Thanks, I appreciate the pointers. I skimmed through US v. Hartwell, and see that there's some dispute among all the decisions. If I read it right, the 5th circuit (where I live) is one of those where consent can be revoked. But, maybe that's a US district court decision that wouldn't apply at my home airport.
I agree that judicial remedy is unlikely, and that this will have to be addressed by Congress. But, I'm less pessimistic that it will be successful: the outrage is palpable, and it's mushrooming.
And states are getting involved. I'm watching one video of NJ legislators that are calling for the TSA to back off. A DA in California (San Mateo, I think) has warned that he will prosecute TSA screeners for sexual assault if they cross the line.
One of the problems with the leading cases on the 4th Amendment as it pertains to airport searches is that they are almost all criminal cases where the 4th Amendment is being asserted by a defendant who was caught smuggling drugs. (As an aside, isn't it interesting that they are almost never caught with weapons or explosives, which is what the screens are supposed to be there for?) These are some unsympathetic litigants, and that doesn't help our case. Even though they aren't supposed to, many judges will look hard for ways not to let clearly guilty defendants walk free even if they were only convicted on illegally obtained evidence.
What would be better would be for innocent passengers to bring a
Bivens claim against the screeners and tort claims against both the screeners and the TSA and/or United States itself. And I stumbled on a federal District Court case from New Jersey where a flight attendant who was subjected to an outrageous "pat-down" did just that. You can find the text in a thread on a forum for ExpressJet pilots
here.
I'll try to keep this one brief without going into the procedural details - this opinion dealt with a motion to dismiss brought by the TSA and a motion by the plaintiff to amend her complaint.
Essentially, the court found that the plaintiff could bring both
Bivens claims and common-law tort claims (namely battery) against the individual screener, but not against the TSA or the United States. The reason the plaintiff cannot sue the government is because the Federal Tort Claims Act, which waives federal sovereign immunity for tort claims, generally excepts intentional torts from that waiver, and specifically excepts assault and battery claims. The lone exception to that exception is for "acts or omissions of investigative or law enforcement officers of the United States Government".
But wait, aren't TSA screeners "investigative or law enforcement officers"? Now this is the interesting part, because the answer, according to the court, a number of cases its cites,
and the TSA's lawyers themselves, the answer is
no. TSA screeners "did not have the authority to execute searches, seize evidence, or make arrests for violations of federal law."
Now, if this case is right, that means that if you don't wish to be subjected to the pat-down and decide to leave the airport instead, the TSA officer does not have the authority to stop you. The most he can do is call the real police, though I'm not sure what crime he'd be reporting.
Obviously, this seems to contradict the other cases we've seen. I have a couple ideas as to why that is, but I'd need to do a lot more research before I'd be comfortable putting them forward.