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On The Front Lines

Rutherford Institute Appeals Dismissal of Airline Passenger, Pilot Lawsuit Against DHS & TSA Over Scanners, Virtual Strip Searches & Full-Body ‘Rub-Downs’

WASHINGTON, DC — Attorneys for The Rutherford Institute have filed a brief with the D.C. Court of Appeals on behalf of airline pilots and passengers who have raised Fourth Amendment objections to airport screening procedures that amount to virtual “strip searches” and full body groping. Institute attorneys initiated the legal challenges to the Transportation Security Administration’s (TSA) airport security screening policy in federal district court in 2010. However, the cases were dismissed on the grounds that the court has no jurisdiction in TSA matters.

In justifying the dismissal, U.S. District Court Judge Henry H. Kennedy, Jr. cited a “secret” order issued by the TSA as the basis for ruling that the D.C. Court of Appeals must hear any challenge to TSA procedures. Insisting that the order contains “sensitive security information,” the government has yet to make public the document outlining the TSA enhanced screening procedures. In their Court of Appeals brief, Institute attorneys point out that since the TSA “order” is secret, has never been released by the government, and no opportunity was afforded for public comment on it, the passengers and pilots are not only being deprived of their Fourth Amendment rights but also their due process right to a fair hearing on their challenge to the secret TSA policy.

The combined brief for Durso v. Napolitano and Roberts v. Napolitano is available here.

“No American should be forced to undergo a virtual strip search or subjected to such excessive groping of the body as a matter of course in reporting to work or boarding an airplane when there is no suspicion of wrongdoing,” said John W. Whitehead, president of The Rutherford Institute. “To do so violates human dignity and the U.S. Constitution, and goes against every good and decent principle this country was founded upon.”

Insisting that Americans do not shed their privacy rights when entering an airport or boarding a plane, The Rutherford Institute filed Fourth Amendment lawsuits in federal court in 2010 against Janet Napolitano, secretary of the U.S. Department of Homeland Security (DHS), and TSA Administrator John Pistole on behalf of airline pilots and passengers who were subjected to invasive body searches by TSA agents under the agency’s enhanced screening and pat-down procedures. Adrienne Durso, a recent breast cancer survivor, was repeatedly and aggressively groped by TSA agents in the area where she had undergone a mastectomy, even after informing agents of her condition. Chris Daniels, a frequent business traveler, was aggressively and repeatedly touched in his genital area after initial screening showed an abnormality in his genitals that was the result of a childhood injury. When Daniels asked to leave the security area and forego flying rather than submit to the intimate groping, he was told that he was not free to leave and would have to submit to the enhanced pat-down. The pilots, Michael Roberts and Ann Poe, in two separate incidents taking place in 2010, were on their way to work when told by TSA screeners they must submit to AIT (Advanced Imaging Technology) scanning or be subjected to full pat-down frisks of their persons. Upon refusing, both pilots were prevented from passing through security, and unable to report to work on the days in question.

In dismissing the lawsuits, U.S. District Court Judge Henry H. Kennedy, Jr. relied upon a statute giving the D.C. Court of Appeals “exclusive jurisdiction to affirm, amend, modify or set aside” an order of the Administrator of the TSA. Affiliate attorney Jason Gosselin of the Drinker Biddle Reath law firm is assisting The Rutherford Institute with the lawsuits.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated. 


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