Judge John A. Gibney, Jr. of the US District Court for the Eastern District of Virginia has ruled that TSA checkpoint staff can be sued (and, potentially, held personally liable for damages) for stopping a traveler from recording video with his cellphone of them searching (“patting down”) his wife, and ordering him to delete the video.
The initial decision in the case of Dyer v. Smith is likely to be appealed to the Court of Appeals for the 4th Circuit. But Judge Gibney’s ruling is an important step toward holding the TSA accountable to the 1st Amendment (freedom of speech and of the press) and 4th Amendment (freedom from unreasonable search and seizure) to the US Constitution.
In particular, Judge Gibney not only (1) recognized that members of the public have a Constitutional right to film at TSA checkpoints, and not to have their recordings seized, but also (2) rejected the claim that this right was not “clearly established” and thus that TSA checkpoint staff should have “qualified immunity” from lawsuits, and (3) allowed the lawsuit against the TSA to go forward, under the so-called “Bivens doctrine” already recognized by courts in other contexts, even though there is no specific law (other than the Constitution itself, which ought to suffice) providing for lawsuits against TSA staff who violate travelers’ Constitutional rights.
We are particularly pleased that Judge Gibney recognized that the Constitutional right to film the TSA is “clearly established,” contrary to the court finding in 2015 in Phil Mocek’s lawsuit against TSA checkpoint staff and Albuquerque Police that, while Mr, Mocek’s rights had been violated, the right to film at TSA checkpoints was not (yet) clearly established — so Mr. Mocek was not entitled to any redress through the courts for the violation.
(Mr. Corbett is also, we are pleased to report, representing Sai in his challenge to the Constitutionality of 49 USC § 46110, the Federal law which establishes special and especially limited procedures and criteria for judicial review of “orders” issued by the TSA.)
As with Mr. Mocek, Mr. Dyer was able to recover the “deleted” video, although it’s not clear how important that may have been in deterring the TSA from making up stories about what happened, as the TSA and police did (unsuccessfully, in the face of video and audio evidence falsifying their official reports) with respect to Mr. Mocek.
It’s worth reading both Mr. Corbett’s brief in support of his client Mr. Dyer, and the amicus brief by Constitutional law professors Brandon Hasbrouck of Washington and Lee School of Law and Katherine Mims Crocker of William and Mary Law School (where Judge Gibney is also an adjunct professor). As friends of the court, these law professors note that “The logic of the single decision [the defendants] cite [Mocek v. Albuquerque] is quite strained.” Judge Gibney seems to have agreed.