RICHMOND, Va. (CN) — The Fourth Circuit joined the Third and Eighth Circuits on Tuesday in holding that Transportation Security Administration screeners can be accountable under the Federal Tort Claims Act.
"TSA has argued since its inception that it is immune from all kinds of judicial review," attorney Jonathan Corbett of Corbett Rights, representing plaintiff Erin Osmon, said in a statement. "But no agency or officer should escape accountability when they harm the public, especially one as notoriously insensitive and frequently abusive as TSA. The court today put to bed the issue of whether the federal government is directly liable for torts committed by its blue-shirted employees at the airport checkpoint — with a unanimous 'yes.'"
In her lawsuit, Osmon claims she was assaulted by a TSA screener at the Asheville Regional Airport in North Carolina in 2019. According to her Fourth Circuit appellate brief, 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 Western District of North Carolina judge dismissed the lawsuit, finding TSA screeners do not fall under the so-called law enforcement proviso of the Federal Torts Claim Act.
The act contains a waiver of sovereign immunity for federal government officials and permits people injured by the wrongful act or omission of on-duty federal employees to sue the government where state law would make a private employer liable.
Individuals may also sue under the act for assault and battery, but only if the assault or battery arises from acts or omissions of investigative or law enforcement officers. The crux of the case boils down to whether screeners are empowered by law to execute searches, seize evidence or make arrests for violation of federal law — the congressional definition of a covered official.
"We conclude the answer is yes," U.S. Circuit Judge Toby Heytens, a Joe Biden appointee, wrote for the panel. "Because the law enforcement proviso 'speaks in the disjunctive,' TSA screeners need be empowered only to do one of the three listed things."
According to Heytens, the congressional authority given to TSA screeners to screen passengers and property amounts to a search.
"Federal regulations require an 'aircraft operator' to 'refuse to transport' any person 'who does not consent to a search or inspection of his or her person' by TSA screeners," Heytens wrote for the panel. "As a matter of 'plain language,' that would seem to be the end of the matter."
At oral arguments in March, the government argued that rather than being authorized to execute searches, screeners simply look for dangerous items while the TSA police officer determines whether the items violate federal law and requires the seizure of evidence or arrest to be made.
"The government misses the mark with its discussion about whether TSA screeners are 'law enforcement officers' in some general sense," the opinion states.
Heytens and the panel also rejected the government's efforts to tie the definition of "law enforcement officer" to crimes and criminals and not just the seizure of a bottle of liquid larger than three ounces from an airline passenger.
"Government officials investigate plenty of violations of law that are civil, not criminal, in nature," Heytens wrote. "There is nothing linguistically strange about using the words 'seize evidence' in that context."
As for the government's argument that TSA screeners do not execute searches because they don't obtain warrants, the panel noted school officials search a student's property without a warrant.
"This statute — unlike all the others referenced in the opinion the government relies on for this point — does not contain the word 'warrant,'" Heytens wrote. "Nor is this a trivial distinction because the ability to execute a search does not necessarily imply power to execute a search warrant."
U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, and U.S. District Judge Joseph Dawson III, a Donald Trump appointee sitting on the panel by designation from the District of South Carolina, joined Heytens in the opinion. They remanded the case for further proceedings.
Attorneys representing the government did not respond to requests for comment.
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