Be afraid.

So as we come to the end of 2014 and peruse the last few decisions of the year, one decided on December 23 by the First Circuit – the holiday travel season — struck us in particular.  Ruskai v. Pistole, Docket No. 12-1392.

This is another decision from Judge Kayatta (with Judge Lipez and CJ Lynch rounding out the panel).  It upholds a security protocol of the Transportation Security Administration (TSA).  

This case is interesting for all sorts of reasons, including seeing how the court deals with agency decisions with no real administrative record; 28(j) letters; timing of APA appeals and discussion of lots of other issues.  But we will cut to the chase and to the substance of the ruling on the merits.

The petitioner travels a lot and is in the PreCheck program.  Big city airports have newer screening machines where you raise your arms and go through; these machines detect both metal and non-metal explosives.  Some airports don't have those yet, however, and in those airports everyone goes through old fashioned metal detectors.

The Petitioner has some metal joints, so these old machines buzz when she goes through.  The TSA protocol is to then pat her down.  She doesn't like that, and says that they should pass a wand over her instead, which sees where the metal is.

What may be the most disturbing thing about this opinion — by far — is its observation that there are hordes of people wandering around our airports and onto planes who have not gone through any screening for non-metal explosives.  Apparently TSA is working to get all airports the new machines, but the transition is slow.  The First Circuit seemed as disturbed about this situation as we are, noting that "it is remarkable that the administration and Congress have not yet managed to achieve full AIT capability, and continue to allow large numbers of passengers to board without any screening for nonmetallic weapons."

But the court couldn't fix this rather monumental problem, so, moving onto the ruling, the petitioner said that it was irrational and violated her Fourth Amendment rights to always pat her down for nonmetallic weapons because she sets off the metal detector.  The test the court said it was applying was "there must be a fairly close fit between the weight of the government's interest in searching and the intrusiveness of the search — that is, the search must be a 'reasonably effective means' for furthering the important government interest." 

Analyzing the claim, the Court noted that there didn't seem to be any evidence that folks who set the metal detector off are more likely to be carrying nonmetallic explosives than folks who don't set it off.  To support the pat down search of everyone who sets the metal detector off (but not everyone who doesn't), the government argued, basically, that it lacks the resources to search everyone, and when someone sets the alarm off, they have to be searched anyway, so the TSA might as well search these folks for nonmetallic explosives through a pat down, and not just wanding them.  The government also said that it's more efficient to train TSA personnel to do pat downs on everyone instead of some getting people getting pat downs and others just wands. 

This argument was good enough for the First Circuit.  Apparently some Canadian airports use the wand in this situation, which has been deemed by the TSA to be ok for Canadian airports to be deemed safe.  But the court didn't find the Canada argument persuasive because "foreign airports involve additional legal and political exigencies."  To sustain the different protocol in the US, the court analogized it to making students in sports programs take drug tests, which the Supreme Court has upheld.  The Court of Appeals also cited the general rule that the government may deal with a problem incrementally, and talked a little about sobriety checkpoints. 

While the court sustained the protocol, it didn't exactly give the status quo a ringing endorsement,   noting, "Clearly, neither Congress nor TSA finds the current underinclusiveness in screening passengers for nonmetallic weapons to be acceptable in the long run[.]" 

Finally, the court rejected the petitioner's argument that the protocol violated Section 504 of the Rehabilitation Act of 1973 because it disparately impacted people with disabilities.  Basically, the Court said that while some types of disparate impact could support a Rehabilitation Act claim, impact has been enough in the past when "persons with disabilities were denied meaningful access to a government program or benefit," and this was not the case here.

Let's hope that the TSA got some funding in its Christmas stocking to get those new machines installed — pronto.





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