Court: TSA agents are not law enforcement officers and are shielded from civil tort claims

By Nicholas Malfitano | Jul 16, 2018

PHILADELPHIA – Air travelers who feel Transportation Security Administration (TSA) officers conduct screenings a bit too close for comfort and pursue lawsuits in response might now find those agents are immune from such claims, given the first ruling from a federal appellate court on the matter.

On July 11, U.S. Court of Appeals for the Third Circuit judges Thomas L. Ambro, Cheryl Ann Krause and Anthony J. Scirica released a ruling finding favor with the TSA in a lawsuit first filed by plaintiffs Nadine Pellegrino and Harry Waldman of Boca Raton, Fla.

Through a 2-1 vote, the Court’s majority ruling states TSA officers receive sovereign immunity and protection from liability under the Federal Tort Claims Act, since they are not defined as “investigative or law enforcement officers.”

Judges Krause and Scirica were in majority agreement, while Judge Ambro dissented.

Plaintiffs Pellegrino and Waldman brought suit against a trio of TSA officers, aviation security defendants and John/Jane Doe representatives of the TSA in 2009 for charges of false arrest, false imprisonment and malicious prosecution, in connection with a July 2006 incident at Philadelphia International Airport.

Before stepping on board a US Airways flight to Fort Lauderdale, Fla., Pellegrino asked for a private screening at the airport in Philadelphia, due to her feeling that her and her luggage were not being treated with care or respect by TSA officials.

Subsequent to an additional private screening that Pellegrino found to be “invasive," an altercation ensued which resulted in Philadelphia police officers being called to the scene and Pellegrino being arrested. After 18 hours, Pellegrino posted bond and was released from jail.

The Philadelphia District Attorney’s Office filed 10 charges against Pellegrino: Two counts each of felony aggravated assault, possession of instruments of a crime, reckless endangerment, simple assault, and making terroristic threats.

But by the time the criminal matter proceeded to trial in Philadelphia Municipal Court in March 2008, the TSA officer said to have been in the altercation with Pellegrino did not appear. Leaving no eyewitnesses or related testimony, the trial judge entered a verdict of not guilty. In July 2008, Pellegrino submitted a claim to the TSA concerning the officers’ alleged misconduct and requested $951,000 in damages – a claim denied nearly a year later.

Pellegrino and Waldman filed a civil lawsuit in the U.S. District Court for the Eastern District of Pennsylvania in November 2009 on numerous counts, which were later dismissed apart from those addressed by the Federal Tort Claims Act, false arrest, false imprisonment and malicious prosecution.

Since the FTCA outlines that “absent a waiver, sovereign immunity shields the federal government and its agencies from suit” – with certain exceptions: One of those being an exception for law enforcement officers, such 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.”

Ultimately, the plaintiffs’ claims were defeated in the District Court.

“The District Court granted summary judgment on those claims on the ground that TSA screeners are not covered by the FTCA’s law enforcement proviso because they are not ‘empowered by law to execute searches…for violations of federal law,” Krause said.

Pellegrino later appealed to the U.S. Court of Appeals for the Third Circuit, arguing that the TSA officers were in fact subject to liability.

Representing the majority, Krause stated, “Amicus [briefs] argue that TSOs must qualify as ‘law enforcement officers’ because of their title – they are ‘transportation security officers’ –and because they wear a badge that labels them as ‘officers.’ We are not persuaded that the word ‘officer’ has this talismanic property, and it would be surprising indeed if such a superficial gloss were sufficient to trigger a waiver of federal sovereign immunity.”

“TSOs, like most administrative employees, do not receive training on the specific constitutional doctrines and legal standards relevant to assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution – the torts covered by the law enforcement proviso” and which are “largely irrelevant” to the officer’s job.

Krause and Scirica’s opinion was that TSA officers perform searches that are “administrative” rather than “criminal”, but admitted this decision leaves air passengers with legal grievances against the TSA with “very limited legal redress”.

“For most people, TSA screenings are an unavoidable feature of flying, and they may involve thorough searches of not only the belongings of passengers but also their physical persons – searches that are even more rigorous and intimate for individuals who happen to be selected for physical pat-downs after passing through a metal detector or imaging scanner,” Krause said.

Based on the point of limited legal redress, Krause added Congress may deem it necessary to provide additional recourse for passengers alleging tort claims against TSA officers.

“But such policy judgments, particularly as they relate to sovereign immunity and the public, fall squarely in the realm of the legislative branch,” Krause said.

However, Ambro dissented on the nature of the TSA officer searches.

“Their decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them. All of this is because my colleagues look through a lens that legislates ‘criminal’ into a provision it nowhere appears,” Ambro said.

While Ambro concurred with his colleagues’ reasoning on other points, he added he did not agree that the FTCA solely refers to criminal law enforcement officers – instead applying to “any officer who has legal authority to execute searches…for violations of federal law.”

“TSOs may by law execute searches, as they must screen all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation,” Ambro said.

Ambro said as a result of this evaluation, he would have reversed the District Court’s ruling and allowed Pellegrino’s false arrest, false imprisonment, and malicious prosecution claims to proceed to trial.

“I part with today’s holding. I conclude that TSOs are investigative or law enforcement officers…and that TSA searches do not evade its reach. In line with my conclusion, Pellegrino (and similarly situated plaintiffs) are entitled to their day in court. I respectfully dissent,” Ambro stated.

The plaintiffs represented themselves in this matter.

The defendants were represented by Thomas F. Johnson of the U.S. Attorney’s Office, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-3047

U.S. District Court for the Eastern District of Pennsylvania case 2:09-cv-05505

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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