Almost arrested for refusing the TSA pat-down.

Very unpleasant experience today with TSA employees on a mission from God to conduct full body pat-downs whenever they could. You’ve heard about it. You’ve seen it on television. Well, it actually happened to me this morning and I almost went to jail over it.

I was attempting to fly out of Sarasota, Florida to Atlanta, Georgia today. I cleared security and got out to my gate only to discover the flight was delayed for another hour and a half. So I exited the boarding area and went to one of the restaurants in the main terminal. When I attempted to go back through security I was detained and told to sit in a Plexiglas cubical. I was now separated from my carry-on bag, my shoes, wallet, cell phone, watch and belt. Eventually a TSA employee entered and began to describe the procedures he was going to use to pat-down my entire body. I declined, and said I wanted to go back through the scanner. After all, I had cleared it earlier in the morning, and there was nothing new on my person. Perhaps it was just a misreading.

Well, they would have none of that. A very pompous little supervisor came over and asked me if I wanted to fly today. I informed him that was my intention. Otherwise, why would I be in his little plexiglass cubical. I told him I did not wish to submit to the full body pat-down because I believe it is unwarranted and potentially an unconstitutional invasion of my right to privacy—you know, the privacy right the Supreme Court says is in the Constitution even though there are no such words to that effect. Not persuaded by my argument, the supervisor told me to submit or he would have me arrested. I asked what law I was allegedly violating. He said refusal to submit to federal authority. I replied that I thought there were less intrusive alternatives. He said “No,” and once again demanded that I submit. I declined, so he brought over his superior and three Sheriff’s deputies. Now it was getting interesting.

So much time was taken up with all this nonsense that I missed my flight. When I informed them that I wished to leave the screening area so I could see about another flight I was advised that I was not allowed to leave. Now that I had tripped into their briar patch I either submitted to their search or face arrest. I contemplated the arrest scenario in earnest. When I was in law school 30 years ago, I don’t recall things being like this. Certainly there have been some changes, especially after 9-11, but full body pat-downs and groping of genitalia? When did all this come about Janet Napolitano? Last week? Well, I don’t think it will be around six months from now, so enjoy it while you can.

Facing certain arrest if I refused to submit to their police tactics, I agreed to the search and was led to a private cubical with frosted glass to keep things a bit more private. A Sheriff’s deputy stood inside because I said I did not wish to be without witnesses should the TSA employee get a bit too frisky while feeling every inch of my body, and I do mean “every inch!” Ladies, you are going to love this new procedure when you get singled out for “special” treatment. And guys, you are not going to like it one bit. No happy ending!

Naturally, the extraordinary feel-down didn’t produce anything explosive, or otherwise. Nevertheless, I was informed that the contents of my carry-on bag needed to be searched. Once again, I protested, informing them that it had already passed through screening on the x-ray conveyor belt. Well, now things were different. Now that I was getting the “special” treatment, the entire contents of my bag were laid out on the table for all to see. About 13 local and federal agents gathered around for this little training exercise, or as our beloved President Obama would call it, a “teachable moment.” Fortunately, I wasn’t carrying any sexy lingerie or other items that could cause one to blush. And the extra look-through didn’t produce anything explosive or dangerous, even though I mentioned that my house key could be used to poke out someone’s eye. They failed to see the humor in that observation and stuffed my belongings back into the bag and escorted me out of the screening area and into the ticketing terminal. I got booked on a late afternoon flight, rented a car for three hours ($18 is a lot cheaper than a taxi), and came home to catch on some work before returning to the brave new world of TSA dominance.

As a Million Miler with Delta, I have a little bit of experience with this whole flying thing. I was flying long before 9-11 brought about all this beefed up security and intrusiveness. I’ve faced plenty of airport security issues about the decade, had valuable items stolen from my checked bags by TSA employees, and now this arrogant display of unbridled assault and battery on my body, all in the name of protecting the American public. I publish this missive and add my voice to the growing tide of rebellion over this unprecedented intrusion against our personal freedom.

Now, it’s time to head back to the airport and pray that there has been a shift change in the screening area. If not, please come visit me wherever they decide to lock me up.

I flew out of DCA. One small carry on. It was a circus getting through and so many people. Small problem, my flight was canceled but I was told when I processed my e-ticket thing Delta put me on a flight that was leaving in 20 minutes IF I could make it. If not I would have to wait 4 hours.

So I rush down to find a huge line waiting to get their ticket confirmed and go through checkpoint.

I put all the crap I had on me in the bowl thing but went into the scanner with my wallet in my pocket. I guess they saw it so I had to take that out and one of the TSA guys handed it to another TSA person who I saw with a bowl.

I come out of the scanner looking for the guy and my wallet, but TSA stopped me from going over to the conveyor belt thing, and I had to go off to the side and get a pat down. The first bowl and bag already came through. With the number of people on both sides grabbing stuff off the conveyor belt, there was nothing stopping anyone from lifting my wallet IF it was in there.

I did not see or know where my wallet was, and the guy who originally took my wallet was way back at the starting point of the conveyor.

I was so pissed I stood there with my hands behind my head like I was being arrested.

The bowl with my wallet did come out when I went over, but I was thinking it must have been over a minute since it was out of my hand. Only it doesn’t take anything a minute to go through the machine.

I got to the gate and they were already letting “everyone else” on the plane. I waited but the line wasn’t moving and the woman in front of me told me that ticket passengers were already in. Made it with a few minutes to spare.

It's a beaut, isn't it?

You are right, of course, that Aukai is only binding in the 9th Circuit. However, circuit cases are often cited as "persuasive authority" before courts outside that circuit. Also, the TSA has been relying on Aukai in setting its policies.

The really bad news is that the jurisprudence surrounding the issue of whether various sorts of airport searches are "reasonable" under the 4th Amendment has been highly deferential to the TSA (and its various predecessors) in every circuit I'm aware of, as well as in the Supreme Court.

The Supreme Court has not, to my knowledge, reviewed the constitutionality of the more invasive TSA searches (though it has mentioned airport searches generally in dicta). However there are signs that the current Court won't be any less deferential to the TSA than are the lower courts. For example, in 2005, Sam Alito, then a judge on the 3rd Circuit, wrote an opinion in United States v. Hartwell [PDF] which held a number of TSA procedures permissible under the "administrative search doctrine".

The facts of this case were slightly less outrageous than some others: Hartwell set off a metal detector, was asked to empty his pockets, and then went through again. He was then searched with a wand, which detected a "solid object" in his pocket. He was then escorted to a private screening room where the TSA officer demanded that he remove the object from his pocket. He refused, and, according to Hartwell, the TSA officer reached into his pocket and pulled out a package of drugs.

There are a number of points in Alito's reasoning that I find troubling. First, on page 9 while determining that there was a "special need" as required under the first step of the Brown test for administrative searches, Alito makes the blanket statement that "there can be no doubt that preventing terrorist attacks on airplanes is of paramount importance." That suggests that little things like the privacy, liberty, and freedom of travel of American citizens are of secondary importance. Maybe they are, but I think those interests at least ought to be addressed before they are dismissed.

Next, Alito at page 11-12 places great weight on the fact that "air passengers are on notice that they will be searched". That is true, of course, but he neglects to explore exactly what sort of search passengers are on notice that they should expect. His reasoning almost seems to suggest that passengers are on notice of, and impliedly consent to, an unlimited spectrum of search procedures just by buying a ticket and getting in the security line. That's ridiculous. Yes, we expect to go through a metal detector, get our bags x-rayed, and maybe get wanded. We do NOT expect to be detained, patted down or strip-searched. We consent to LIMITED searches - we are not writing the TSA a blank check to grope us and probe our various orifices.

Also on page 11, Alito states that "the possibility for abuse is minimized by the public nature of the search." Quoting another case, he points out that "these searches are made under supervision and not far from the scrutiny of the travelling public." He neglects to mention that the air of intimidation actively cultivated by the TSA strongly discourages any objections by that travelling public - after all, who wants to speak up and risk landing themselves in the "happy booth", especially when there's a plane to catch?

Alito also makes the puzzling assertion that "the airlines themselves have a strong interest in protecting passengers from annoyance and harassment." This may have been relevant in the pre-9/11 era of private airport security. Today, however, it is a non-sequitur - the TSA does not in any way answer to the airlines.

Finally, in footnote 12, Alito, supported by a number of cases from other Circuits, makes the same conclusion as the 9th Circuit in Aukai that one has no right to leave once the screening process starts. In this footnote (and, indeed, in the rest of the opinion) Alito cites cases from a number of other circuits which support his position. While Aukai itself is the law only in the 9th Circuit, many, if not most, of the other circuits have taken the same position on airport searches.

This is something we need to be aware of as conservatives. There is a powerful, perhaps dominant, strain of conservative jurisprudence which favors an extremely powerful executive branch and few checks on its power in police and national security matters. When we support conservative judges, we need to be aware that conservative jurists can vary widely on these issues.

Finally, I think this highlights the fact that we cannot rely on the courts to protect us from the TSA's excesses. This is something that will have to be addressed through Congress, and that's going to be difficult, because no Congressman wants to be seen as "soft on fighting terrorism".

“Refusal to submit”

This un-American tinhorn attitude has been nurtured and watered for decades in every dank corner of society, and even in broad daylight. It starts with the false premise that each individual must be loaded up full of self-esteem at all times, leaving no room (zero-tolerance) for anyone or anything who might shrink a massively inflated ego. The more puffed up the ego, the more delicate it becomes, and the slightest brush could make it pop.

Truth becomes a lie, a fantasy of “that which will get me what I want”, because outside of the self, there is nothing. We have a culture of self-worship, thus each inflated ego has no interest in balancing its desires with the reality of the world at large. It only knows that when a competing interest gets in the way, it must be squashed.

Hence it’s all about power and struggle with these folks. The Torah concepts of justice, righteousness, love, and mercy, which pave the true path to peace and elevate the soul, are not only foreign to them, but hostile, competing entities that must be destroyed at any cost. Truth requires a hard look beyond self, which is not an option.

Darkness has zero-tolerance for light.

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