In a decision published today, the 4th Circuit Court of Appeals has joined the 3rd Circuit and the 8th Circuit in finding that staff of the Transportation Security Administration (TSA) who search travelers at airport checkpoints are liable for damages if they commit assault or battery in the course of performing their official “screening” duties.
This shouldn’t be a difficult or surprising decision, as a matter of either fairness or law. But despite the TSA’s complete lack of success in any published appellate decision on this question to date, the agency continues to argue — as it did in another case on the same issue pending in the 9th Circuit — that checkpoint staff should have absolute impunity, even if they rape travelers at checkpoints or in back rooms during “secondary” searches.
Jonathan Corbett, who has argued all of these cases on behalf of abused air travelers, says that, “I am ecstatic to open the courthouse doors for all injured by abusive feds [and] I am thrilled to bring my client closer to getting some justice for this brazen misconduct.”
We’re thrilled too at this common-sense ruling, and we hope the 9th Circuit will follow the lead of its sister circuits in its pending case.
The most common situation in which Federal agents lay their hands on innocent citizens is the TSA checkpoint at the airport. Checkpoint staff have far too much power, with far too much temptation and opportunity for abuse, to be allowed to grope travelers with impunity.
The 4th Circuit panel summarized the facts of the case it decided today as follows:
As all commercial air travelers must, plaintiff Erin Osmon passed through security at Asheville Regional Airport before a scheduled flight. A TSA screener told Osmon “the body scanner alarmed on her and that she would need to submit to a ‘groin search.’ ” JA 9. During the resulting interaction, Osmon alleges the screener forced her to spread her legs wider than necessary and fondled her genitals twice.
Osmon sued the federal government under the FTCA [Federal Tort Claims Act], alleging one count of battery.
A magistrate judge recommended dismissing Osmon’s suit for lack of subject matter jurisdiction in a detailed memorandum devoted solely to whether the FTCA waives sovereign immunity for the type of claim Osmon brought. The district court adopted the magistrate judge’s recommendation.
That District Court decision has now been reversed by the Court of Appeals, and the case will be remanded for Ms. Osmon to get a chance to prove her claims and obtain damages.