Some of you may remember last December when a young man stripped down in the airport with the Fourth Amendment written across his chest and was detained by the TSA for 90 minutes.
That 'human billboard' for the 4th Amendment, Aaron Tobey, filed a federal lawsuit against the TSA and federal officials to include DHS Chief Janet Napolitano and TSA head John Pistole for, among other things, violating his First and Fourth Amendment rights.
Unfortunately, a federal judge in the Eastern District of Virginia has just tossed out almost all of the case. The judge dismissed the passenger's claims against the Capital Region Airport Commission, a few Richmond airport police officers, Napolitano, and Pistole.
At the core of the judge's decision was the lack of senior officials' proximity to the events. Basically, you can't blame Napolitano for what a couple of underlings did at one airport in the U.S. As the judge wrote in his decision:
"Plaintiff does not allege that [Napolitano and Pistole] were directly involved in any way in the events, nor does he allege any facts suggestive of deliberate indifference."
The judge also decided that the TSA guidelines alone could not constitute a rights violation, which absolved those same senior officials from any liability in their creation or implementation.
The court did, however, leave open the possibility that the screeners themselves could be personally liable. The judge wrote:
"The question is whether the TSOs in fact radioed for assistance because of the message plaintiff sought to convey... Because plaintiff's unrebutted claim facially states a cause of action, the question of qualified immunity must await further discovery."
So while the judge protected those at the top of the federal food chain, he left open the possibility that the screeners may be individually liable for violating Tobey's civil rights.
That will provide little comfort to the plaintiff, who by all accounts just wanted to put his Constitutional rights on display-- literally-- and force the federal government to stop its invasive airport pat-down policies.
Perhaps it may have worked against Tobey that, unlike the rest of us, he made his flight despite the TSA security delay.