Court Gives TSA Screeners Immunity From Abuse Lawsuits

A federal appeals court just made it more difficult for travelers to sue over claims they were mistreated by a Transportation Security Administration employee at an airport checkpoint.

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Zach Wichter
, New York Times

A federal appeals court just made it more difficult for travelers to sue over claims they were mistreated by a Transportation Security Administration employee at an airport checkpoint.

The 3rd U.S. Circuit Court of Appeals ruled Wednesday that TSA agents are administrative employees of the federal government and not law enforcement officers. They are therefore immune from being sued for misconduct in civil cases.

“For most people,” the court said in its 2-1 ruling, “TSA screenings are an unavoidable feature of flying, and they may involve thorough searches of not only the belongings of passengers but also their physical persons.” But the court added that while it was “sympathetic” to travelers’ concerns about aggressive or overzealous screeners, Congress had limited liability to law enforcement officers. TSA agents, the majority said, “do not meet that definition.”

In his dissent, Judge Thomas Ambro argued that by equating “TSA searches to routine administrative inspections, my colleagues preclude victims of TSA abuses from obtaining any meaningful remedy.”

The ruling does not mean that TSA agents are totally above the law.

“This doesn’t protect these agents from criminal liability, for example, but it does give them immunity from being sued by people who feel they’ve been treated unfairly,” said Wendy Patrick, a lawyer who has handled cases involving assault and battery and is a lecturer at San Diego State University.

TSA screeners could still face disciplinary action within the agency, Patrick said. “There’s nothing about this court ruling that would preclude a passenger from filing a complaint,” she said. “This ruling doesn’t talk about whether TSA agents can be disciplined by their agency.”

The TSA declined a request for comment.

Legal advocates said in interviews they worried they would have a harder time holding the TSA and its agents accountable.

“This decision highlights a gap in federal law that prevents travelers from holding federal employees like these TSA officers accountable for abuses,” said Hugh Handeyside, a senior staff attorney with the American Civil Liberty Union’s National Security Project. “It makes no sense to give thousands of TSA screeners a free pass for intentional misconduct.”

Handeyside added, “Courts have made it increasingly difficult for individuals to sue federal officers, including TSA screeners, for constitutional violations.” Ultimately, he said, he hopes to see Congress pass legislation that outlines the bounds of TSA authority.

While the ruling technically applies only to TSA agents who work in Pennsylvania, New Jersey and Delaware, legal experts said it could be interpreted more broadly or set a precedent for other courts to give screeners across the country similar immunity.

“We probably haven’t seen the end of litigation surrounding this issue,” Patrick said. “Sadly, the problems that arise between TSA and passengers aren’t going to go away any time soon.”

The court’s ruling stemmed from an incident in Philadelphia in 2006 when TSA agents pulled aside Nadine Pellegrino Walden, then 57, for a secondary screening at Philadelphia International Airport. She said Thursday that she believed she had been targeted because of her age and her sex. The agents alleged she had struck them with her suitcases as she left the screening room.

Pellegrino Walden said Philadelphia police officers had arrested her and taken her to a police station, where she was held for 18 hours before posting bail.

She was acquitted in the criminal case, but she sued the agency on false-arrest and other claims. As the two cases wound their way through the courts, Pellegrino Walden said, the TSA acknowledged it had destroyed the video of her screening.

She is considering whether to appeal the appellate court’s decision.

Patrick said that statutorily, TSA agents are not officers of the law.

“They’re often looked at as if they were law enforcement,” she said. “This ruling reminds us and reminds a lot of travelers that they’re not, and they’re not treated as law enforcement by the government.”

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