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Brief #49—Civil Rights

Policy Summary
On July 11, 2018, the United States Court of Appeals for the Third Circuit issued an opinion in Pellegrino v. Transportation Security Administration. The case began in 2006 when Nadine Pellegrino and a friend stopped at Philadelphia International Airport on their way back home to Florida. Ms. Pellegrino went through security with three bags. A transportation security officer (TSO) began to search her bags but Ms. Pellegrino was not happy with the search and requested a private screening. When another TSO began to search her bags, Ms. Pellegrino asked the TSO to change her gloves because she suspected they were dirty. The TSO complied but from then on the situation in the room became hostile. Ms. Pellegrino claims that the continued search of her bags were extremely rough and invasive – a search was even conducted into her cell phone, credit cards and lipstick. Once the search was completed, Ms. Pellegrino asked the TSO to leave the items out so she could re-pack her bags herself. The TSO refused and proceeded to re-pack her bags in the same rough manner but did not complete the task and eventually refused to finish packing Ms. Pellegrino’s bags. Ms. Pellegrino then took her items, tossed them outside the screening room and proceeded to leave. The two TSO’s in the room claimed that Ms. Pellegrino took her bags and struck a TSO with her bag as she was leaving the room. Ms. Pellegrino denies striking a TSO with her bags at any time. Philadelphia police officers were called to the airport where they arrested Ms. Pellegrino and held her for eighteen hours before releasing her. Ms. Pellegrino was charged with ten criminal counts but was eventually found not guilty due to testimony being deemed inadmissible. Ms. Pellegrino then brought a civil action in the Eastern District of Pennsylvania against the U.S., the Transportation Security Administration (TSA) and three of the TSO’s who searched her. With the exception of one count of property damage that was settled, the court ruled against Ms. Pellegrino on all actions. Ms. Pellegrino appealed. The United States Court of Appeals for the Third Circuit ruled 2 – 1 in favor of the Government to uphold the district court rulings against Ms. Pellegrino. LEARN MORE, LEARN MORE

Analysis
The lengthy decision by the Court of Appeals is a curious one and one that has the potential to lead to unwanted consequences. In its opinion, the court’s reasoning turned on how a transportation security officer was classified. Under the Federal Tort Claims Act (FTCA), the federal government and its employees are immune from civil or criminal liability under the doctrine of sovereign immunity except in specific circumstances. Under one of these exceptions “investigative or law enforcement officers” can be held liable and sued for actions such as an assault or a false arrest. However, Judge Cheryl Ann Krause’s opinion said that TSA agents were only “screeners” and not “investigative or law enforcement officers” as defined in the Federal Tort Claims Act. Thus, their searches of travelers was deemed only an “administrative” search that was not based on probable cause or suspicion, standards that an investigative or law enforcement officer would use as a basis for a search. Thus, TSA agents could not be sued under the Federal Tort Claims Act.

Judge Thomas L. Ambro’s dissenting opinion noted that this type of search of travelers is no different from when a police officer pulls over a driver for a traffic stop. He also pointed out that if people are not allowed to sue TSA agents under the Federal Tort Claims Act then people would not have a legal remedy for even the most extreme TSO behavior such as sexual assault and a fabricated criminal charge against a traveler. While the legal analysis of the decision seems somewhat rigid, it is clear that Congress never intended for a legal scheme where a person would have no legal remedy whatsoever. The FTCA itself preserves the doctrine of sovereign immunity but still has limited exceptions for people to bring suit. The flaws illustrated by this case dictate that Congress needs to act and act soon to fix the FTCA so travelers and TSO’s will know the legal limits of how a traveler can be physically treated when subject to a search at an airport. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

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