{"id":28752,"date":"2023-01-09T19:14:04","date_gmt":"2023-01-09T19:14:04","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2023\/01\/09\/appeals-court-hands-immunity-to-tsa-agents-who-forced-man-to-delete-his-recording-of-them\/"},"modified":"2023-01-09T19:14:04","modified_gmt":"2023-01-09T19:14:04","slug":"appeals-court-hands-immunity-to-tsa-agents-who-forced-man-to-delete-his-recording-of-them","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2023\/01\/09\/appeals-court-hands-immunity-to-tsa-agents-who-forced-man-to-delete-his-recording-of-them\/","title":{"rendered":"Appeals Court Hands Immunity To TSA Agents Who Forced Man To Delete His Recording Of Them"},"content":{"rendered":"

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from the sure-it’s-a-violation,-but-we’re-not-going-to-offer-a-remedy<\/i> dept<\/h3>\n

Yeah, this is not great. This is yet more case law basically saying don\u2019t bother suing federal agents because, unless they\u2019ve very specifically<\/em> done the same thing other federal agents have been held accountable for, they\u2019re just going to walk away from lawsuits. <\/p>\n

The Supreme Court\u2019s 1971 Bivens<\/em> decision<\/a> may have created a cause of action for citizens whose rights have been violated, but every year since has seen repeated narrowing of an already narrow decision. It doesn\u2019t matter whether a federal officer filled you full of bullet holes<\/a> from across the US\/Mexico border or, less horrifyingly in this case, made you stop recording a patdown of your loved ones and forced you delete the recording. Either way, the government wins and more precedent is established taking each subsequent constitutional violation by a federal agent further and further away<\/a> from a judicial remedy. <\/p>\n

In 2019, Dustin Dyer, his husband, and their children were attempting to board a plane at a Virginia airport. Dyer and their kids went through. His husband did not. TSA agents detained him to perform a pat down supposedly related to the infant formula he was carrying which TSA agents could not open.<\/p>\n

Dyer stood about 10 feet away from the pat down and began recording. TSA agent Natalie Staton noticed he was recording and asked him to stop, claiming this passive recording from 10 feet away somehow \u201cimpeded\u201d the other agent\u2019s ability to \u201cdo his job.\u201d Dyer reasonably asked for clarification of this assertion by Staton. This was ignored as Staton went and grabbed her supervisor, Shirrellia Smith. <\/p>\n

Dyer asked Smith if he could continue recording. Smith said no. Dyer stopped recording. Smith then ordered Dyer to delete the recording while Staton shoulder-surfed to ensure the ordered deletion took place. <\/p>\n

Dyer sued. He reasonably claimed this was a violation of his First and Fourth Amendment rights by the TSA agents. <\/p>\n

He won. Or rather, the TSA agents weren\u2019t granted immunity on his Bivens<\/em> claims by the circuit court. The 2021 decision<\/a> [PDF] said several important things. First, it recognized a right to record public employees \u2014 a right that has yet to be recognized<\/a> at the appellate level with a prejudicial decision. <\/p>\n

It went another crucial step further: it said the alleged First and Fourth Amendment violations could be addressed under Bivens.<\/em> This was brand new, as higher level courts (including the Supreme Court) have yet to extend the Bivens<\/em> decision to cover First<\/em> Amendment violations. But, as the court saw it, the violation of Dyer\u2019s First Amendment rights was so \u201ccrystal clear,\u201d these federal agents could not avail themselves of qualified immunity.<\/p>\n

Furthermore, it said that even if the TSA has some legitimate national security directives to address that may curtail constitutional rights, this isn\u2019t one of them. The TSA can still perform its important national security work while people record from a safe distance away. And allowing these officers to be sued does nothing to deter the TSA and its employees from continuing to do this (allegedly) important work.<\/p>\n

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Allowing damages in this case would not hamper TSA\u2019s efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents\u2019 ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.<\/em><\/p>\n<\/blockquote>\n

Well, that\u2019s all over now. The findings of the lower court have been swept away entirely by the Appeals Court, which says none of this is right. It sides (as it has to) with the Supreme Court\u2019s extremely limited interpretation<\/a> of plausible Bivens<\/em> actions (i.e., heads, the government wins; tails, the plaintiff loses) <\/p>\n

Everything good about the lower court\u2019s decision no longer matters. The TSA agents get a free pass exactly for the reasons the lower court said they shouldn\u2019t. (via Short Circuit<\/a>)<\/p>\n

First, the court<\/a> [PDF] (unbelievably) claims that the correct remedy for rights violations by TSA agents is the TSA\u2019s complaint box<\/a> (the Traveler\u2019s Redress Inquiry Program [TRIP]) rather than the federal court system. And if it isn\u2019t, well\u2026 take it up with your local Congress rep, I guess.<\/p>\n

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[T]he question is not whether TRIP maps neatly onto Appellee\u2019s claim. The question is whether Congress has acted or intends to act. And in this context, Congress has acted by establishing TRIP.<\/em><\/p>\n

While TRIP may not squarely address complaints by an individual similarly situated to Appellee, that silence does not give this court license to usurp Congress\u2019s authority in an area where Congress has previously legislated.<\/em> That is particularly so because Congress has limited judicial review of TSA decisions and refrained from providing any financial remedy for passengers against TSA employees. For these reasons, we hold that Congress, not the judiciary, is better equipped to provide a remedy here.<\/em><\/p>\n<\/blockquote>\n

The same thing goes for the other part: that recording agents does not interfere with the TSA\u2019s national security directives. Here, the court doubles down on bad precedent and deference to a branch of the government that has rarely, if ever, felt like making the TSA better or more accountable to US citizens.<\/p>\n

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While we have never addressed a Bivens claim against TSA agents, the Third Circuit has declined to extend a Bivens remedy based upon TSA\u2019s role in national security. Vanderklok, 868 F.3d at 189. In Vanderklok, the Third Circuit held, \u201cthe role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context. The dangers associated with aircraft security are real and of high consequence.\u201d We agree. And although Appellee claims he did not pose a national security risk, it is not our task to ask \u201cwhether Bivens relief is appropriate in light of the balance of circumstances in th[is] \u2018particular case.\u2019\u201d Egbert, 142 S. Ct. at 1805. To avoid \u201cfrustrat[ing] Congress\u2019 policymaking role,\u201d we instead ask whether Congress is better suited than the courts to conduct that balancing, id. at 1803, 1805.<\/em><\/p>\n<\/blockquote>\n

Sure, ask. Ask away. Is Congress \u201cbetter suited\u201d to create a form of remedy for rights violations by federal employees? Possibly. But it never will because [bangs Fourth Circuit\u2019s head repeatedly against the bench] CONGRESS. IS. COMPOSED. ENTIRELY. OF. FEDERAL. EMPLOYEES.<\/p>\n

And that\u2019s not the most ridiculous part of this decision that converts real rights violations into rhetorical questions for the sole sake of giving federal employees a free pass. The Fourth Circuit follows all of this pointless deference and refusal to act as a check and\/or balance by claiming, with an apparently straight face, that allowing TSA agents to be sued for violating First Amendment rights would threaten the security of the nation.<\/p>\n

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As the Supreme Court has recognized, \u201c[n]ational-security policy is the prerogative of Congress and the President,\u201d and to impose damages or liability is likely to \u201ccaus[e] an official to second-guess difficult but necessary decisions concerning national-security policy.\u201d Thus, creating a cause of action against TSA agents could \u201cincrease the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers\u201d or disruptions at security checkpoints. The nature and gravity of these risks, and whether they are outweighed by countervailing interests in judicial relief for passengers, make such a situation ill-suited to judicial determination<\/em><\/p>\n<\/blockquote>\n

There it is: the third branch of the government says let the other two handle it, deferring to branches who have changed almost nothing about remedies for federal rights violations in the 50+ years since the Bivens<\/em> decision. Sure, we should ask for legislation from the bench. But we should also expect them to realize rights violations when they see them and be extremely hesitant to allow government employees to walk away from the damage they\u2019ve done before a jury can take a look at the facts.<\/p>\n