Grope this! Can TSA be sued for assault? Court issues ruling
Agents for the Transportation Security Administration have been put on notice that they must follow the constitutional requirements when they do searches of passengers.
A ruling from the 9th U.S. Circuit Court of Appeals has found that they are "law enforcement officers" who conduct "searches" and so are liable to be sued when they assault passengers.
It was the Institute for Justice that participated in the case involving Michele Leuthauser through a friend-of-the-court brief.
"The government’s position in this case hinged on its argument that TSA agents don’t conduct searches. While the trial court accepted that argument, the appeals court’s ruling let common sense and accountability prevail," said institute lawyer Patrick Jaicomo.
"This ruling is a major win for the millions of Americans who fly, ensuring that they have a viable avenue for justice when TSA agents violate their rights."
The case began in 2019 when Leuhauser was flying out of Las Vegas.
"When she walked through the TSA line, she was told to go to a private room for additional screening. Leuthauser describes the 'groin search' that ensued as a traumatic invasion of her most intimate areas, wholly without justification. Leuthauser contacted the airport police about what happened but was informed that TSA agents were outside of their jurisdiction," the institute explained.
So she sued the officer and his employer, the U.S., under the Federal Tort Claims Act.
But the lower court dismissed the case after agreeing that TSA agents don't do searches.
That left her without a remedy in court.
Now the appeals court has reinstated that argument.
"A right without a remedy is no right at all, and if the government had its way in this case, there would be no meaningful remedy for Ms. Leuthauser," said institute lawyer Anya Bidwell.
An online review of the case disposition explained that Leuthauser's case alleged nothing less than "sexual assault."
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At issue was whether she could file claims for battery and intentional infliction of emotional distress against the United States.
The appeals court concluded that the agents fall under the federal law's "law enforcement proviso," which "waives sovereign immunity for torts such as assault and batter committed by 'investigative or law enforcement officers."
The report explained the Ninth now has joined "the Third, Fourth, and Eighth Circuits in holding that the FTCA’s limited waiver of sovereign immunity applies to certain intentional torts committed by TSOs."
The appeals court found "a TSO easily satisfies dictionary definitions of officer at the time of the proviso’s enactment in 1974. That TSOs are titled, uniformed, and badged as 'officers' reinforces the conclusion that they are 'officers of the United States' as understood in ordinary parlance."
The panel rejected the government’s contention that the proviso is limited to officers with traditional police powers, the report said. The panel also rejected the government’s contention that TSOs are not officers partly because the Airport Transportation Security Act refers to them as “employees,” where the Act defines employees to include officers, the report said.
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