Last December, we attended and reported on oral argument before the 9th Circuit Court of Appeals in a case in which the Transportation Security Administration (TSA) argued that TSA checkpoint staff have absolute immunity from lawsuits for assault, even sexual assault or rape, committed against travelers they are “screening”.

We’re pleased to report that today the 9th Circuit panel of judges rejected the TSA’s claim of impunity. The three judges found unanimously that the Federal Tort Clams Act (FTCA) allows lawsuits against the TSA for damages caused by checkpoint staff who assault travelers. The 9th Circuit thus joins every other Circuit Court of Appeals (the 3rd, 4th, and 8th) to have addressed this issue in a published opinion.

The case decided today by the 9th Circuit will now return to the U.S. District Court in Las Vegas for much-belated consideration of the claim against the TSA and its officers. The precedent set by today’s decision will apply throughout the 9th Circuit, the largest of the Federal judicial circuits, including all of the states on the West Coast.

Kudos to Jonathan Corbett, Esq., who has represented the plaintiffs in each of these cases.  Coals for Christmas to the TSA for continuing to argue for impunity for its staff to one Circuit Court after another, despite the growing weight of precedent against the agency and, perhaps more importantly, the moral repugnance of arguing that any agents of the government should be entitled to assault or rape members of the public with impunity.

At the invitation  of the U.N. Office of the High Commissioner for Human Rights (OHCHR), the Identity Project has submitted our input for a forthcoming report by the U.N. Secretary-General to the General Assembly on “The Human Rights of Migrants”.

Our previous submissions on this issue (2014, 2015) have been cited favorably in reports and recommendations of the OHCHR. But as we note in our latest submission to the OHCHR, the rights of migrants, especially asylum seekers, continue to be violated:

The pattern of violations of the rights of migrants, particularly asylum seekers, by states and common carriers (the latter often both encouraged and given de facto impunity by states) discussed in our our previous submissions to the OHCHR has continued and has become more pervasive and globally normalized.

As we discussed in our previous submissions to the OHCHR, the right to leave any country is routinely and systematically violated through (1) requirements for identity credentials or other documents or information as a condition of travel by common carrier, without respect for the right to leave any country and to return to the country of one’s citizenship regardless of what, if any, credentials or documents one possesses, (2) requirements for “pre-screening” and approval by destination states of common carrier passengers, prior to departure from origin states, that amount to de facto foreign-imposed exit visa requirements, (3) sanctions imposed by states on common carriers to induce carriers not to transport certain passengers on vessels departing from origin states, on the basis of necessarily unreliable predictions of admissibility to, or asylum in, destination states, and (4) failure by states to enforce the duties of common carriers (pursuant to common carrier laws and aviation treaties) to transport all would-be passengers, including asylum seekers, regardless of their legal status or possession of documents.

All of these actions involve the assertion of extraterritorial authority by a State X over individuals seeking to depart from the territory of a State Y, on the basis of potential inadmissibility of those individuals to State X, if and when they were to arrive in State X.

These are all, essentially, attempts to conflate exit, entry, and movement, and to convert the requirements established by State X for entry to State X into extraterritorial requirements for exit from State Y and for travel between State Y and State X, including travel by common carrier through international airspace or international waters.

There are (at least) three reasons why any such assertion of extraterritorial authority is fundamentally contrary to international law, including human rights law:

First, the right of State X to control entry to its territory does not imply any right to control exit from State Y or movement between State Y and State X. With respect to international air travel, Article 13 of the Chicago Convention on Civil Aviation provides that entry requirements of a state party apply only “upon entrance into or departure from, or while within the territory of that State”. Extraterritorial authority by a destination state over departure from other states or movement through international airspace or waters would be fundamentally contrary to the freedom of navigation by air and sea.

Second, the right to leave any country, as recognized by Article 12, Paragraph 2 of the International Covenant on Civil and Political Rights, is not contingent on admissibility to any other country. If a claim for asylum is denied, an asylum seeker may be deported, subject to the prohibition on refoulement. But the possibility that they might be denied admission or have their claim for asylum rejected on arrival is not a lawful basis for denial of their right to leave any other country, including by common carrier.

Third, because eligibility for asylum can only be determined after an asylum seeker arrives in a destination country, it is per se impossible for anyone – even government authorities, much less common carrier staff – to determine prior to departure from a country of origin whether an asylum seeker will be found eligible for asylum if and when they reach a particular destination country and apply for asylum. Any attempt to determine eligibility for asylum prior to departure from a country where an individual is in fear of persecution is necessarily premature and unreliable, and must be rejected as categorically impermissible and a violation of the right to seek asylum on arrival.

The right to leave any country and the right to travel by common carrier must be recognized as essential to the human rights of asylum seekers, including their right to life.

Today there is no practical, affordable, or safe alternative to air travel as a way to leave many countries. Denial of access to travel by common carrier amounts to denial of the right to leave the country and of the possibility to seek asylum anywhere else.

Restrictions on the right to leave any country, including restrictions on departure by common carrier, can endanger the lives of persecuted individuals by trapping them in situations of persecution or by forcing them to resort to irregular and dangerous means of transport as the only way to flee a country where they are suffering persecution.

Restrictions on travel by common carrier force asylum seekers – desperate to escape persecution – to risk their lives to travel by irregular means. Many of them die.

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people” or walking across mountains and deserts, and some of them die, solely because airlines or other common carriers improperly refuse to sell them tickets or deny them boarding.

Many, perhaps most, deaths of asylum seekers in transit are directly attributable to “carrier sanctions” that incentivize common carriers to deny passage to asylum seekers.

Carrier sanctions kill, and they must be strongly and unequivocally condemned.

[Full submission of the Identity Project to the OHCHR, May 12, 2023]

We look forward to the forthcoming report and to the discussion in the General Assembly.

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.

Undeterred by the manifest unfairness of the US government’s current no-fly list, some airlines and their allies are apparently renewing a campaign they began last year to get Congress to create yet another extrajudicial procedure by which the Transportation Security Administration (TSA) could put even more people on the US no-fly list.

Seriously? Can anyone really think that the way to make the current bloated and bigoted no-fly list more fair is to add even more names to it? That what the TSA needs is more authority to impose arbitrary and judicially unreviewable sanctions on disfavored members of the traveling public? That the branch of the government best qualified to exercise the power to make decisions that restrict people’s rights and in some cases would cost them their livelihood, perhaps for life, is the TSA?

Once a no-fly list exists, it’s almost inevitable that some people will see it as a one-stop solution to every problem, and will push to expand it by adding new rules to the no-fly blacklisting algorithm. But this is exactly the wrong way to go. If a bill to protect air travelers is going to be reintroduced and considered in Congress, it should be the Freedom to Travel Act.

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