D.Ariz.: Airport TSA “screenings” are “searches” within the Fourth Amendment and the FTCA

Airport TSA “screenings” are “searches” within the Fourth Amendment and the FTCA because they can search people and their belongings and then seize things. Here, however, plaintiff doesn’t state a claim. Armato v. Jane Doe 1, 2012 U.S. Dist. LEXIS 190080 (D. Ariz. May 15, 2012):

The FTCA defines “investigative or law enforcement officers” as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h). This definition is disjunctive, meaning TSA agents qualify as “investigative or law enforcement officers” if they are empowered by law to perform any of the three tasks. See Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) (“[T]he use of a disjunctive in a statute indicates alternatives and requires that they be treated separately.”). The parties do not argue that TSA agents have the power to seize evidence or make arrests. Instead, Plaintiff argues TSA agents are “empowered by law to execute searches.” Defendants argue TSA agents do not have such authority, but this argument is foreclosed by both statute and case law.

Pursuant to statute, the “Under Secretary of Transportation for Security shall provide for the screening of all passengers and property … that will be carried aboard a passenger aircraft.” 49 U.S.C. § 44901. When a flight originates in the United States, “the screening shall take place before boarding and shall be carried out by a Federal Government employee.” Id. This has been interpreted as providing the statutory authorization for airport screenings. United States v. Aukai, 497 F.3d 955, 961 (9th Cir. 2007).

Defendants seem to believe that these “screenings” are somehow different from “searches,” but they do not provide any sensible explanation for this position. And, in fact, this position is directly contrary to a number of Ninth Circuit decisions. See, e.g., United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005) (“Airport screenings of passengers and their baggage constitute administrative searches and are subject to the limitations of the Fourth Amendment.”). Based on well-established law, airport screenings are searches. Because there is no dispute that TSA agents are authorized by statute to conduct “screenings,” and “screenings” are “searches,” there is no question that TSA agents are “empowered by law to execute searches.” In attempting to avoid this straightforward conclusion, Defendants cite a number of district court cases concluding otherwise. But those cases either rely on an inaccurate view of the nature of airport screenings or turn to legislative history to avoid the plain language of the statute.

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In light of the statutory authorization for airport screenings, and recognition that such screenings qualify as “searches,” TSA agents qualify as “investigative or law enforcement officers” under the FTCA. Therefore, TSA agents may be sued under the Federal Tort Claims Act and the Court must determine whether Plaintiff has pled sufficient facts to support each of her claims.

Accord: Pellegrino v. United States Transp. Sec. Admin., 2014 U.S. Dist. LEXIS 52468 (E.D. Pa. April 16, 2014).