Most Americans are far likelier to be searched by an agent of the Transportation Security Administration than by an FBI agent. But according to a federal appeals court, if an FBI agent violates your rights you can file a lawsuit. If you're manhandled by a TSA employee you're out of luck.
By a 2-1 vote, the U.S. 3rd Circuit Court of Appeals in Philadelphia has ruled against Nadine Pellegrino, a business consultant from Boca Raton, Fla., who claimed that a search of her belongings at Philadelphia International Airport in 2006 was too rough and invasive. She was arrested and charged with assault after she clashed with TSA agents, but was found not guilty. She then filed a lawsuit against the TSA and the individual agents.
The appeals court's decision turned not on the truth or falsity of Pellegrino's allegations but on a question of how a law called the Federal Tort Claims Act should be interpreted.
Generally, the federal government is immune to lawsuits under the doctrine of "sovereign immunity." But the Federal Tort Claims Act creates various exceptions, including one allowing citizens to sue "investigative or law enforcement officers" for civil wrongs including false arrest, false imprisonment and malicious prosecution.
Writing for the majority, Judge Cheryl Ann Krause said that TSA agents didn't qualify because the searches they performed were "administrative." The judge suggested that if searches by TSA agents could give rise to lawsuits, so could other routine searches by government officials, such as those carried out by meat inspectors and employees of the Occupational Safety and Health Administration.
Yet Krause conceded that airport screenings are particularly invasive because they "may involve thorough searches of not only the belongings of passengers but also their physical persons _ searches that are even more rigorous and intimate for individuals who happen to be selected for physical pat-downs after passing through a metal detector or imaging scanner." She suggested that although current law didn't authorize lawsuits against TSA agents in her view, Congress could pass a law allowing them.
We disagree. The judge's cramped reading of the law seems to miss the point of what TSA agents do. And it denies recourse to people who are abused by them.
Most TSA agents do their jobs diligently and courteously. But those who take advantage of the sometimes intimate contact they have with the traveling public shouldn't be immune to legal sanctions. If the courts won't recognize that, Congress should step in.
