TSA checkpoint staff often act as though they were above the law. But are they really?

Sadly, they often are, at least in the opinion of some Federal judges.

The 3rd Circuit Court of Appeals recent decision in Pellegrino v. TSA , in combination with its decision last year in Vanderklok v. TSA, mean that — at least for now, and at least in the 3rd Circuit — no civil recourse or remedy is available through the Federal courts against checkpoint staff who deliberately assault travelers, lie about their own actions and those of travellers, and make knowingly and deliberately false complaints to police in order to get travelers wrongly arrested.

The two judges in the majority on the three-judge panel that upheld the dismissal of Nadine Pellegrino’s complaint  explicitly acknowledged the implications of their decision:

We recognize that our holding here, combined with our decision in Vanderklok, means that individuals harmed by the intentional torts of TSOs will have very limited legal redress. And we are sympathetic to the concerns this may raise as a matter of policy, particularly given the nature and frequency of TSOs’ contact with the flying public. For most people, TSA screenings are an unavoidable feature of flying, 49 U.S.C. §44901(a), and they may involve thorough searches of not only the belongings of passengers but also their physical persons…. For these reasons, Congress may well see fit to …  legislate recourse for passengers who seek to assert intentional tort claims against TSOs. But such policy judgments, particularly as they relate to sovereign immunity and the public fisc, fall squarely in the realm of the legislative branch.

The dissenting member of the panel (the dissent starts at p. 54 of the slip opinion) characterized the decision more bluntly:

My colleagues[‘]…  decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO [Transportation Security “Officer”] assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them.

The details of the opinion dismissing Ms. Pellegrino’s complaint might be described charitably as arcane, and uncharitably as twisted.

In general, “sovereign immunity” (a vestige of the monarchist idea that a king selected by divine right can do no wrong) precludes civil lawsuits for damages against the Federal government or its agents, with limited exceptions.

One of those exceptions to general sovereign immunity, the Federal Tort Claims Act (FTCA), waives sovereign immunity and allows lawsuits against the government  for “negligent or wrongful acts” committed by Federal employees or agents in the course of their official duties. (Whether or when assaults are committed within the scope of Federal agents’ official duties, including those of TSA staff, is a separate question.)

An exception to this exception to sovereign immunity excludes “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”

But an exception to the exception to the exception allows some such lawsuits against “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”

In dismissing Ms. Pellegrino’s case against the TSA and its checkpoint staff, the majority of the 3rd Circuit panel conceded that the essential duty of TSOs is to search travelers. But they relied on a tortured analysis of other sources to find that these aren’t the searches Congress was referring to in this provision of the FTCA, and that “Transportation Security Officers” aren’t the officers Congress intended to be subject to this provision.

We think this decision is wrong as a matter of law. It’s also based on false factual assumptions by the appellate judges, who claim that TSOs don’t conduct searches for general law enforcement purposes, when in fact they do so routinely. We hope that reconsidered, or reviewed en banc by all the judges of the 3rd Circuit, and reversed.

Courts are generally reluctant to countenance a “wrong without a remedy.” In Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court recognized a private right of action for certain wrongful actions of Federal agents for which no other civil recourse is available. But last year the 3rd Circuit decided not to allow a “Bivens” cause of action against TSA checkpoint staff.

There are now splits between some of the district courts that have addressed these issues as to whether FTCA and/or Bivens claims (or neither) are allowed against violent, malicious, or deceitful TSOs. The liability of TSA contractors, such as those at SFO, who conduct searches but aren’t Federal employees, raises additional questions.

But the state of the law giving the TSA and its staff impunity in the 3rd Circuit and other circuits that adopt its reasoning is unconscionable. Either the Supreme Court or Congress needs to act to bring the TSA within the rule of law.