A panel of the 8th Circuit Court of Appeals decided today, over a dissent, that TSA checkpoint staff at airports (“Transportation Security Officers”) are “officer[s] of the United States … empowered by law to execute searches… for violations of Federal law”, making TSOs liable for damages if they commit assault, battery, or certain other torts against travelers.

With today’s decision in Iverson v. TSA the 8th Circuit joins the 3rd Circuit (en banc) in what is now a 2-1 split with the 11th Circuit, which ruled in 2014 that TSOs, despite their title and the fact that their primary job is to carry out searches, are not “officer[s] of the United States … empowered by law to execute searches… for violations of Federal law” and thus are completely immune from liability for even intentional assaults on travelers.

Most people unfamiliar with the law assume that the government is generally liable for damages if its agents attack innocent citizens. While the law is complex, the general principle is just the reverse: The US government generally enjoys “sovereign immunity” — a despicably undemocratic vestige of the idea that the king is above the law — and private individuals can sue the government only with the government’s permission.

There are exceptions to this principle, in the form of laws that “waive sovereign immunity” for certain offenses, as well as exceptions to the exceptions. The dispute with respect to liability or impunity for violent or negligent TSOs revolves around the interpretation of the language in Federal law defining one of those exceptions to an exception.

According to today’s decision by the majority of the 8th Circuit panel:

In this case, Brian Iverson went through security at the Minneapolis-St. Paul airport. Because of a prior injury, Iverson walked with the aid of crutches. At the security checkpoint, TSOs performed a pat-down search. During that search, Iverson was allowed to place his hands on his crutches but had to stand on his own power. Iverson alleges that a TSO pulled him forward and then abruptly let go, causing Iverson to fall. The fall injured Iverson.

Iverson filed an administrative claim, which the TSA denied. He then filed this suit, asserting battery and negligence claims. The government moved to dismiss, arguing that the FTCA’s waiver of sovereign immunity does not cover intentional torts, such as battery. It also asserted that the FTCA bars claims that arise out of an intentional tort, such as Iverson’s negligence claim. Iverson argued that TSOs are investigative or law enforcement officers under the proviso, and thus they are not immune from suit.

The TSA tried to quibble with almost every word of the definition of “officer[s] of the United States … empowered by law to execute searches… for violations of Federal law”. But after parsing the text of the law, the 8th Circuit panel concluded — correctly, we think — that TSOs fit this definition, and can be sued for assault or battery among certain other torts.

Iverson’s claims against the TSA will now go back to the District Court in Minnesota for trial.

We think the 3rd and 8th Circuits  are correct, and the 11th Circuit is wrong. The language of the law is clear. Beyond the argument over the language of the law, there’s a principal at stake: TSOs execute more searches than any other Federal officers, and should be accountable for deliberate or negligent damage they do to travelers.