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.
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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.
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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.
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.
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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.
- Negligent Infliction of Emotional Distress
- Intentional Infliction of Emotional Distress
- 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.
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.
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.
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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.
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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.