who successfully defended Mr. Brennan against the state and local criminal charges.
On March 2, 2015, Mr. Brennan’s attorney filed his brief asking the Court of Appeals to void the TSA fine, making the arguments he wasn’t allowed to make in the TSA administrative proceedings regarding the unconstitutional vagueness and other defects in the TSA’s regulations and actions. Mr. Brennan’s brief was accompanied by excerpts from the TSA administrative record, although most of that record continues to be improperly withheld from disclosure by the TSA despite our FOIA request.
Following a written response from the DHS and TSA (the government has already asked for, and been granted, an extension of time), and a written reply from Mr. Brennan, the 9th Circuit will decide whether to schedule oral argument or make a decision solely on the basis of the written arguments.
Mr. Brennan is continuing to pay for his own legal representation. There’s more information here about how you can contribute to his legal defense and help spread the word about his case.
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