# Court Rules TSA Enjoy Sovereign Immunity **URL:** \ **Category:** Great Debates\ **Created:** [August 3, 2018, 7:06pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064 "2018-08-03T19:06:32Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [August 5, 2018, 4:18pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/21 "2018-08-05T16:18:17Z")
> [@silenus](#): > > I’m sure this is Obama’s fault somehow. Somehow? It’s obvious. Obama = Muslim, Muslim = terrorist, terrorism =\> TSA must check your genital area. It’s basically Obama fondling your genitals. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [August 6, 2018, 12:26pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/22 "2018-08-06T12:26:02Z")
> [@Bone](#): > > No. TSA can detain passengers. TSA can search bags. The search is not considered a 4th amendment search, but rather an administrative search. Like a meat inspector Sure, but if TSA employee says “Sir, can you step into this room so we can search your bags?”, can I just say “No, I don’t think so. I’ll just be leaving out of the airport”? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2018, 12:29pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/23 "2018-08-06T12:29:21Z")
> [@Slash1972](#): > > Sure, but if TSA employee says “Sir, can you step into this room so we can search your bags?”, can I just say “No, I don’t think so. I’ll just be leaving out of the airport”? Yes. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [August 6, 2018, 1:57pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/24 "2018-08-06T13:57:44Z")
> [@Bricker](#): > > Yes. Well, fair enough. I didn’t know that. Thanks! Edited to add: I wonder if drug smugglers know this fantastic rule? Carrying drugs? If they don’t search you, good to go. If they want to search you, just say “No thanks, I’m leaving” ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [August 6, 2018, 2:31pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/25 "2018-08-06T14:31:03Z")
> [@Bone](#): > > Based on this, in the 3rd circuit people have little to no recourse for any mistreatment at the hands of the TSA. They can intentionally assault or otherwise abuse passengers and enjoy sovereign immunity. That is a bad result and should be addressed by Congress. It seems to me that your complaint is that the FTCA doesn’t waive sovereign immunity for a broader class of government employees (at least with respect to intentional torts). I’m not sure we want TSA screeners to be viewed as law enforcement officers (and they really aren’t), but more to the point, the apparent surprise of some of the posters in this thread that SI exists can be just as readily applied to any sufficiently egregious set of facts by any government employee where SI is not waived. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 6, 2018, 2:48pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/26 "2018-08-06T14:48:17Z")
> [@Falchion](#): > > It seems to me that your complaint is that the FTCA doesn’t waive sovereign immunity for a broader class of government employees (at least with respect to intentional torts). I’m not sure we want TSA screeners to be viewed as law enforcement officers (and they really aren’t), but more to the point, the apparent surprise of some of the posters in this thread that SI exists can be just as readily applied to any sufficiently egregious set of facts by any government employee where SI is not waived. TSA personnel are called officers like police. They wear badges like police. They operate screening equipment like is used at the county courthouse operated by sheriffs deputies. They can do pat down searches like police. They can detain you like police. But according to the third circuit, they cannot be construed to be police according to the FTCA. The reason the FTCA allows litigation against the federal government in the case of intentional acts of law enforcement is because law enforcement have a higher duty to know when they should not be doing certain things. This court ruling is essentially saying that these TSA screeners do not have that knowledge. So yes, that is my complaint. I do not think TSA screeners should enjoy sovereign immunity for intentional actions. If a TSA agent punches a passenger in the face just because, they should be able to be held civilly liable. I think the current sphere of legal immunities in the country is problematic and this is just one aspect of it. > [@Bricker](#): > > Yes. This isn’t correct in all jurisdictions. In the 9th circuit for example,[the court has held that: (internal footnotes omitted)](https://caselaw.findlaw.com/us-9th-circuit/1265662.html) > [@](#): > > The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, 92 S.Ct. 1593, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world.  Such a rule would afford terrorists  multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [August 6, 2018, 3:29pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/27 "2018-08-06T15:29:50Z")
> [@Bone](#): > > No. TSA can detain passengers. According to the court, this isn’t really correct. The screeners can request that a person not leave, but to detain someone, they have to call a law enforcement official. Citations in this excerpt are to TSA Management Directive No. 100.4: > [@3d Circuit Opinion](#): > > TSOs may not perform screenings for the purpose of “detect[ing] evidence of crimes unrelated to transportation security.” Id. ¶¶ 4, 6.A(4). If a TSO does discover such evidence, he or she is required to alert a supervisor or a law enforcement official. The TSO can “request” the individual to wait for law enforcement to arrive, but the individual is nevertheless “free to leave the checkpoint once applicable screening requirements have been completed successfully.” Id. ¶ 6.A(4). By contrast, “TSA law enforcement officers,” and only “TSA law enforcement officers,” may engage in law enforcement activities, including investigations, detentions, and searches that “are not limited to administrative or special needs searches.” Id. ¶ 6.D. Basically, the court decided that the exception to sovereign immunity applies only to traditional criminal law enforcement, and that the TSA screeners do not fit. Note: I don’t think your view is at all unreasonable (and I find the whole field of sovereign immunity weird, with the crosscutting exceptions). I’m just trying to boil down where the court disagrees. > [@Snowboarder\_Bo](#): > > How likely is it that the decision would be overturned in that circuit tho? Would a Trump-appointed judge be more likely to uphold or overturn this decision, do you think? Note that these were Democratic-appointees writing both the majority opinion and the dissent (with a Republican appointee joining the majority). It’s hard to make out a partisan slant one way or another in the decision itself. > [@Riemann](#): > > I don’t think the TSA are perceived as the front line of protecting us from scary brown people and Muslims, they treat _white_ people poorly too. Indeed, the racial dynamics of the case do not seem to be far below the surface: > [@3d Circuit Opinion](#): > > As Abdul-Malik prepared to search Pellegrino’s bags, Pellegrino “had the distinct feeling” that Abdul-Malik’s gloves were not clean and asked her to put on new ones. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 6, 2018, 3:48pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/28 "2018-08-06T15:48:16Z")
> [@DavidwithanR](#): > > I don’t understand what happened, but from what’s been said here it sounds like the TSA itself might not be the problem. Why would a court want to protect airport security checkers from prosecution? The holy so-called “Homeland Security”, that’s why. Their overreach and their extrajudicial powers (and their **desire** for extrajudicial powers) need to be eliminated. I don’t think you can absolve the TSA of any responsibility here. They were opposing the plaintiff’s claim in court and raised the sovereign immunity defence; if they hadn’t, the court wouldn’t be ruling on the issue. And, the court is obliged to interpret and apply federal statutes. If the Congress has only granted a narrow exception to sovereign immunity, namely for law enforcement officers, the courts have to determine if the TSA comes within that exception. It’s not that the court wanted to protect the TSA; it’s that the court has to interpret and apply the statute passed by the Congress. ---
**Author:** ![sciurophobic](https://avatars.discourse-cdn.com/v4/letter/s/cab0a1/32.png) [@sciurophobic](https://boards.straightdope.com/u/sciurophobic)\ **Post date:** [August 6, 2018, 8:03pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/29 "2018-08-06T20:03:34Z")
> [@Slash1972](#): > > Sure, but if TSA employee says “Sir, can you step into this room so we can search your bags?”, can I just say “No, I don’t think so. I’ll just be leaving out of the airport”? > [@Bricker](#): > > Yes. Not entirely correct. Yes you don’t have go anywhere, but you aren’t free to leave. Federal appellate courts have ruled there is no “right to leave” airport security checkpoints, under the argument that it would help terrorists find security vulnerabilities. [Do travelers have a right to leave airport security screening areas without the TSA’s permission?](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/06/do-travelers-have-a-right-to-leave-airport-security-screening-areas-without-the-tsas-permission/?utm_term=.98dbc87f9da9) ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [August 6, 2018, 8:18pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/30 "2018-08-06T20:18:25Z")
Well, with the recent ruling about not being law enforcement or whatever, what special powers do TSA employees have to detain a person against their will, as opposed to any other government employee? ---
**Author:** ![Kobal2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kobal2/32/20_2.png) [@Kobal2](https://boards.straightdope.com/u/Kobal2)\ **Post date:** [August 7, 2018, 2:57pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/31 "2018-08-07T14:57:50Z")
> [@Riemann](#): > > It’s basically Obama fondling your genitals. Promises, promises… ☹ ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [August 7, 2018, 4:46pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/32 "2018-08-07T16:46:42Z")
> [@Bone](#): > > TSA agents claim that she bumped or struck them with her luggage while she was trying to exit. She’s a senior citizen mind. There are conflicting accounts of what actually happened, but note that she was 52 at the time of the incident, generally not considered a “senior citizen.” Nonetheless, regardless of the merits of her particular situation, I don’t understand how a court can find federal employees to be immune from being held legally accountable for abusive actions. This case was specifically about TSA but it seems that the relevant law applies to any federal employee. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 7, 2018, 5:01pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/33 "2018-08-07T17:01:39Z")
I thought that sovereign immunity only applied to acts taken in the course of a government agent’s duties. Punching people and stealing their luggage aren’t part of the TSA’s duties, therefore you should still be able to sue them for doing that. ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [August 7, 2018, 5:54pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/34 "2018-08-07T17:54:46Z")
> [@Chronos](#): > > I thought that sovereign immunity only applied to acts taken in the course of a government agent’s duties. Punching people and stealing their luggage aren’t part of the TSA’s duties, therefore you should still be able to sue them for doing that. What acts would be protected by sovereign immunity within the agent’s duties? I mean, if they are acting within their duties, why would anyone want to sue them? Maybe a naive question but I would think the only time you would want to sue them is when they overstep their authority. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 7, 2018, 6:53pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/35 "2018-08-07T18:53:06Z")
> [@Chronos](#): > > I thought that sovereign immunity only applied to acts taken in the course of a government agent’s duties. Punching people and stealing their luggage aren’t part of the TSA’s duties, therefore you should still be able to sue them for doing that. That turns sovereign immunity into no more than a defence. Plaintiff: he stole my bags! TSA agent: I found coke in it and seized it as evidence of an offence. So if there’s no sovereign immunity, it has to go to court. If the agent’s right, the action gets dismissed. If the agent is proven wrong, the plaintiff might win. But that’s no different from a defence of statutory authority. It’s not sovereign immunity from suit. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [August 7, 2018, 6:59pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/36 "2018-08-07T18:59:20Z")
> [@Chronos](#): > > I thought that sovereign immunity only applied to acts taken in the course of a government agent’s duties. Punching people and stealing their luggage aren’t part of the TSA’s duties, therefore you should still be able to sue them for doing that. If you limited sovereign immunity to only acts that were proper, you wouldn’t need sovereign immunity, you would just win on the merits, wouldn’t you? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 7, 2018, 7:17pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/37 "2018-08-07T19:17:49Z")
> [@CookingWithGas](#): > > There are conflicting accounts of what actually happened, but note that she was 52 at the time of the incident, generally not considered a “senior citizen.” You’re right. Math error on my part, not sure how that happened. > [@](#): > > Nonetheless, regardless of the merits of her particular situation, I don’t understand how a court can find federal employees to be immune from being held legally accountable for abusive actions. This case was specifically about TSA but it seems that the relevant law applies to any federal employee. That’s the entire point of sovereign immunity - all federal employees enjoy it unless it is waived. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 7, 2018, 9:21pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/38 "2018-08-07T21:21:58Z")
If the TSA singled me out for extensive extra screening, and as a result of that extensive extra screening I missed my flight, despite showing up at what should have been a reasonable time, that’s something that I might want to sue over. But the extra screening was within the scope of their duties, so that’s where I would expect sovereign immunity to protect them. And I suppose that you could squeeze stealing luggage in there, if they called it “confiscation” and claimed that they suspected contraband. But I’d expect to be able to challenge that immunity if it turned out that the agent was using my suitcase for his own personal use, because that’s not what’s done with confiscated evidence. But someone upthread mentioned them taking a dump in your bag, and there’s no conceivable way that could be construed as their duty, so I would expect that immunity wouldn’t apply at all there. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [August 8, 2018, 2:55pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/39 "2018-08-08T14:55:44Z")
> [@Chronos](#): > > If the TSA singled me out for extensive extra screening, and as a result of that extensive extra screening I missed my flight, despite showing up at what should have been a reasonable time, that’s something that I might want to sue over. But the extra screening was within the scope of their duties, so that’s where I would expect sovereign immunity to protect them. > > And I suppose that you could squeeze stealing luggage in there, if they called it “confiscation” and claimed that they suspected contraband. But I’d expect to be able to challenge that immunity if it turned out that the agent was using my suitcase for his own personal use, because that’s not what’s done with confiscated evidence. > > But someone upthread mentioned them taking a dump in your bag, and there’s no conceivable way that could be construed as their duty, so I would expect that immunity wouldn’t apply at all there. I think that the issue is twofold. First, the TSA screeners presumably deny the allegations and, in fact, claim that they did not do anything wrong. Since immunity is supposed to protect you from suit, and not just liability, I’m not sure how else you handle the situation. (As it stands, DOJ is supposed to investigate and certify whether you not they believe you were acting within the scope of your office). It creates an potentially unfair system where, because the suit is dismissed at the outset, you can’t prove that the person was, in fact, acting outside of the scope of their office. Second, the notion of “scope of office” seems to draw heavily on the traditional employer-employee liability regime where we (as a society) wanted a broad definition of scope of employment, because employers had deeper pockets and would be a more reliable source of recovery if you were harmed by an employee. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 8, 2018, 3:48pm UTC](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064/40 "2018-08-08T15:48:18Z")
> [@Chronos](#): > > But someone upthread mentioned them taking a dump in your bag, and there’s no conceivable way that could be construed as their duty, so I would expect that immunity wouldn’t apply at all there. That was me. They can also punch you in the face for no reason and be immune from civil liability, at least according to the reasoning here in the third circuit. This is because the default is as federal employees the federal government etc. enjoys sovereign immunity from lawsuit. If there were no exceptions, then that would be the end of it. The FTCA was passed in 1946 as a limited waiver of sovereign immunity - basically granting permission for people to sue the federal government. But within the FTCA, the law does not waive immunity in certain circumstances, essentially retaining sovereign immunity. Those are itemized in [28 USC § 2680.](https://www.law.cornell.edu/uscode/text/28/2680)Exceptions to the Federal Tort Claims That section reads: > [@](#): > > The provisions of this chapter and section 1346(b) of this title shall not apply to– > > … > > (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law. So, the FTCA does not apply to claims of assault, battery, false imprisonment, false arrest, malicious prosecution…etc. There is no duty to falsely arrest or batter you, but they are immune from civil damages for those actions as well. That is, unless they are “investigative or law enforcement officers”. [Previous page](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064.md?page=1) [Next page](https://boards.straightdope.com/t/court-rules-tsa-enjoy-sovereign-immunity/819064.md?page=3)