TSA Hit a Man in the Groin During Screening Then Argued He Shouldn’t Be Able to Sue

Last month the US District Court for the Eastern District of Virginia (the original so-called ‘rocket docket’) ruled in Linlor v. Polson that individuals may have a private right of action for constitutional rights violations at the security checkpoint, over objections from the TSA.

As a result a man who says a TSA screener “rammed his hand” into the man’s genitals, causing the passenger to “bend over and step away in pain,” during a screening that was the result of opting out of naked imaging at Washington Dulles airport in March 2016 may seek damages based on excessive force. (HT: Eugene Volokh)

Plaintiff alleges that Defendant took this action out of anger, either intentionally or recklessly, and that Defendant subsequently laughed and refused to apologize.

Police were summoned after Plaintiff complained of “aggravated sexual battery,” but the police officers refused to take any action against Defendant.

Defendant’s coworkers stone-walled Plaintiff when he attempted to gather the names of witnesses.

The question at law is whether an individual can sue a federal official who violates their constitutional rights. The ability to sue federal law enforcement officials is highly limited.

The precedent is Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) but courts are reluctant to extend Bivens into new contexts especially where the government provides another “process for protecting the interest” of the individual.

The TSA made a series of arguments which range from offensive to absurd and the decision was explicit that “the Court has little difficulty concluding that the alternatives suggested by Defendant are no alternatives at all.”.

  • The TSA argued that instead of suing for damages, the passenger should “have filed a petition for review of those procedures in an appropriate court of appeals pursuant to 49 U.S.C. § 46110”

    However the Court wasn’t fooled, pointing out that the man wasn’t seeking review of TSA procedures or review of an order issued by an aviation authority. The whole point was to challenge a discrete instance of abuse which could not have been lawfully authorized by TSA.

    Defendant’s alleged use of excessive force in intentionally and gratuitously striking Plaintiff’s groin. Plaintiff seeks compensation for a past wrong, not prospective relief from considered agency action. The statute Defendant cites is simply inapplicable to the case at bar.

  • TSA says the passenger should have complained through the agency’s own contact center. Since they offer a contact center as a means of redress, there shouldn’t be a right to sue.

    The court didn’t find that to be ” a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.”

    [T]his is, essentially, a consumer complaint hotline. It is not clear what, if any, relief a complainant may receive. It appears that the “Contact Center” affords individuals only the bare opportunity to make the TSA aware of a complaint.

  • But ‘national security’ to which the Court replied invoking those words is not license to take any action desired without review or redress. Indeed, the TSA failed to explain to the court how a TSA agent hitting a man in the groin is a national security issue.

    How punching a man in the groin is related to national security is, indeed, a mystery.

  • You can’t sue the TSA. It’s often the case that the government says you cannot sue it, but Courts have held that “qualified immunity” doesn’t apply when violating a clearly established constitutional right.

    The TSA knows this, but suggests the court just consider that “the intrusiveness during the standard pat-down screening procedure was minimal” and not look to the “hand ‘ramming’.”

At this point the Court assumes for the sake of argument that the facts presented by the passenger are true. They haven’t made a judgment on those facts. They’ve simply argued that if true, the passenger can sue.

That this was even an issue, and that the TSA disagreed, is the shocking part.

Of course this incident occurred a year before TSA decided that all pat downs should become more ‘intimate’ so that screeners wouldn’t have to think so hard about when to apply more rigorous pat downs. And it’s before the TSA developed the argument that it’s not sexual assault when the government does it.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. TSA – Stands for Trained in Sexual Abuse?

    Generally I am the one to defend law and security enforcement, knowing how tough their jobs are and how retarded the rules are that they have to follow. But lets see the fail to stop 90% of all illegal items from onto aircraft to include guns and knives. They love the nude o scope and whenever I fly I see screeners that are obese, lazy, incompetent and as forest would say “stupid is as stupid does” practices.

    This is good, I hope the person gets sued and the police get sued for failing to do their duty and arrest the idiot

  2. TSA’s position is not shocking to me at all. Big corps and governmental entities generally float every possible defense, whether or not supported by any facts or law, and see if anything sticks. Way too often something does.

  3. I thought american people were smart. They let their choosen government take their hard-earned-money from them in form of taxes, to pay the salaries and facilities of people who supposed to them service, instead they got TSA.
    Sure, there are numbers of bad police officers and those who shoot innocent people. But police do catch bad guys. Prevent robbers, etc. Now, what TSA has done? Catching terrorist? Plane hijackers? Lol….

  4. That video is really funny. Too bad the TSA agents don’t look as good as the ones in the video.

  5. @TAB,

    I believe the failure rate is 94% or 95%.

    Your baby’s formula will be confiscated, but a nuclear warhead will sail right past them. They’ve thwarted not one single terrorist, but hundreds of them have been arrested for theft. I’m ready to call it. The TSA is worse than useless. Hand the responsibility for security over to the airlines who have an interest in streamlining the entire shit show that is airport security.

  6. Passenagers given the abilty to “sue” officers is so ridiculous. Tsa officers cannot sue management when they are abused by, bullying, favoritism, slander with public humiliation. When you do take action thru the proper channels, you are called a trouble maker who has lied. Even with 100’s of pages of documentation and witnesses. But they didnt ignore the situation.they promoted all involved to other divisions of TSA. With a healthy pay raise. Not 1 lawyer in the entire state of New York that will handle a Workmens Comp. Case against them.
    So when a passenager who is making a suggestion of retaliation? What did he do to the officer to think he was retaliated against? Someday just take the time and watch what an tsa officer has to put up with. Do you know how many times they have to explain what a liquid, lotion, or gel is?

  7. @Lj Randall – I have flown a fair amount and I have yet to see anyone giving TSA a hard time. And as far as “Do you know how many times they have to explain what a liquid, lotion, or gel is?” goes, well, that. is. their. job.

  8. “Lj Randall says: August 8, 2017 Passenagers given the abilty to “sue” officers is so ridiculous. Tsa officers cannot sue management when they are abused by, bullying, favoritism, slander with public humiliation. ”

    Just because you are in an abusive relationship does not give you the right to abuse me…

  9. TSA cowardly refuses to use the word “genitals” or “genital area” when describing the “pat down” procedure. Instead, they use the word “groin” or “groin area”; the groin and the genital area, especially on women, are two separate and distinct areas of the body. If the TSA does not inform you that they will be touching your genitals, then the “pat down” has become sexual abuse. You cannot consent when you do not know what is going to happen to you.

    How many “dangerous items” has TSA ever found while sexually assaulting passengers? In it’s weekly recap of the weapons found at checkpoints, they NEVER report the discovery of items that would put an aircraft or passengers in danger. I guess that’s because they NEVER find any but the sexual assaults continue unabated.

    Here’s a video of a young man having his genital area jabbed hard because he opted out of the whole body scanner. Good for him for opting and recording the “pat down”.

  10. Tj Randall: “Tsa officers cannot sue management when they are abused by, bullying, favoritism, slander with public humiliation.” Therefore, TSA screeners take their anger out on passengers. Is that what you did when you were employed by TSA?

  11. Susan Richart i watched that video you posted I didn’t see that young man get jabbed at all in fact they both seemed to get along well was that the correct link?

  12. A few more details:
    – the passenger who was hit was an off-duty airline captain (not in uniform, but showed his crew ID so this was known to the TSA screener, who apparently had a chip on his shoulder and is jealous of airline crews)
    – after the TSA nutjob (no pun intended) hit the off-duty pilot in the genitalia, the pilot asked the TSA screener to apologize 3 times. Apparently the TSA screener and the screener’s supervisor both laughed and claimed they had immunity
    – the pilot called the Dulles airport (MWAA) police, and in front of them, the pilot *citizen’s arrested the TSA screener*!!! (the police ID’d the screener as Michael Polson of Odenton, Maryland) for felony sexual battery
    – the screener is being sued, and the case was granted an extension of Bivens for the obvious civil rights 4th Amendment violation. The pilot (captain) apparently has the smarts, resources, and principles to see this through. It was written up in the Washington Post so far because this case is so fundamental, and the pilot was clearly no threat, that this may set national precedent for pax to be able to sue individual TSA screeners in the future. This is the first case authorized like this, ever, against the TSA. Everyone else has failed, but I think when a captain asks you to apologize, it woukd have been a good idea for the TSA to obey.
    – the DOJ is providing free legal representation to the TSA screener even though hitting passengers in the genitals obviously isn’t part of the TSA SOP handbook.
    – it was a valid citizen’s arrest of the screener, which I guess the captain knew how to do. TSA is now having to explain why they have covered up this arrest, and refused to prosecute the screener internally. Since the pilot can also read SSI (security files) the TSA has a problem and can’t hide evidence. They picked on the wrong guy, but he’s apparently also a champion for pax civil rights. Go Captain!

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