Man Who Protested Body Scanners Can Sue TSA

(CN) - A man who was arrested after he stripped down in airport security to reveal the Fourth Amendment written on his chest can sue the government, the 4th Circuit ruled.

Aaron Tobey had been protesting controversial full-body scanners as he went through security at Richmond International Airport for a December 2010 flight to Wisconsin. Developed by Rapiscan, the Advanced Imaging Technology produces highly detailed images of a passenger's unclothed body as he passes through a scanner.

The Transportation Security Administration finally dumped the scanners earlier this month after slamming Rapiscan for not improving the technology under a congressionally mandated deadline to produce less explicit images.

Aaron Tobey, heading to his grandfather's funeral in Wisconsin, stripped down to his running shorts before entering the scanning unit. His chest bore the text of the Fourth Amendment in black marker.

After telling Tobey that he did not need to remove his clothes, the TSA official radioed for help. Tobey was handcuffed and questioned at the on-site police station for over an hour.

The officers also discarded Tobey's belongings and gave him a summons for disorderly conduct, but did not prosecute the charge.

In a federal complaint, 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 dismissed Tobey's Fourth and 14th Amendment claims, but let the First Amendment claim proceed.

A divided three-judge panel of the Richmond, Va.-based federal appeals court affirmed Friday.

Tobey did not violate TSA regulations, but "was simply showing appellants what they sought to see by using the AIT scanning machine," Judge Roger Gregory wrote for the majority.

The TSA agents failed to show that Tobey's "bizarre" conduct gave them probable cause, according to the ruling.

"The First Amendment protects bizarre behavior," Gregory wrote. "Woven into our constitutional freedoms is the belief in autonomy and the celebration of difference. For us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic tenets of our Constitution."

Judge J. Harvie Wilkinson III wrote a 20-page dissent.

"These agents were not out to squelch speech or to handle passengers rudely," Wilkinson wrote. "They advised less intrusive measures, not more. The provocation was then thrust upon them, and they gave to passenger protection the benefit of the doubt. They have now been entangled in a lawsuit without so much as a pass at proper notice. They face further litigation for doing nothing more than seeking to ensure our safety in the skies.

"They deserve better," he added. "I respectfully dissent."

The majority blasted TSA for not taking more "reasonable measures ... to ensure safety, such as asking Mr. Tobey about his intentions; fining Mr. Tobey for violating TSA regulations if there was in fact one on point; turning Mr. Tobey away from the line if he refused to put on his shirt; or most simply, asking Mr. Tobey to put his shirt back on."

"Instead, appellants jumped straight to arrest, infringing upon Mr. Tobey's most basic liberty interest," Gregory wrote.

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