Travelers May Sue TSA for Abuse of Power per Third Circuit

Lawsuit Claiming TSA Abuse of Power May Proceed

Can Travelers Sue TSA Officers over Complaints of Abuse of Power? Until recently, the answer was no. But that changed August 30, 2019 with a 3rd Circuit Court of Appeals en banc decision that held that a plaintiff's lawsuit may proceed against Philadelphia TSA officers who allegedly damaged her property, falsely accused her, and had her imprisoned. Now, it's probably just a coincidence, but this case caught my eye not only for its landmark ruling, but also because it involved Philadelphia TSA officers–PHL is the only U.S. airport where we've had a truly horrible TSA experience. See Rude TSA Officer: What Are Your Rights?

But back to the case. The woman, Nadine Pellegrino, was arrested following an altercation with TSA agents at Philadelphia International Airport in 2006. She and her husband were flying home to Florida, when she was flagged for further screening, together with her luggage. She took issue with the TSA's rough handling of her and her luggage. Subsequently, she requested private screening, and was led into an examination room with three female agents.

According to Pellegrino's complaint, among other things, the female agents counted her coins and currency, opened and smelled her cosmetics, analyzed the front and back of her credit cards and membership cards, and spilled several containers, also damaging some of Pellegrino's jewelry and her eyeglasses. Irate, Pellegrino told the TSA officers that she would report them to a supervisor. Since the TSA Officers had left her bags in a mess, Pellegrino had to repack items, in the course of which the TSA officers claimed that Pellegrino struck them with her bag. As a result of their allegations, Pellegrino was arrested by Philadelphia police officers and kept for 18 hours before being released on bond, and ten charges were filed against Pellegrino, including for aggravated assault, possession of instruments of a crime (her luggage) and for making terroristic threats.

At a preliminary hearing, most of the charges were dismissed, and the remaining ones later dismissed when the TSA failed to produce surveillance video of the alleged incidents, one of the TSOs failed to appear, and another produced self-contradictory testimony. Ultimately the trial court acquitted Pellegrino.

In 2008 Pellegrino brought suit in the Eastern District of Pennsylvania for property damage, false arrest and false imprisonment, malicious prosecution and other claims. The District Court denied Pellegrino and granted summary judgment for the TSA defendants, on the basis that TSA officers are not “investigative or law enforcement officers” that would expose the United States government to liability. In general, the U.S. Federal Government and its agencies are immune from lawsuits. One of the exceptions to this general immunity is the “law enforcement proviso” that waives government immunity for certain intentional torts committed by “investigative or law enforcement officers” who are defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violation of Federal law.”

After losing in District Court, Pellegrino appealed to the 3rd Circuit Court. This is where it gets interesting. Most Circuit Courts divide into smaller panels, in order to cover more cases, so initially, only a 3 judge panel heard Pellegrino's appeal in 2018. Two of the judges agreed with the District Court, denying Pellegrino's suit and affirming that TSA officers only conduct “administrative” searches of everyone that comes through a security checkpoint, as opposed to the targeted searches of an individual that are carried out by law enforcement officers. One of the three Circuit judges, Judge Thomas L. Ambro, disagreed with his two colleagues, however, and in his dissent pointed out that TSA searches are far more invasive than administrative searches, since they can include a traveler's physical person, via a pat down search. And the majority opinion left travelers with no recourse, even a TSA officer assaulted, wrongfully detained them, or fabricated criminal charges against them.

After losing in the Circuit's Panel hearing, Pellegrino and her lawyers requested an en banc hearing of the entire 14 judge Circuit which was granted, and held February 20, 2019, where 13 judges were present, although the decision was only filed August 30, 2019. The en banc Court of Appeals for the Third Circuit reversed the 2018 panel 9-4, with Judge Ambro writing the majority opinion, finding that TSO screenings fall within the proviso that waives Federal immunity to lawsuit, due to their more personal nature than traditional administrative searches, which includes searches for items that contravene federal law. The majority also pointed out that in 2015, <200 passengers, of some 700 million passengers screened, filed complaints alleging harm that would fall within the scope of the proviso that waives federal immunity.

Have you ever lodged complaints against TSA Officers, and if so, for what?

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