The 3rd US Circuit Court of Appeals in Philadelphia declared TSA screeners act as “investigative or law enforcement officers” when searching passengers, meaning they can be subject to civil claims for intentional wrongdoing under the Federal Tort Claims Act. The decision reverses a controversial 2018 ruling by a three-judge panel from the same court that effectively gave TSA officers immunity under the law.
The “intimate physical nature” of the screenings classifies them as a law enforcement act, the court ruled in a 9-4 decision on Friday, meaning the government’s immunity from lawsuits does not apply in cases where TSA agents abuse their power.
“If you think you are a victim of intentional misconduct by TSA agents, you can now have your day in court,” exulted lawyer Paul Thompson. His client, Nadine Pellegrino, sued the TSA over a 2006 incident in which she was imprisoned for 18 hours and charged with crimes including assault and making terroristic threats, after objecting to an especially invasive screening as she attempted to board a US Airways flight at Philadelphia International Airport.
While she was acquitted of the charges two years later, Pellegrino and her husband sued the TSA for false arrest, false imprisonment, and malicious prosecution – only to be told last year that they were not legally permitted to sue the TSA. Now, at least, the case can continue.
Dissenting judges feared the decision would open a Pandora’s box of lawsuits. But Circuit Judge Thomas Ambro noted that in 2015, less than 200 of the 700 million passengers screened filed complaints that could potentially have led to waivers of government immunity for the TSA.
The TSA has developed quite a reputation in the 18 years of its existence, with horror stories surfacing regularly in the media about invasive searches of children, veterans, and the elderly. In a recent example caught on video, triple-amputee US Air Force veteran Brian Kolfage (of “We Build the Wall” fame) was practically cavity-searched at the gate by an overzealous TSA agent.
After a 2015 Department of Homeland Security study revealed that the TSA failed to detect weapons and firearms a shocking 95 percent of the time, the agency adopted a much more invasive procedure, warning local law enforcement in 2017 that they might receive phone calls complaining about the “comprehensive” searches before people got used to them.
Judge Ambro, however, insisted that “the overwhelming majority of [agents] perform their jobs professionally despite far more grumbling than appreciation.”
Fliers may have a tough time recovering damages for invasive screenings at U.S. airport security checkpoints, after a federal appeals court on Wednesday said screeners are immune from claims under a federal law governing assaults, false arrests and other abuses. In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners are shielded by government sovereign immunity from liability under the Federal Tort Claims Act because they do not function as “investigative or law enforcement officers.”