A federal appeals court ruled travelers can sue Transportation Security Administration (TSA) officers for “abusive conduct,” stripping the controversial agency of the government immunity that has protected it thus far.
The 3rd US Circuit Court of Appeals in Philadelphia declared TSA screeners act as “investigative or law enforcement officers” when searching passengers, meaning they can be subject to civil claims for intentional wrongdoing under the Federal Tort Claims Act. The decision reverses a controversial 2018 ruling by a three-judge panel from the same court that effectively gave TSA officers immunity under the law.
The “intimate physical nature” of the screenings classifies them as a law enforcement act, the court ruled in a 9-4 decision on Friday, meaning the government’s immunity from lawsuits does not apply in cases where TSA agents abuse their power.
“If you think you are a victim of intentional misconduct by TSA agents, you can now have your day in court,” exulted lawyer Paul Thompson. His client, Nadine Pellegrino, sued the TSA over a 2006 incident in which she was imprisoned for 18 hours and charged with crimes including assault and making terroristic threats, after objecting to an especially invasive screening as she attempted to board a US Airways flight at Philadelphia International Airport.
While she was acquitted of the charges two years later, Pellegrino and her husband sued the TSA for false arrest, false imprisonment, and malicious prosecution – only to be told last year that they were not legally permitted to sue the TSA. Now, at least, the case can continue.
Dissenting judges feared the decision would open a Pandora’s box of lawsuits. But Circuit Judge Thomas Ambro noted that in 2015, less than 200 of the 700 million passengers screened filed complaints that could potentially have led to waivers of government immunity for the TSA.
The TSA has developed quite a reputation in the 18 years of its existence, with horror stories surfacing regularly in the media about invasive searches of children, veterans, and the elderly. In a recent example caught on video, triple-amputee US Air Force veteran Brian Kolfage (of ‘We Build the Wall’ fame) was practically cavity-searched at the gate by an overzealous TSA agent.
Watch this disgusting treatment of my friend @BrianKolfage a decorated war hero, purple heart recipient and triple amputee from war injuries. There is NO excuse for this! @DHSgov should explain how this makes us safe! I hope @realDonaldTrump sees this and demands answers. https://t.co/qlXbqOJTys
— Gov. Mike Huckabee (@GovMikeHuckabee) February 10, 2019
This happens every time I fly… my kids are always asking “why daddy has to have that done?”
— Brian Kolfage (@BrianKolfage) February 10, 2019
The judges also rejected the government’s argument that airport screening is different from a search because airline passengers’ consent to it. They said it’s indeed a search — noting that screeners can explore a passenger’s entire body including sensitive areas.
A Florida woman, Nadine Pellegrino, sued over a search at the Philadelphia airport in 2006, saying screeners damaged her property and falsely claimed she hit them with a bag. She was arrested but found not guilty at trial.
Pellegrino and her husband asked the TSA for $951,200 in damages. When their claim was rejected, they sued the TSA and three TSA employees.
The court said the overwhelming majority of TSA screeners do vital security work in a professional way and often without appreciation. But, the judges said, if the lower-court rulings stand it would leave travelers with no remedy even if they are assaulted, wrongfully detained or hit with fabricated charges.
The four-judge minority said the screeners should get immunity from lawsuits partly because they conduct “routine, suspicionless searches” that are now standard at airports.
The Justice Department declined to comment when asked whether it plans to appeal to the U.S. Supreme Court.