TSA Kangaroo Court Rubber Stamps TSA Fining Guy Who Stripped Naked, Completely Dismissing Court Ruling Finding It Legal

from the well-of-course dept

Fri, Oct 3rd 2014 6:18am — Mike Masnick

A couple years ago, we wrote about a guy named John Brennan (who, we're pretty damn sure is not the John Brennan who is now director of the CIA) who decided to strip naked at a TSA screening area in an airport to protest the screening process. As we noted, a federal judge acquitted Brennan on First Amendment grounds, noting that he was engaged in a public protest, and that the nudity was a form of protected expression, not subject to indecent exposure laws.

No matter, apparently, for the TSA, who just went ahead and fined Brennan anyway claiming Brennan "interfered with screening personnel in the performance of their duties" (a violation of this rather broad law). As Lowering the Bar notes, this charge is bogus -- and is basically the same thing as when police arrest people filming them under similar charges:

[The TSA] fined him $1,000 for doing this, claiming he had "interfered" with screening operations when he took off all his clothes. As I discussed here, and then again here, that's the same bullshit argument police use when they arrest people for filming them—we had to come over there and stop you from doing something you're constitutionally entitled to do, and so you "interfered" with us. But that logic makes perfect sense to the TSA, and in particular to the administrative-law judge (a TSA employee) who upheld the penalty (reduced to $500) in April. Brennan appealed.

You'll never guess what happened next -- or, wait, actually you will:

Because this is an agency proceeding, the initial appeal is still within the agency, in this case to the deputy administrator. And as I mentioned above, because I didn't want you to be on pins and needles wondering what happened, he affirmed the ruling. The final order (PDF via PapersPlease.org) is again based entirely on the "no, you interfered with us" argument (about which I feel as described above). This also has the benefit (for the TSA) of making the law irrelevant. In fact, the deputy administrator says in his opinion, "I agree with TSA"—of which he is the deputy administrator—"that Respondent's arguments regarding the legality of the nudity are not relevant." Well, that's handy.

Handy indeed to be able to ignore a federal court saying that the activity was constitutionally-protected free speech.

Oh, and it gets more ridiculous. Apparently, the TSA review of the matter said the fine is appropriate because the whole three minutes that things were delayed was horrible for TSA efficiency:

By the way, he admits in his opinion that the checkpoint was closed "for approximately three minutes" as a result of the incident, yet affirms the finding that because of this, the agents "were not able to conduct screening in an efficient manner on other passengers present at the checkpoint." So the TSA is claiming here, with a straight face, not only that it screens passengers "in an efficient manner" to begin with but that it is so efficient that punishment is justified if you delay it by three minutes.

I don't know about you, but I've been pointlessly delayed by much more than three minutes by the TSA approximately EVERY TIME I HAVE FLOWN DURING THE PAST DECADE, so I would describe that claim as farcical.

I'm still wondering how any of this is making us safer. I'm guessing I'll have to keep waiting on that one...

Brennan Tsa Final Order (PDF)Brennan Tsa Final Order (Text)

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Filed Under: first amendment, free speech, interference, john brennan, protest, tsa

55 Comments

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Ninja (profile), 3 Oct 2014 @ 4:49am

I'm still wondering how any of this is making us safer.

Well, I for one wouldn't like to go to the airports and see other people man/womanhoods visible all over the place. I think the TSA is actually doing a good job to provide a dong-free environment in our airports. Think of the children that go to the airports!
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Machin Shin (profile), 3 Oct 2014 @ 5:42am

So a $1000 fine for delaying them 3 minutes. Hmmm, doing some quick math, this means that if your having trouble with something and holding up the line you should owe $333.33 for every minute you cause the line to be held up.

They start charging that and I bet security lines everywhere will take on a whole new brisk pace.
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wshuff (profile), 3 Oct 2014 @ 6:26am

I don't know anything about the TSA administrative process, but I certainly hope that at some level there can be appellate review by somebody not employed by the agency. I want to see the Circuit Court's take on the TSA decisions.
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Michael, 3 Oct 2014 @ 6:28am

I usually have to pay the stripper to show up, not the other way around.

Working for the TSA must be awesome.
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Ninja (profile), 3 Oct 2014 @ 6:42am

Re:
Added cavity exams and naked scans as a bonus! Where do I apply?
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John Cressman, 3 Oct 2014 @ 6:52am

Start goosestepping now
The Nazi Gestapo is here! Ignore the laws... ignore the courts... answer only to yourself!

I feel safer already!
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Pyrosf, 3 Oct 2014 @ 6:55am

System to enforce the system
The TSA system is setup so that no other legal entity has power over it other than the Supreme Court. In the TSA's perfect world the Supreme Court would not hold power over the TSA administrative judgement process. That however would be the only point the two cases will come together.
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New Mexico Mark, 3 Oct 2014 @ 7:02am

Re: Start goosestepping now
s/Gestapo/Gropestapo/g

FTFY
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Someone'sGottaSayIt, 3 Oct 2014 @ 7:14am

TSA
This is my little part in educating the TSA: Everytime I go through security, I "opt out". They are generally fairly nice about it and it usually only takes just a couple of minutes extra to go through the pat down, however, I use these minutes to have a conversation with the TSA agent executing the pat down. Funny thing is, BY FAR, most of them agree this is a ridiculous process and just claim "don't blame me I'm just doing my job." One thing I always do is get their attention, look them straight in the eye, and say "do me a favor will you: I want you to go home tonight and read the fourth amendment to the constitution, and think seriously about how that applies to your job." I like to think maybe I have made at least one of them think twice about their job...Of course, I could just be deluding myself...
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PRMan, 3 Oct 2014 @ 7:19am

So....
Don't pay it?
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Anonymous Coward, 3 Oct 2014 @ 7:22am

Re: TSA
The tragic problem with the fourth amendment is that it was completely gutted by including the word "unreasonable" as a clause for applicability.

There's no getting around it unfortunately: that word renders the entire amendment null and void when wielded by the justice system. This has been proven time and time again over the years, and any protections it does actually provide at this date and time will be whittled to nothing before all is said and done.

"Unreasonable" is purely subjective no matter how you slice it, and in time nothing will be considered so.
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LduN (profile), 3 Oct 2014 @ 7:29am

I wish
I wish I had the power to rule on criminal activities, and have my position be affirmed by myself, therefore voiding any loaw I may have broken.

"No officer, I do not think I was speeding, you got it wrong." ::loks left, looks right:: "Upon further review your complaints are noted, but I reaffirm the prior judgment stating I was not speeding. If you continue to interfere with me getting home I will fine you approximately 20,000$ an hour for the delay(s) you have given me"
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jupiterkansas (profile), 3 Oct 2014 @ 7:54am

Re: TSA
So you try and convince people who might have a conscience to quit their jobs so they can be replaced by people who have less empathy for travelers and the ridiculous policies of the TSA.
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Sheogorath (profile), 3 Oct 2014 @ 7:56am

What if...?
What if I was to go to the airport wearing a T-shirt that says, "Fuck the TSA since they're molesting us"?
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Anonymous Coward, 3 Oct 2014 @ 8:10am

Re: Re: TSA
THats one take I suppose, it could also possibly make that employee to advocate from within to bring about change.

In reality, I suspect most of them really don't give a crap one way or the other. The vast majority likely only care about three things:
1. What time their shift starts
2. What time their shift ends
3. What day they get paid.
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The Wanderer (profile), 3 Oct 2014 @ 8:29am

Re: Re: TSA
On the one hand, yes, having the job be done only by people who don't care about the negative aspects of what they're doing would be a bad thing.

On the other hand, it would mean that people could despise, ostracise, and otherwise socially abuse TSA employees with a clear conscience - thereby giving the remaining employees a different type of disincentive to continue working there.

I think there's a case to be made that that could be worth the trade-off. Although there is still the difficulty that there's no way to be certain that the state where only "the bad people" still work there has yet been achieved, so it wouldn't be possible to be entirely certain about that clarity of conscience after all.
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Anonymous Coward, 3 Oct 2014 @ 8:30am

surely the ruling from the Federal Court has more standing than from the TSA Court? and i appreciate that the TSA court has already been appealed, can he not go above that particular one and go to a legitimate court to be ruled properly? this is obviously ridiculous behavior from the TSA and they need to be reminded of who issues legal findings
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John Fenderson (profile), 3 Oct 2014 @ 8:36am

Re: Re: Re: TSA
"it could also possibly make that employee to advocate from within to bring about change."

I can't see how this would have any effect on the TSA whatsoever. The agents are just powerless plebes. The TSA certainly couldn't care less what they think.
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Anonymous Coward, 3 Oct 2014 @ 8:41am

Re: What if...?
Don't ever fly to a country you do not wish to live in afterwards, less you get stranded there.
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The Wanderer (profile), 3 Oct 2014 @ 8:58am

Re:
The quoted article does say that this was "the initial appeal", and I imagine that it can and - we may hope - probably will be so appealed.
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Greevar (profile), 3 Oct 2014 @ 9:05am

Re: Re: TSA
It should be changed to "warrant-less" or "without probable cause" (probable cause being clear and present threats to public safety, such as a crime in progress, reckless behavior, or visible contraband), adding consequences if an officer performs a search that violates such requirements. Evidence of this could be provided by way of mandatory video and audio recording devices on their person while in their official capacity. If no probable cause can be found, the officer will be subject to penalties to their wages or forced into unpaid leaves of absence. Repeated incidents will be grounds for an internal affairs investigation and the potential termination of the violating officer/agent.

I call that a good start.
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That One Guy (profile), 3 Oct 2014 @ 9:39am

Re: What if...?
You would be 'randomly' searched, extensively, every single time you wore it.
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The Wanderer (profile), 3 Oct 2014 @ 10:10am

Re: Re: Re: TSA
Actually, as I understand matters, "probable cause" in the original context appears to have referred to "probable cause to believe that the thing being searched for is in the place to be searched" - where "probable" is contrasted with "plausible" or "possible" or even "improbable", any of which would leave much more room for random or punitive searches.

It had nothing to do with "threats to public safety" or "crime in progress" or similar - only with the likelihood, and (by way of determining that) believability, of the idea that the search being carried out would find the thing being searched for. If you can't convince the person whose responsibility it is to make such judgments that it's probable that the thing is where you say it is, you don't get to search for it there.

That gets lost to some degree under the common-parlance jargon use of the phrase, but I believe it's still of critical importance in understanding how the idea of probable cause should be applied.
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Anonymous Coward, 3 Oct 2014 @ 10:13am

Could not the argument be made that by stripping nude, one actually EXPEDITES the inspection process? If the TSA personnel stop working and gawk or argue or excuse themselves for the bathroom just because they've seen someone naked, then they're the ones actually holding up the process.
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That One Guy (profile), 3 Oct 2014 @ 10:45am

Re: Re: Re: TSA
Mostly good, except for this part:

Repeated incidents will be grounds for an internal affairs investigation

The police should never be the ones in charge of investigating themselves, that has 'conflict of interest' written all over it. Such investigations should instead always be carried out by an independent third party, one that doesn't answer to the police, but which does have authority to order them to cooperate, and punish them if they refuse to do so.
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DannyB (profile), 3 Oct 2014 @ 10:50am

This guy caused a major disruption
The entire whole three minutes that this guy was distracting the TSA, they could have been doing their jobs of stealing iPads from passenger luggage and groping people.
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David, 3 Oct 2014 @ 10:50am

Re:
I think you're right. How long does a pat-down take? How much easier was it for the TSA agent to preform their patdown search? Did it save money since it reduced the number of latex/nitrile gloves involved?
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DannyB (profile), 3 Oct 2014 @ 10:52am

Re:
It may expedite the inspection process but it makes more awkward the groping process.

Plus, the TSA has been demonstrated to be selective in who it gropes, and therefore presumably selective in who it would like to strip nude.
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Anonymous Coward, 3 Oct 2014 @ 11:01am

The TSA is simply trying to financially punish the protestor. Either he'll have to pay the fine, or he'll have to pay a lawyer and court fees.

The TSA is just angry about their security theater getting bad reviews from critics.
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Anonymous Coward, 3 Oct 2014 @ 11:33am

give a petty dictator power and they will lord it over everyone they can and retaliate out of spite when anyone disrupts them
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Anonymous Coward, 3 Oct 2014 @ 11:37am

Re: Re: Re: Re: TSA
you forget, the police believe they are infalliable. Even when video evidence proves an officer wrong the courts and the police trust the word of the officer.

So they will always find a justification for abuse of power
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zip, 3 Oct 2014 @ 11:42am

Re:
Exactly. That's what prisoners routinely have to go through. Everyone gets stripped naked, lines up against a wall, spreads their legs, etc.

It's indeed ironic when a person is forced to strip naked as a punishment for ... stripping naked.
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ltlw0lf (profile), 3 Oct 2014 @ 11:46am

Re:
Think of the children that go to the airports!

Oh, don't worry Ninja, the TSA already thinks about the children that go to the airports.
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AnonCow, 3 Oct 2014 @ 12:21pm

He should fine the TSA for $1,000 for interfering with his travel. If they can fine him for doing something completely legal and Constitutionally protected, why can't he fine them for doing their jobs so poorly? And if the TSA objects, he can send it to himself for review.
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Anonymous Coward, 3 Oct 2014 @ 12:52pm

(who, we're pretty damn sure is not the John Brennan who is now director of the CIA)

Aww, but it's so much more fun to imagine it is...

"Added cavity exams and naked scans as a bonus! Where do I apply?"

Cavity searches cost extra- unless you're a Chinese pigeon, or travelling in Nevada.
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That One Guy (profile), 3 Oct 2014 @ 1:25pm

Re: Re: Re: Re: Re: TSA
Hence why they should never be in charge of, or even involved with, investigations over their own actions. Shifting the responsibility to independent groups may not completely remove the problem, but it would at least lessen it somewhat.
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Anonymous Coward, 3 Oct 2014 @ 1:37pm

Re: Re: Re: Re: Re: Re: TSA
This is a perfect example of how you all don't know how to READ!!!!

The Word "Unreasonable" in the forth does not provide EXCEPTION! It specifically states that ANY SEARCH OR SEIZURE that does not have a WARRANT is UNREASONABLE!

Read it again and use your noggin... now you know how ignorant the vast Legal Machine is! WAKE UP!
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Anonymous Coward, 3 Oct 2014 @ 2:19pm

"that Respondent's arguments regarding the legality of the nudity are not relevant."

This is not just legal, but protected by the constitution. In other words, the TSA just said it is not bound by the constitution. Anyone feel safe yet?
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That One Guy (profile), 3 Oct 2014 @ 2:19pm

Re: Re: Re: Re: Re: Re: Re: TSA
... okay, I'm confused. What comment are you replying to? If it's mine, please point out where I've mentioned anything regarding the fourth amendment on this article, because I'm not seeing it.

I'm pointing out that due to conflict of interest, police should never be involved in investigating their own actions, that's it. Nothing more, nothing less.
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Anonymous Coward, 3 Oct 2014 @ 2:27pm

"interfered with screening personnel in the performance of their duties"

I'd think this would speed the process up , I mean no clothing means quicker search procedures.
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Zonker, 3 Oct 2014 @ 3:29pm

"No, no, no. Put your clothes back on young man. We can't put you through the naked body scanner until you put your clothes on. If you make us hold up the line any longer than we already have, we're going to have to fine you $1000."
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MarcAnthony (profile), 3 Oct 2014 @ 6:58pm

Yet another "court" that shouldn't exist and doesn't know its place
When the legality of the law is not relevant, you have to wonder with what kind of a sham court it is with which you're dealing, and this absurd decision belies the fact that federal trumps administrative. I looked up exactly what an administrative court is supposed to be; their role should be to ascertain that official public policy acts "are consistent with the law." No consistency is to be had here.
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LawDog, 3 Oct 2014 @ 7:28pm

Some clarity would be nice
This article didn't make sense to me at first. The author should take more time to clarify the following...
1. The initial case was a CRIMINAL (much higher bar to find someone guilty) case decided in COUNTY court. No federal involvement. He was charged with indecent exposure by county officers.
2. The TSA case is a CIVIL case in FEDERAL court. Brennan is basically being sued for damages by the TSA alleging that he caused injury to TSA and the American taxpayers.

The differences between a criminal case and a civil case are huge. The differences between county law and federal regulations are huge. I agree with the sentiment in the article (TSA overreach)... but I feel the author does a disservice to readers and the libertarian cause in general by dumbing it down.
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LawDog, 3 Oct 2014 @ 7:28pm

Some clarity would be nice
This article didn't make sense to me at first. The author should take more time to clarify the following...
1. The initial case was a CRIMINAL (much higher bar to find someone guilty) case decided in COUNTY court. No federal involvement. He was charged with indecent exposure by county officers.
2. The TSA case is a CIVIL case in FEDERAL court. Brennan is basically being sued for damages by the TSA alleging that he caused injury to TSA and the American taxpayers.

The differences between a criminal case and a civil case are huge. The differences between county law and federal regulations are huge. I agree with the sentiment in the article (TSA overreach)... but I feel the author does a disservice to readers and the libertarian cause in general by dumbing it down.
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Anonymous Coward, 3 Oct 2014 @ 10:41pm

Re:
[...] I for one wouldn't like to go to the airports and see other people man/womanhoods visible all over the place. I think the TSA is actually doing a good job to provide a dong-free environment in our airports. [...]
I think only American neo-Puritans like yourself (and Whatever) would consider exposed "dong[s]" to be more offensive than the routine violation of travelers' rights under the Fourth Amendment. Besides, the heads of cocks are already plainly visible — protruding from the blue shirts worn by your Bill of Rights-burning heroes in the TSA.
[...] Think of the children that go to the airports!
I'm thinking that they're going to grow up without an appreciation or expectation of privacy under the Fourth Amendment, thanks in part to your precious blue-shirted authoritarian thugs and the prevalent police/surveillance-state that they're a part of. Further, at least half of them already see and/or handle cocks (belonging to themselves) on a regular basis — seeing a cock that's not attached to themselves represents no great threat, and as the aforementioned federal judge has wisely ruled, hanging out in the breeze represents protected speech.
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That One Guy (profile), 3 Oct 2014 @ 11:31pm

Re: Re:
You done got Poe'd.
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John Brennan, 3 Oct 2014 @ 11:40pm

9th Circuit Court is Next
This is John Brennan, the TSA protestor. Lively discussion here on techdirt.

There is a difference between the criminal charges (of which I was acquitted) and the on-going civil case. However, the two are related in the eyes of the law, just not in the eyes of the TSA, who are unaccountable and self-absorbed.
As Kevin at Lowering the Bar notes, whatever the TSAs rules are, above all, they can not be unconstitutional. TSA (and DHS) has operating with impunity.
I plan to appeal this administrative decision to the US Federal Court, likely the 9th Circuit Court. It's in this court that, after two and a half years of administrivia, the connection between TSA and the US Constitution can be examined. Of course, I hope to prevail.
I *do* need to get a lawyer. I'm talking to a couple of sources right now. And I do need to raise money for legal expenses. That will be kicking off soon.

To get more information, go to http://www.nakedamericanhero.com, which will redirect you to my facebook fan page.
You can also follow me on Twitter or Tumblr.
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nasch (profile), 4 Oct 2014 @ 4:58pm

Re:
Hmmm, doing some quick math, this means that if your having trouble with something and holding up the line you should owe $333.33 for every minute you cause the line to be held up.

Which is $5.56 per second. Seems a little excessive.
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nasch (profile), 4 Oct 2014 @ 5:10pm

Re: 9th Circuit Court is Next
Glad you're appealing, I hope you can get help from the ACLU or someone.
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Mark Noo, 5 Oct 2014 @ 8:50pm

the agents "were not able to conduct screening in an efficient manner on other passengers present at the checkpoint.

If a man (hopefully seductively)doffing his clothing for them to inspect interferes with their ability to do their jobs imagine what a person with a honest-to-god weapon would do to them.

All of the agency rulings are subject to judicial review after all appeal avenues within the agency are exhausted. My guess is they will have to prove to the court that 3 minutes of searching a person is a lot of time compared to other searches to make this fine stick.
Maybe Eric Holder will argue that the TSA would have used that time better to protect "America's children".
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ZOG SUCKS, 5 Oct 2014 @ 11:35pm

Re: It will not matter. Right now the Circuit Circus Courts afferm magistrate decisions that are against the individual over 95%
The rate is 95%. In the USA court system itself the conviction rate is over 90% against individuals. WHen the court investigates it's own they get off over 98% of the time. If you flip 10 dimes they will come up on heads 50% tails 50% the more you flip them the closer to 50% it is. If the coins were always TEN DIMES or even NINE DIMES HEADS EVERY TIME you would KNOW the coins were two headed or the game rigged. The USA courts are rigged and the USA Gvt has outlived it's usefulness. SEE how they stop EBOLA or Drugs or black crime or....
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The Pigs, 5 Oct 2014 @ 11:40pm

Re: Re: Re: Re: TSA
"probable cause" used to mean I have to get a warrant. Now "probable cause" means whenever I want I can search anything I want and steal whatever I find. Get used to it, bitch.
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The TSA, 5 Oct 2014 @ 11:44pm

Terrorists
We have NEVER caught a terrorist. We have NEVER stopped terrorism. We just say we did and we can't tell you about it. It is a secret and stuff. Meanwhile we have had thousands of TSA flunkies steal millions of dollars of your property. Some of us have been caught and even fired and jailed but it is almost impossible to be caught. So keep complaining and I will finger rape your child while I steal your jewelery and cash laughing all the while because you can't do a damn thing about it.
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Niall (profile), 6 Oct 2014 @ 1:48am

Re: Re:
A) Ninja is from Brazil.
B) Your Sarc-O-Meter is broken.
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nasch (profile), 6 Oct 2014 @ 5:34am

Re: Re: It will not matter. Right now the Circuit Circus Courts afferm magistrate decisions that are against the individual over 95%
In the USA court system itself the conviction rate is over 90% against individuals.

Even if true, that is not necessarily a problem. That could simply indicate that prosecutors are good at choosing which cases to pursue. I'm not saying there are no issues with the justice system, only that that particular number doesn't prove anything by itself.
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