TSA screeners win immunity from flier abuse claims: U.S. appeals court

The best interaction I ever had with the TSA was when I came upon a pair openly wearing their uniforms around a grocery store, so I was able to call them fascist child molesters to their faces.

The opinion is here (should be up on the CA3 website later today): http://s000.tinyupload.com/index.php?file_id=310762278918844.... The relevant discussion starts at 12-13.

The gist of the suit is this: Ordinarily, you cannot sue the federal government (sovereign immunity). The Federal Tort Claims Act (FTCA), broadly waives sovereign immunity for tort claims. An exception to that waiver of immunity is where the agent of the government commits an intentional tort (e.g. federal employee punches you, as opposed to accidentally running over your dog, which would be a negligent tort). However, that exception does not apply to law enforcement officers--under the FTCA, the federal government takes responsibility for the intentional torts of law enforcement.

Ordinarily, even if you cannot sue the government, you can sue the individual officer in his personal capacity. Under the Westfall Act, however, the FTCA is the exclusive remedy for torts of federal agents acting within the scope of their employment.

That leaves a loophole: you can sue federal law enforcement officers under the FTCA for both intentional and negligent torts. But if the federal agent is not a law enforcement officer, you can only sue her for negligent torts. The issue in this case is whether TSA agents are law enforcement officers such that you can sue the federal government for their intentional torts.

The majority holding is probably correct as a matter of statutory interpretation. Still, it puts TSA in a weird loophole, where they act like law enforcement officers (including all of the power-tripping that can result in commission of intentional torts), but can't be held liable under the FTCA like law enforcement officers. The dissent makes a good point:

> Circuit Judge Thomas Ambro dissented from Wednesday’s decision.

> “By analogizing TSA searches to routine administrative inspections, my colleagues preclude victims of TSA abuses from obtaining any meaningful remedy for a variety of intentional tort claims,” he wrote.

>* The best interaction I ever had with the TSA was when I came upon a pair openly wearing their uniforms around a grocery store, so I was able to call them fascist child molesters right to their faces.*

I'm no fan of the TSA, but do you think that was productive?

Maybe direct your ire at the people at the top who make these policies instead.

There's been progress on that front with several Trump administration officials confronted while dining for example.

The civil suit was filed in 2009, and took 5 years to go to trial. It looks like nobody was in a hurry--the plaintiff filed a ton of motions to extend various filing deadlines. Then the appeal was slowed down because the plaintiff was proceeding pro se. After briefing was complete, the court, apparently not wanting to leave these issues to the pro se briefs, ordered appointment of amicus curiae counsel on behalf of the plaintiff, along with further briefing.

> There's been progress on that front with several Trump administration officials confronted while dining for example.

What is the progress / outcome? Have there been any changes in policy resulting from public confrontations?