Fourth Circuit grapples with role of airport security staff

RICHMOND, Va. (CN) — A Fourth Circuit panel heard arguments Tuesday to determine whether Transportation Security Administration screeners count as investigative or law enforcement officers for the purposes of federal tort claims. 

The case at issue was brought by a woman who claims she was assaulted during a TSA screening in North Carolina in 2019. According to her brief filed with the Richmond-based appeals court, the screener forced her to spread her legs and made direct contact with her genitals, while commenting on her attire and "warning her that the sexual assault would be repeated" if she resisted.

A federal judge in the Western District of North Carolina dismissed the lawsuit, agreeing with a magistrate's finding that TSA screeners do not fall under the so-called law enforcement proviso of the Federal Tort Claims Act, an exception to immunity that allows claims against police arising from assault, battery, false imprisonment or malicious prosecution.

"The undersigned is persuaded that TSA screeners should not be considered to be 'empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law' and therefore fall outside the scope of the proviso such that the United States has not waived sovereign immunity for plaintiff's claim," U.S. Magistrate Judge W. Carleton Metcalf wrote.

On appeal, the plaintiff is asking the Fourth Circuit to reverse the district court and rule that her claims are not barred by sovereign immunity.

"The government has invited the Court to immunize TSA screeners from tort remedies by re-writing statutory language, and the court below indulged them without even conducting de novo review of a magistrate’s recommendation. The Court should decline to allow TSA screeners to intentionally injure the public with impunity," her brief states.

The government agrees with the lower court that TSA screeners do not qualify as cops. 

"The district court correctly held that the proviso does not encompass employees like TSA screeners who lack authority to make arrests, seize evidence, or execute searches for violations of federal law," its brief states. 

The question has split other circuits, with the 11th Circuit issuing an unpublished opinion in favor of the government and the Third and Eighth circuits handing down published decisions in favor of plaintiffs trying to bring tort claims against TSA screeners.

At oral arguments Thursday, members of the Fourth Circuit panel and the government's attorney, Daniel Aguilar, seemed to disagree on whether screeners are authorized to execute searches.

Aguilar argued that screeners simply look for dangerous items and it's the TSA police officer's job to determine whether the items violate federal law and require the seizure of evidence or arrest to be made. 

"I don't know what they're doing then if they are not executing a search," said U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee. "What are they doing? Just groping people?" 

Aguilar conceded TSA screeners do search, but argued there is a distinction.

"What they're not doing is executing a search for violation of federal law," Aguilar told the three-judge panel. "What they are doing is making sure that prohibited items that can pose a danger to the aircraft or passengers do not get through." 

Thacker said those prohibited items violate federal law, meaning screeners are essentially authorized to execute searches pertaining to federal violations. Aguilar said the difference is that should a passenger be found to have a prohibited item by the screeners, they have a choice to abandon the item or return it to their car. 

"There's not necessarily going to be civil or criminal consequences for that. It's just the item can't go through," the Justice Department attorney said. 

U.S. District Judge Joseph Dawson III, a Donald Trump appointee sitting by designation from the District of South Carolina, asked how TSA did not execute a search on the plaintiff since she was flagged by the metal detector and then patted down by a screener. Dawson asserted that when an item is flagged, the screener goes from possibly seeing an item to actively searching for the item. 

"Here, it's not about seeing," the judge said. "Now you're actually looking for it, and you're patting down and reaching and grabbing for it at that point in time. This isn't looking at something on a screen." 

U.S. Circuit Judge Toby Heytens, an appointee of President Joe Biden, disagreed with Aguilar about whether TSA screeners have the power to seize evidence. Heytens contended that should he walk through a TSA checkpoint with a gun, the gun would be seized until law enforcement arrived. 

"What they do is they hold it, and then they call the guy with a gun to come get it," Heytens said. "What is happening during that 15-minute period where they will not give me my thing back, and they are calling the person with a gun?" 

Aguilar said that would be a reasonable part of the screening process rather than a seizure of evidence by screeners.

The plaintiff's attorney, Jonathan Corbett of Corbett Rights, used a small water bottle as an example of how getting any item past TSA screeners is a violation of federal law. 

"If I go to the airport with this in my pocket and I manage to pass through security because they don't find it, I have violated federal law," Corbett said. "Federal law prohibits anyone from circumventing TSA security procedures, and TSA security procedures prohibit this item from going through — TSA does nothing but looks for violations of federal law." 

The Federal Tort Claims Act was signed into law by President Harry S. Truman in 1946, 55 years before the 9/11 attacks that spurred the creation of the TSA. Corbett said that what Congress was trying to achieve in passing the FTCA applies to TSA screeners. 

"They had in mind people who would be on behalf of the government in some kind of quasi-law enforcement capacity touching the people," the attorney said. "That's exactly what TSA is." 

After the hearing, Corbett said he was pleased there might be a remedy for people affected by TSA screeners moving forward. He noted that around a third of the cases he is involved with relate to TSA and the majority of those affected are women.

Aguilar declined to comment after the hearing. 

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