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On The Front Lines

Sidestepping Debate, Appeals Court Dismisses Airline Passenger, Pilot Lawsuit Over Scanners, Virtual Strip Searches & Full-Body ‘Rub-Downs’

WASHINGTON, DC — The D.C. Court of Appeals has rejected an appeal by The Rutherford Institute on behalf of airline pilots and passengers who refused to submit to virtual strip searches involving advanced imaging technology or submit to highly invasive pat-down searches during which TSA agents may go so far as to reach inside a traveler’s pants. Institute attorneys sought reversal of District Court judgments in Fourth Amendment lawsuits filed in 2010 against Janet Napolitano, secretary of the Department of Homeland Security, and John Pistole, administrator of the Transportation Security Administration (TSA), challenging the constitutionality of the TSA’s airport security screening policy. The District Court dismissed the cases on the grounds that under a federal statute, it had 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 requiring that the D.C. Court of Appeals hear any reviews of TSA procedures. Insisting that the order contains “sensitive security information,” the government has yet to make public the document embodying the TSA enhanced screening procedures. The Court of Appeals affirmed the lower court’s dismissal. 

The complaints in Durso v. Napolitano and Roberts v. Napolitano are available here and here.

“This ruling does not bode well for attempts to ensure transparency in government or efforts to safeguard Americans against virtual strip searches and other excessive groping of our bodies by government agents, especially when there’s no suspicion of wrongdoing,” said John W. Whitehead, president of The Rutherford Institute. “When civil liberties are tossed out the window—by government agents or by the courts—we all lose. No American should be forced to undergo a virtual strip search or be 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.”

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 Napolitano and 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 whole-body scanning or be subjected to a full pat-down frisk 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 in Pennsylvania is assisting The Rutherford Institute with the lawsuit. 

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