Apr 05 2021

Can TSA checkpoints be used as a general law enforcement dragnet?

Airline travelers who were searched at Transportation Security Administration (TSA) checkpoint for cash and other items unrelated to any threat to aviation are entitled to their day in court, according to the first significant ruling by a Federal judge in Pittsburgh in a class action lawsuit filed a year ago.

The class action complaint in Brown v. TSA was brought by the Institute for Justice on behalf of all air travelers whose cash was seized at TSA checkpoints. It charges that searches at TSA checkpoints for “general law enforcement purposes” that aren’t limited to searches for weapons, explosives, and incendiaries that could pose a danger to aviation are (1) “ultra vires”,  that is, outside the scope of any authority granted by law to TSA checkpoint staff, and (2) unconstitutional as warrantless, unreasonable searches and seizures prohibited by the 4th Amendment.

The TSA and Drug Enforcement Administration (DEA) defendants tried to get the court to dismiss the complaint on such specious grounds as that the dozens of incidents of seizures of air travelers’ cash described in the complaint were merely “isolated incidents” unlikely to be repeated, and that a Federal law that has often frustrated judicial review of TSA actions, 49 U.S.C. § 46110, denies any Federal District Court jurisdiction to even consider such a complaint.

After review of initial recommendations by a Federal Magistrate, U.S. District Judge Marilyn Horan has denied most of the government’s motions to dismiss the class action complaint, allowing the case to move forward toward a decision on the merits.

As we noted when we first reported on the filing of this lawsuit, its importance extends well beyond the specific issues of searches and seizures of cash. This is one of two key pending lawsuits (along with one filed by Sai that’s pending in the 1st Circuit Court of Appeals with friend-of-the-court briefs due to be filed by the end of this week) challenging the TSA’s attempt to expand its checkpoints from limited special-purpose administrative searches for items posing a hazard to aviation to general law enforcement checkpoints like the “4th Amendment-free zones” at international borders and points of entry.

There have been, and continue to be, strong pressures from within the Department of Homeland Security and from other law enforcement agencies to use TSA checkpoints for an even wider range of general law enforcement purposes. That would create a new airport exception to the 4th Amendment, based on treating travel as presumptively grounds for suspicion (and thus subject to search and/or seizure) rather than the exercise of a right.

We are pleased to see this case go forward as an important test of the limits to the TSA’s authority, the meaning of the 4th Amendment, and the existence of a right to travel.

One thought on “Can TSA checkpoints be used as a general law enforcement dragnet?

  1. Pingback: More support for court challenge to TSA impunity – Papers, Please!

Leave a Reply

Your email address will not be published. Required fields are marked *