Do You Need To Profitably Sue a TSA Agent?

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Recently
by Bill Rounds: The
Sweet Sound of Cash

 

 
 

As an attorney,
I help people legally vanish parts of their life from public view.
Of all the things you want to vanish from public view, the top on
your list is probably your genitals. There’s a reason they call
them privates. But the TSA wants to see and touch genitals whenever
they are in the mood. Here
are some ideas
to help protect the privacy of your junk.

The way security
thugs behave during the enhanced
pat-down techniques
can be damaging
physically
, emotionally
and psychologically
to their victims. There are several legal
strategies to combat this immorality, some of which are already
being implemented
, but it may be wise to simultaneously use
as many strategies as possible to combat this institutionalized
evil.

Principle
#1 — The Government Is Not A Cohesive Unit, Exploit That Fact

Ever seen those
movies where the FBI and the police get territorial about what they
each think is their “turf?” Every government official, agency, or
branch by its nature looks for the best way to exercise and increase
their own power. Many are like petty dictators seeking as much control
as they can wrestle away from any source. The framers of the US
Constitution
knew this very well and exploited this aspect of
human and government nature by creating three branches of government
whose competing ambitions are supposed to check
and balance
each other. The legal strategies of pursuing civil
and criminal actions against individual
TSA agents exploit this reality.

The TSA is
just one leaf of one branch of the government. Other agencies and
branches of the government get to exercise their own power, and
maybe even increase it, by exerting control over the TSA. A prosecutor
who can successfully prosecute a TSA agent for Sexual Assault gets
to exercise power over that agent and may grow in power because
the prosecutor (or her bosses) might get good PR for prosecuting
perverts.

Principle
#2 — The Ultimate Goal: Restore Liberty And Don’t Lose Money

The ultimate
goal is to protect the fundamental freedom
of movement
of all people, and to do it profitably. One of the
biggest obstacles to the freedom of movement is that travelers must
make the choice between dancing naked for the delight of security
or being groped. An excellent way to achieve both goals is using
legal means. Using illegal means is unlikely to restore any liberties,
and is unlikely to be profitable.

The law is
a business and lawyers are expensive. The right tactics need to
be carefully planned and executed under the right circumstances
so expenses (hopefully) do not exceed revenue. Suing TSA agents
in their individual capacity is, by itself,
less monetarily profitable than other strategies. But if success
is determined by eliminating threats to liberty combined with monetary
profit, it can be very successful.

Principle
#3 — Suing Individual TSA Officers Will Reduce Abuses Of Power:
A Companion To Other Strategies

In chess, you
don’t try and capture only the king. You plot many smaller
moves to capture any other pieces you can, including pawns. Many
are pursuing policy makers, entire agencies and large portions of
government, the queens and rooks.

The focus of
this strategy is to sue, or pursue criminal charges against, individual
officers in their "individual capacity" for their wrongful
actions. This is like taking the vulnerable, sacrificial pawns.
This will hopefully check the behavior of individual
TSA officers nationwide while we wait for the outcome of the larger
legal battles which are likely to continue for many years with uncertain
outcomes.

Tactic 1 —
Federal Criminal Prosecution

Prosecuting
individual agents for illegal behavior may indicate to other TSA
agents that they will be held responsible for their illegal actions
such as touching genitals, harassment and intimidation among others.
Holding them responsible for their actions will hopefully reduce
moral
hazard
and lead to fewer violations of law.

Many prosecutors
may choose not to prosecute a TSA agent for a variety of reasons,
but there may be some that will. A successful prosecution, by a
State Attorney General for example, will increase the rule of law
in their jurisdiction, helping the prosecutor achieve their goal.
Imagine if a TSA agent might be placed on the sex
offender registry
if they are overzealous in their job. Even
an unsuccessful prosecution, despite the news effects that may linger
in Google for years, may have a similar deterrent effect of eliminating
unlawful and evil behavior.

Criminal Prosecution
For Sexual Assault (18 USC Sections 2242 and 2246)

A person is
guilty of sexual assault if they:

1) Touch you
in any of the following places: genitalia, anus, breast, inner thigh,
or buttocks.

This touching
can be direct skin-to-skin contact, it can be through clothes or
gloves. Any part of the perpetrator’s body, such as the back of
the hand, or even an object, such as a broom handle, may be used
to touch a victim.

2) Have an
intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.

It is usually
impossible to know the intent of a person so it usually has to be
inferred from other facts. For example, if a TSA officer yells loudly
that you have opted out of the full body scanner which draws attention
of other passengers to you, this may indicate an intent to humiliate
or harass. This same intent may still exist while security is fondling
their victim.

Other indications
of intent might be making remarks, using exaggerated movements to
draw attention, uncomfortable eye contact, or any other actions
or words that might be understood as intent to abuse, humiliate,
harass, degrade, arouse or gratify.

Am I reading
this wrong, or does the phrase “or arouse or gratify” seem unclear?
It may mean that the person must have the intent to arouse or gratify
the sexual desire of any person. The statute, however, might be
read, and I think it is a more accurate reading, that there needs
to be no intent to arouse or gratify sexual desire, the arousal
or gratification just needs to occur. So if any onlooker, if the
TSA agent, or if the person being molested is sexually aroused in
the slightest degree, this element would also be met. It will be
up to a prosecutor to convince a judge of this interpretation.

3) Touch a
victim without the victim’s permission.

Permission
given under duress does not constitute consent. Threats of criminal
prosecution, fines
or civil lawsuits for refusal might constitute duress. Fear or intimidation
inspired by an authoritative demeanor, seeing badges, seeing guns
or tasers, being confronted by several people, or having to speak
to a supervisor may all be signs of duress.

If you feel
that you have had an encounter with TSA or other officers that rises
to the level of sexual assault as defined by law, you may want to
report the crime to the local FBI office, the local US Attorney’s
office, the State Attorney General or even the local District Attorney.
Indicate what crime you think was committed and lay out as many
of the facts surrounding the crime as possible.

Pursuing criminal
claims costs the victim no money and usually only a little time
in order to fill out reports, and act as a witness. There is probably
no direct monetary revenue available to compensate victims. The
victims may have peace of mind that their assaulter has been punished
and that assaults on others are less likely to occur although if
there is a prison sentence unfortunately this may increase the victim’s
tax burden. Oh the irony of the American justice system.

Tactic 2 —
State Criminal Prosecution

State prosecutors
are much farther removed on the government family tree from the
TSA than federal prosecutors. The power of the states is also supposed
to check and balance the power of the federal government where possible.
So, it is likely that state prosecutors will be more willing to
protect state citizens from perceived abuses of federal agents such
as Testicle Security Agents.

There are many
more state laws which may be implicated to protect you from this
kind of behavior. Criminal law is generally the domain of the states
so they generally have more robust options for prosecuting perpetrators.
Each state will vary greatly in what laws apply, if any, so you
should discuss potential crimes committed with a local lawyer, prosecutor
or police department.

To file charges
against an officer for illegal behavior, you should contact the
local police department where the incident occurred. Again, explain
in detail as many relevant facts as you can and indicate your desire
to press charges.

Tactic 3 —
Federal Civil Lawsuit

Federal agents
can be sued in federal civil court for wrongs they have committed.
Suing TSA agents in their “individual capacity” instead of in their
official capacity is much less common but has certain advantages.
To benefit from these advantages, avoid suing the TSA as an agency
or any other governmental body.

Deep Pockets
Aren’t The Only Profitable Targets Of Lawsuits

Most attorneys
like to get the most money possible for their clients so they prefer
to sue the larger agencies with "deeper pockets" that
can afford to pay larger judgments. But deep pockets means a much
larger and longer fight. If your objective is to end invasive searches
and to do it without losing money, it might be in your best interest
to fight shorter, less expensive legal battles. If an attorney is
going to take a case, they should be considering all factors that
best protect your legal rights.

Suing an agent
in their individual capacity means the TSA will probably make the
agent pay for their own legal defense out of their own shallower
pocket. This leads to a shorter, less expensive battle that might
be economically feasible even if the award will be fairly low. If
agents across the country are faced with the risk of having to pay
for their own legal defense, they may be more reasonable in their
conduct of airport enhanced pat-down techniques, increasing your
privacy and protecting your rights.

Short Decisive
Legal Battles For Lower Amounts Can Be Profitable

The most economically
efficient and shortest legal battle is if the TSA agent does not
even have enough money to hire an attorney to defend the suit, they
fail to answer the complaint, and a default judgment is entered.
The case will have been won for little more than the cost of the
filing fee ($350) and very little time invested.

You will likely
get paid the amount of the award as long as it is relatively within
the economic reach of the defendant. If they don’t pay voluntarily,
wage garnishment is an effective tool against a federal employee.

Even if the
TSA agent is able to answer the suit, litigation costs will probably
be very low because the defendant probably can’t afford OJ’s
dream team
of defense attorneys. If that is the case, you may
still be able to recover from the TSA agent at a profit.

Because the
monetary benefits may be lower when suing TSA agents in their individual
capacity, good experienced attorneys may need to be persuaded of
the publicity and potential for other similar cases to take your
case and give up taking other, more immediately lucrative cases.

Bail Out If
Costs Get Out Of Control

It is possible
that a "winning" case could cost more money to pursue
than the judgment is worth. That might happen if the TSA agent is
able to mount a good defense, or if the jury awards a very low amount
of damages.

If that appears
to be likely, a plaintiff may withdraw the lawsuit at any time without
further penalty. The agent will still have had to pay a few thousand
dollars out of their own pocket just to answer the complaint. If
TSA agents are exposed to the risk of having to pay a few thousand
dollars for every person that they mistreat, they might be less
willing to engage in wrongful behavior, which still accomplishes
one of your objectives.

Beware of counterclaims.
If you file a lawsuit against a TSA agent, they may counterclaim
against you for any number of things. Or, if you drop the lawsuit
or lose the lawsuit, they may attempt to sue you for malicious prosecution
or something like that. Never bring a frivolous claim and make sure
that the facts are strong enough to bring a legitimate claim. An
attorney will be able to help you determine this.

Direct Violation
of Constitutional Rights

The actions
of an overzealous agent may violate several provisions of the Constitution.
The Fourth Amendment or the Fifth Amendment, among others. A case
may be brought for direct violations of any Constitutional violation
that may apply. Discuss with an attorney the facts of your case
to see whether it is likely that a Constitutional violation took
place.

Civil Rights
Claim

The violation
of Constitutional rights also means that you might also have a civil
rights claim under 42
USC Section 1983
.

Constitutional
rights might be violated if an officer abuses their power or acts
under color of law in a manner that shocks the conscience or offends
human dignity. The due process rights protected by the 5th and 14th
Amendments mean that government actors cannot invade your right
to bodily integrity or privacy. Touching your genitals might shock
the conscience, offend human dignity and violate a constitutionally
protected right.

There are several
cases which have explored what could constitute this kind of violation.
There was a valid case in Haberthur
v. City of Raymore, Missouri
, where a police officer showed
up to a woman’s work and fondled her breasts, and in Reeve
v. Oliver
where a police officer rubbed the back of a woman
and stared at her chest. You might want to check out a few other
case like Harris
v. City of Pagedale
, Lillard
v. Shelby County Bd. of Educ.
; Sepulveda
v. Ramirez
; Cockrell
v. Pearl River Valley Water Supply District
, among others, to
get a better idea of what actions might give rise to a legitimate
claim.

Qualified
Immunity

What about
qualified immunity? Aren’t most government actors, like TSA agents,
exempt from taking full responsibility for their actions?

In many cases
yes, government officials are only subject to removal from their
position or some sort of sanction rather than being responsible
for their actions. But qualified immunity does not apply when the
actions are outside the scope of the reasonable duties of the officer.
The reasonable duties of an officer never include sexual assault.
See Employers
Mutual Casualty Company v. Mallard
, Shrader
v. City Of Attalla
.

Combine With
State Cases

You can also
sue for state law claims at the same time in the same lawsuit in
federal court. The state where the groping occurred will be the
state law that applies. State laws will differ, but some states
will give plaintiffs more choices than others.

Tactic 4 —
State Civil Lawsuit

A TSA agent
may be sued in state court for civil wrongs under both state and
federal law. State court usually has lower fees and litigation costs
than federal court.

Every state
has different state tort claims that may be brought. In order to
protect your rights, bring as many as may apply. Here are some common
ones to keep in mind.

  • Negligence
  • Negligent
    Infliction of Emotional Distress
  • Intentional
    Infliction of Emotional Distress
  • Assault
  • Battery
  • Intrusion
    Upon Seclusion
  • And Many
    More…!

There Are
Always Risks

A judge may
not agree that a certain law applies and may not permit a case to
continue. A jury may not be convinced that a TSA agent’s actions
give rise to any criminal or civil liability. An attorney will be
able to help you assess the strength and risks of your case.

Conclusion

Holding individual
TSA agents responsible for their actions is just one of many possible
strategies to restore human dignity and protect our fundamental
rights. What other
strategies
do you think would be useful in that fight? Does
this strategy even appear helpful? Please leave a comment and let
me know what you think. The book How
To Vanish
can help you protect the privacy of more than
your junk.

About the Author:
Bill
Rounds is a California attorney
that focuses his practice on
privacy and privacy related issues.

P.S.

I decided that
it might be useful to provide a hypothetical situation with very
strong facts supporting a violation of many of the rights and laws
discussed above. Use it to compare to your own situation to see
if you may have a similarly strong set of facts.

Bob and Mary
Traveler

Bob and his
wife Mary are about to fly from LAX to Denver. Bob’s wife
is very attractive and they both notice that the TSA agents, both
men and women, have been uncomfortably staring her down from the
moment she got into the long security line. As Mary approaches the
security screening area they both notice that several TSA agents
are talking back and forth with each other right before one of the
TSA agents calls Mary to the side for “additional random screening
procedures.”

Mary Is Singled
Out

Mary steps
aside politely and realizes that she has been asked to enter the
full body scanner. Mary is a dentist and is aware of the risks of
even low doses of x-rays and so she asks the TSA officer if she
may opt out of the full body scanner. The officer looks visibly
perturbed, stares back at her for a moment, and then while facing
the crowd of travelers and in a very loud voice yells twice “We
have an opt out!”

Most of the
people in the crowd turn to look at Mary and Mary turns slightly
red from embarrassment. The TSA officer takes her to an area which
is still in full view of dozens of travelers. The agent asks Mary
if she would like to go to a private room, but she is flustered,
embarrassed and intimidated by the badges and the many officers
now surrounding her so she feels more comfortable to be in plain
view of her husband and other people.

A female agent
is brought over and she explains to Mary that she will be patted
down and how the pat down procedure will work. Mary is a devout
Christian and does not believe in allowing people other than her
spouse to touch her in sensitive areas such as her genitals, groin,
inner thighs, or breasts, regardless of gender. She asks politely
that the agent not touch her “genitals, groin, inner thighs, or
breasts” as part of the pat-down procedure.

The TSA officer
is very visibly annoyed and tells Mary that because of her refusal
to cooperate a supervisor must be present. Mary waits for several
minutes while other passengers look on. The supervisor explains
that Mary will have to undergo the search or she cannot fly. Mary
asks what will happen if she does not consent to the search. The
supervisor responds that she will potentially face a civil penalty
of $10,000 and she may be criminally prosecuted for starting the
screening procedure without completing it.

Mary Agrees
Under Duress

Mary is now
very frightened by the threat of such action as well as being confronted
by so many officers with badges and guns. Mary states that “because
you are TSA officers and to avoid the potential civil and criminal
penalties, I will complete the procedure.”

The female
agent who had been staring at Mary the entire time she was in the
security line then finishes explaining the pat-down procedure in
what Mary thinks is a mocking tone of voice. The agent begins patting
Mary down in a very rough and exaggerated manner which draws the
attention of many people in the crowd. Mary’s husband is looking
on from a short distance and so are many other passengers.

Other male
agents are looking on very intently from a very short distance away.

The TSA Agent
Touches Private Areas Of Mary’s Body

The female
agent puts her hands on Mary’s inner thigh and slowly but forcefully
slides her hand up to Mary’s groin. When her hand touches Mary’s
groin, the TSA agent continues to press upwards with the back of
her hand against Mary’s groin, touching Mary’s genitals and anus
through her clothing for several seconds. Mary is extremely uncomfortable
and thinks that her genitals and anus are being touched much longer
than would be necessary to see if there are any weapons there. The
TSA agent repeats this exact procedure on Mary’s other leg, again
ending with a lingering touch of Mary’s genitals and anus.

The TSA agent
then begins to inspect the area around Mary’s breasts in a
very exaggerated manner, feeling all around them and then touching
every part of her breast very roughly.

As the female
agent continues performing the pat-down, Mary notices several male
TSA agents still watching intently, quietly talking to themselves,
and many of them have strange smiles on their faces.

The female
TSA agent then tells her “ok lawyer girl, you can go.”

Mary And Bob
Gather Important Information After The Pat Down But Before Exiting
The Security Area

Mary is absolutely
humiliated and feels violated, but she asks the TSA agent for her
name and badge number. She also asks a supervisor to confirm the
name and badge number of the agent who conducted the pat-down. Mary
asks the name and badge number of the supervisor as well as the
names and badge numbers of all of the male agents that were nearby.
Mary writes them all down.

Bob talked
with several other passengers who saw and heard everything that
was happening during the pat-down. Bob got their contact information
since many of them indicated that they would testify in court to
what they saw. There may also be security
camera
footage available.

Strength Of
Mary’s Case

Mary may have
a good case to take to the federal or state prosecutor in LA. The
TSA agent touched her breasts, buttocks, genitalia, anus and inner
thigh with the back part of her hand through Mary’s clothing
which are all necessary elements of the federal Sexual Assault statute.

The unnecessarily
loud shouting, exaggerated gestures, intense gazes from the moment
Mary got into the line, rough touching, doing everything in front
of many passengers and gaining the attention of many other passengers,
plus the actual and visible humiliation that Mary felt makes an
intent to abuse, humiliate, harass, or degrade very likely.

The stares
that she received from the TSA agents, the inaudible talking amongst
themselves, onlooking male agents and rough touching from the agent
who patted her down might indicate that any one of them was experiencing
some level of sexual arousal or gratification from watching or participating
in the pat down of an attractive woman.

Mary asked
not to be touched in certain areas and agreed to complete the process
only after being intimidated by the badges, guns and other threats
of civil and criminal action. Thus she was under duress and did
not freely consent.

The combination
of these conditions is very likely to satisfy the elements of Sexual
Assault as defined by federal law and the case might be very easy
to prove since there are so many willing witnesses, security tapes
and other strong evidence of all of the vital elements of the case.

The gathering
and private chatter of the other TSA agents might even be sufficient
evidence of a conspiracy, a separate cause of action,
to violate Mary’s rights which will subject all it is raised against
to prosecution and litigation.

Strength Of
Her Civil Case

If the prosecutor
is unwilling to press charges, Mary still has a very strong civil
case against the TSA officers for violating her due process rights
of privacy and bodily integrity. The sexual contact that occurred
that likely meets the definition of criminal sexual assault is very
similar to the line of cases where police officers were successfully
sued for civil damages. Because the agent was in uniform, supported
by threats of civil and criminal action, the pat down is likely
to be under color of law. It will be up to Mary to convince a jury
that the actions shock the conscience or offends human dignity,
a feat that will not be hard with a jury full of air travelers.

There may even
be numerous other state law claims in tort as well. Maybe the agent
negligently touched Mary’s genitals, maybe they intentionally tried
to make Mary feel bad or humiliated. It is hard to count just how
many potential laws have been broken or rights infringed in this
one single hypothetical encounter. I hope nobody ever has to experience
this kind of indignity, ever.

Reprinted
with permission from How to
Vanish.

December
16, 2010

Bill
Rounds, J.D. is a California attorney. He holds a degree in Accounting
from the University of Utah and a law degree from California
Western School of Law
. He practices civil litigation, domestic
and foreign business entity formation and transactions, criminal
defense and privacy law. He is a strong advocate of personal and
financial freedom and civil liberties. This is merely one article
of 73 by Bill
Rounds J.D.

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