Plaintiff has a metal hip implant, and she sets off TSA’s screening machines. This results in her getting a patdown. The court concludes that, on the whole, a patdown is reasonable under the Fourth Amendment and the ADA even if it’s caused by an implant vs. some other object on the body. [Here is the law of TSA searches, if you care to indulge.] Ruskai v. Pistole, 2014 U.S. App. LEXIS 24350 (1st Cir. December 23, 2014).
A variation on the effectiveness theme is Ruskai’s argument that the screening SOP is, essentially, irrationally underinclusive, and so cannot be considered a reasonably effective tool for combating transit terrorism. If TSA were patting down most every passenger when AIT [the nude] scanners are not available, the foregoing discussion would likely lead easily to the rejection of Ruskai’s Fourth Amendment claim. TSA does not, however, pat down most passengers when AIT scanners are not available. To the contrary, most passengers who clear the WTMDs, which search only for metal, board airplanes without any further search of their person. The resulting and significant underinclusiveness of TSA’s use of pat-downs raises two questions: Why does TSA not pat down most passengers at checkpoints lacking AIT scanners or PreCheck? And given that it does not, why does TSA pat down any passengers (e.g., Ruskai)? These questions capture the core of Ruskai’s argument.
The answer to the first question appears to be that the prospect of patting down all or most passengers individually is like the prospect of stopping all cars on all roads at sobriety checkpoints: The scale of the operation generates collateral costs that are not present when a subset of travelers is searched. In an airport, that cost would naturally include a large expense in manpower and much longer lines and delays.
As for the second, more difficult question, TSA has two reasons to search those passengers who trigger a WTMD alert for both metallic and nonmetallic weapons, even though it does not search passengers who do not trigger a WTMD alert for nonmetallic weapons. First, since it must search such passengers for metallic weapons anyway, searching them for nonmetallic weapons as well offers an incremental benefit with low incremental cost. Second, TSA has an efficiency interest in training its personnel in a limited number of techniques, and pat-downs are the primary alternative to AIT scanners.
Ruskai does not argue that no one should be screened by a standard pat-down. Rather, she says that the standard pat-down should only be employed when there exists a suspicion that the particular person to search may pose an atypical risk of having a nonmetallic weapon. In our view, in the context of administrative or special needs searches, the Supreme Court has not required the degree of precision tailoring advocated by Ruskai. Take, for example, Earls, 536 U.S. at 836-37. There, the Court rejected a Fourth Amendment challenge to a requirement that middle and high school students submit to a urine drug test in order to engage in extracurricular activities. The Court rejected the argument that such tests could only be given on individualized suspicion, or after the school demonstrated that there was a drug problem of some type among the group chosen to be tested. Id. Rather, it relied on the contention that “the safety interest furthered by drug testing is undoubtedly substantial for all children,” and concluded that “testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District’s legitimate concerns in preventing, deterring, and detecting drug use,” notwithstanding the suggestion that the policy may have been overinclusive. Id. at 836-38.
We acknowledge that Earls is not on all fours with this case–there, the Court specifically relied on the custodial responsibilities of a public school, and characterized the search as negligibly intrusive. Id. at 830, 833; cf. Hartwell, 436 F.3d at 178 n.7 (suggesting that the “special needs” search at issue in Earls was distinct from administrative searches at airports). We nonetheless find its guidance instructive, and note that while the search here is undoubtedly more intrusive, given the scale of the risk, the safety interests at stake are also dramatically more acute. Cf. MacWade, 460 F.3d at 269 (discussing Earls and noting that the Supreme Court “never has implied–much less … held–that a reduced privacy expectation is a sine qua non of special needs analysis” and so rejecting the proposition that a search of baggage on the subway is only permissible where the traveler has a diminished expectation of privacy). Moreover, since the government “may deal with one part of a problem without addressing all of it,” Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 (1975), “[t]he Supreme Court has been skeptical of challenges to the constitutionality of searches under the Fourth Amendment that suggest that a security policy’s randomness or insufficient thoroughness contributes to its constitutional deficiencies.” Cassidy, 471 F.3d at 86.
In sum, precedent teaches that a school can conduct administrative searches for drugs by requiring urine tests of fewer than all students who might be equally prone to use drugs, and police may conduct sobriety checkpoints on one road while not stopping drivers on most others. So too, here, the fact that TSA searches only some passengers for nonmetallic weapons where it lacks an AIT scanner does not render the searches unconstitutional. And this is particularly so where TSA has a reasonable explanation for why it searches for nonmetallic weapons on persons it must search anyhow.
Clearly, neither Congress nor TSA finds the current underinclusiveness in screening passengers for nonmetallic weapons to be acceptable in the long run–hence TSA’s ongoing expansion of, among other things, AIT deployment. The cost being incurred to install AIT scanners, for example, makes concrete the very substantial weight assigned by Congress to the threat of nonmetallic explosives. And, as discussed above, even though pragmatic and efficiency considerations may outweigh (in TSA’s judgment) its interest in screening every non-AIT-screened passenger for nonmetallic weapons, there is no dispute that TSA will have to conduct some follow-up search on individuals who cannot or do not pass through a WTMD without setting it off. TSA thus adequately explains the underinclusive nature of its use of standard pat-downs in a manner that does not belie the justifications cited for conducting the search.
