DHS Off the Hook for Airport Screening Snafu

(CN) - A man who was allegedly arrested after he stripped down in airport security to reveal the Fourth Amendment written on his chest cannot sue the government for violating his constitutional rights, a federal judge ruled.

Before boarding a flight departing from the United States, airline passengers must pass through a metal detector and may be subject to random "enhanced secondary screening" by the Transportation Security Administration. This entails either a full-body pat-down search or an Advanced Imaging Technology scan, which produces a highly detailed picture of the passenger's unclothed body.

On Dec. 30, 2010, Aaron Tobey entered the security checkpoint area at Richmond International Airport before boarding a flight to Wisconsin for his grandfather's funeral. A transportation security officer directed Tobey to take a body scan.

Before entering the scanning unit, however, Tobey allegedly stripped down to his running shorts to reveal the text of the Fourth Amendment written in black marker on his chest.

The officer, referred to in court documents through the pseudonym, Rebecca Smith, had explained that clothing removal was unnecessary. She radioed for help when Tobey got undressed. In a federal lawsuit, Tobey said he was handcuffed and questioned at the on-site police station for 1 1/2 hours.

The officers also allegedly discarded Tobey's belongings and gave him a summons for disorderly conduct, but did not prosecute the charge. Tobey said one officer advised him "that the police would make sure" he had "a permanent criminal record as a result of his actions."

Tobey boarded his flight after going back through the security checkpoint.

U.S. District Judge Henry Hudson agreed to dismiss the claims against the Capital Region Airport Commission and several Richmond airport police officers, including chief Quentin Trice. "While plaintiff's allegations may establish that Trice was a policymaker, they fall markedly short of suggesting that Trice directed any action which caused the constitutional violations alleged in this case," the 35-page decision states. "There is no indication that Trice directed or even knew about the actions until after the fact."

Hudson also dismissed several allegations against Homeland Security Secretary Janet Napolitano and TSA Administrator John Pistole.

"Plaintiff does not allege that they were directly involved in any way in the events, nor does he allege any facts suggestive of deliberate indifference," Hudson wrote, referring to Napolitano and Pistole.

The judge did not credit Tobey's argument that constitutional violations during the screening process are necessarily the fault of screening guidelines that apparently authorize such constitutional violation. "This is not a reasonable inference," Hudson wrote.

The court let the TSA officers who radioed for assistance off the hook as well. "Given the heightened security interest at airport security checkpoints, it was eminently reasonable for Smith and Jones to seek assistance from the police," Hudson wrote, referring to an airport officer referred to in the complaint by the pseudonym Terri Jones.

Tobey will, however, be allowed to proceed against certain DHS defendants in their personal capacities.

"The question is whether the TSOs in fact radioed for assistance because of the message plaintiff sought to convey," Hudson wrote. "Because plaintiff's unrebutted claim facially states a cause of action, the question of qualified immunity must await further discovery."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit