Airport Searches Illeagal?

[ShawnC]

Re: Avbug is Constitutionally Correct

Finally, one last comment. Someone stated in another thread that security took a child (about 7 or 8) into a room without her parents to "search." I find this to be one of the most distressing incidents I have heard of!! This is where the discretion of the LEO and the airport security manager need to be checked. A parent should have always been present in such a search.

I'm done with my ramblings/rantings.....

Wow, that is really bad, if I remeber correctly they would be breaking the law once again the consent part is still in effect, and a child that is a minor can't give that consent.

Now one thing that I must be said please lay off the personal attacks eithier way. It seems like people are constantly wanting to attack the person not the idea like they should.

 

[avbug]

Shawn,

In a blindingly confusnig twist of precedent, recently the Supreme court provided that a parent cannot sign away the right of consent for a minor. This applied specifically to a parent who signed a waiver for a child, who was subsequently injured on horseback. The partent sued, and was blocked by the waiver. Ultimately, the supremes held that the parent did not have the right to sign away the child's rights by providing a waiver, and consent. The parent won, despite having signed the waiver. Minors can't provide consent, and neither can adults. The law has never revolved around logic.

I'd like to get Bobbyamsand's input here, as a paralegal.

Furloughedgal, you were right. It was the Civil Aviation Act of 1938. The Federal Aviation Act of 1958 was basically a re-write, with organizational changes and the re-enpowerment of the FAA (changed from Federal Aviation Agency).

Something that hasn't really been addressed so far, and something that is wide open right now, is civil redress for wrongs, harrassment, and detention by airport screeners or security. While there is little debate on the subject of constitutionality (that can change, as most everything is subject to interpretation and ammendment), we haven't really touched on the civil liability of screeners in executing their duties.

Where abuses occur which are clearly outside the programs set forth, no protections will exist. The potential to bring civil law suits is still quite valid on an individual basis. If widespread and uniform enough, the potential also exists to do so on a class-action (read, Union) basis. Thoughts?

 

[Timebuilder]

I want Bobby to check me on this, but it is my understanding that the government "chooses" which suit it will allow to proceed against it. For example, if the IRS audits you and finds everything in order, the government will not allow you to sue for expenses, damages, etc. It seems that this same power of exclusion could be exercised now that the government has responsibility for airport security. It would likely take some very egregious conduct to force the gov to allow a suit against it in this situation, as it would generate a legal precedent.

 

[skydiverdriver]

I agree with IFF and others on this issue. I also feel that random drug testing is an illegal search, but that's a different matter.

One question for Avbug, is driving a priveledge or a right? Well, if it's a privledge, as I'm sure you agree, then is it okay for the police to randomly stop people and search their cars? Of course not. Flying is a privledge, true, but it's also my employment. I'm not making a choice by flying, my choice was made to take this job. They have no reasonable cause to search me because I work for an airline. I know, I know, there is a clear and present danger. Well, just because one supreme court chief justice maden up that term, does NOT mean it is true.

Of course, the only way to challenge this would be to refuse a search, lose your job, and take it to a federal court. Since most people are not willing to do this, our rights will continue to be violated. They are searching kids in high school, and by the time they are adults, they won't even know that this stuff is illegal.

I fear for our future, if nobody stands up to this infringement.

 

[Flydaplane]

A private search of a 7 year old is unexcusable!
The liability the federal govt is opening itself up to via lawsuits due to problems at the checkpoint scares me. One of the reasons why I wish congress hadn't passed this law/act.

As far as random crew searches, they aren't to be done, however, many times when you jumpseat or non-rev, even if you are in uniform, you will come up as a selectee and be selected for screening (as a selectee but not random). This is due to the same day purchase flagging the computer. Some airlines have been able to fix this and some haven't. Hope this helps.

 

[skydiverdriver]

You are correct that flying is a privledge. However, the activity that you are participating in has NO bearing on your civil rights. The only time an activity would have any bearing would be if you were doing something illegal. Even the Supreme Court has said that you do not give up your rights when you enter a school (or any other location). If you think the fact that I fly a plane is a reasonable cause to make a search, then I guess they can search me anytime elsewhere too, right? So, where am I protected, and what is an unreasonable search?

 

[aero99]

Would be nice if the pilots could be included in a "trusted fliers program".



Officials to discuss trusted fliers program
February 25, 2002 Posted: 10:37 AM EST (1537 GMT)






WASHINGTON (CNN) -- Homeland Security director Tom Ridge will meet Monday with John Magaw, the head of the Transportation Security Administration (TSA), to try to work out their differences over the advisability of a trusted fliers program.

TSA officials have said the agency supports with reservations the trusted traveler idea, so long as the person still undergoes security screening at the airport. The fear is that a member of a terrorist sleeper cell, as a heretofore law-abiding person, could obtain such status as "trusted traveler."

The TSA last week scrapped a separate but related plan for expedited security screening lines that five airlines had established in more than a dozen cities for frequent fliers and first class passengers.

The agency said it wanted uniformity and consistency in the screening process. The move was one of the agency's first major enforcement actions since assuming responsibility for airport security February 17.

A spokesman for the Office of Homeland Security said Ridge does not believe it is a wise use of resources to subject everybody to the same level of security, and he will explore with Magaw the possibility of testing a trusted traveler program at a selected airport.

Ridge, according to a spokesman, believes it is important to both improve security and cut down waiting times at the nation's airports.

The subject came up Sunday at a meeting of the National Governors Association. Oklahoma Gov. Frank Keating told Ridge the current security system provides a false sense of security while exacerbating delays that will discourage travelers and slow the recovery of the airline industry.

-- Aviation Correspondent Kathleen Koch contributed to this report.

 

[skydiverdriver]

Hey flydaplane, I don't mean to demean what you said, but how can jumpseating or non-revving be seen as a same day purchase? A non-rev is someone who doesn't purchase a ticket, and neither do jumpseaters. Perhaps you mean something like going without a ticket.

 

[Andy Neill]

Skydiverdriver,

A couple of posts ago, you mentioned that it would not be acceptable to subject ourselves to random auto searches even though driving was a privilege. Interesting point.

Some communities, in an effort to thwart drug trafficking, set up highway stops to conduct 100% or random searches. These were deemed illegal in original or appellate courts. The tactic governments have used to get around this is to identify a compellling reason for the original stop. Some use "safety checks". If during the course of a safety check, a whiff of marijuana was smelled (or any number of trigger events), then the officers had probable cause to search. We recently had what I thought was an extreme stretch of this principle used when a driver was arrested because, seeing the check point and not wanting to be delayed thusly, turned around and drove away.

Now as to how this policy could be applied to the subject at hand, I am not certain. Is walking through a metal detector with no probable cause an illegal search? If setting off a metal detector, is a wand an illegal search? If setting off a wand, is a manual search intrusive and illegal? Is turning away from the metal detector (change of mind from going by air) probable cause?

 

[jetdriven]

I hope they include the pilots in the 'trusted flyers program"!! After all the employers trust us with the airplanes!!!

 

[ShawnC]

Skydiverdriver,

A couple of posts ago, you mentioned that it would not be acceptable to subject ourselves to random auto searches even though driving was a privilege. Interesting point.

Some communities, in an effort to thwart drug trafficking, set up highway stops to conduct 100% or random searches. These were deemed illegal in original or appellate courts. The tactic governments have used to get around this is to identify a compellling reason for the original stop. Some use "safety checks". If during the course of a safety check, a whiff of marijuana was smelled (or any number of trigger events), then the officers had probable cause to search. We recently had what I thought was an extreme stretch of this principle used when a driver was arrested because, seeing the check point and not wanting to be delayed thusly, turned around and drove away.

Now as to how this policy could be applied to the subject at hand, I am not certain. Is walking through a metal detector with no probable cause an illegal search? If setting off a metal detector, is a wand an illegal search? If setting off a wand, is a manual search intrusive and illegal? Is turning away from the metal detector (change of mind from going by air) probable cause?

They are illegal and I don't blame people for turning around at the checkpoints. When I was in that line once I did the turn around myself, there is no where in the law that says that you must submit to it.

As far as the security at airports, I believe there will be someone with enough balls to get caught and take it to court. I just hope that it happens soon.

Oh well thats just IMO, these days everything is being taken to the extreme when it comes to security.

 

[RJFlyer]

Let's assume for a moment that those of you who believe airport security is unconstitutional are proven correct. How then would you propose to keep bombs, guns and knives off of the airplane you are flying?

 

[ShawnC]

Well guns and knives are easy to deal with, just bring your own gun or knive on the planes. Bombs well there is still the bomb sniffing dog (that has been deemed consitutional by the supreme court).

 

[ksu_aviator]

Let's assume for a moment that those of you who believe airport security is unconstitutional are proven correct. How then would you propose to keep bombs, guns and knives off of the airplane you are flying?

Really if the FAA said something broad like all flights operated under 121 must ensure that no weapons are carried by unauthorized passengers onto the airplane. Then the airlines would be required to screen everyone and the question of constitutionality would be solved. This way, being screened is a condition of the ticket you purchased with the airline. The airline does the screening of passengers and baggage. When the government does it themselves, then we have problems.

 

[Lindy]

It doesn't have to be the FAA

"Really if the FAA said something broad like all flights operated under 121 must ensure that no weapons are carried by unauthorized passengers onto the airplane. Then the airlines would be required to screen everyone and the question of constitutionality would be solved. This way, being screened is a condition of the ticket you purchased with the airline."

KSU -- It doesn't have to be the FAA!! A company can implement this policy on it's own (some have already) and the FAA doesn't need to be involved.

The primary issue everyone seems to believe is whether an airport search through a security checkpoint is constitutional.

No one can provide a legal argument stating that it is unconstitutional!! The closest example would be the "Motor Vehicle Checkpoints" as discussed for Safety issues. The leading case pertaining to this issue was decided by the Supreme Court more than 7 years ago. A Michigan driver was stopped, arrested for drunk driving, and sued. It followed it's way through the Michigan Courts (including the Michigan Supreme Court) and was finally appealed to the US Supreme Court. Guess what the Majority stated?? LEGAL!! However, it was a "state's rights" issue and was remanded for further consideration. A state has the right to have legislation stating the "MV Checkpoints" are legal (or not). Why was it legal?? The crux of the argument was SAFETY!! Taking one drunk driver off the road to protect the other driver's was a key argument. This outweighed any privacy an individual might have had driving through the checkpoint.

Flying is NOT a "State's Rights" issue. (Yes, several states have enacted aviation legislation WHEN THE FEDERAL AVIATION ACT OF 1958 et seq does not speak to a partiuclar issue. However it is primarily property issues (floatplanes on waterways is one that comes to mind....).

I would love to see this challenged in a court -- I'm furloughed and just may travel to any oral argument to hear the claim that the plaintiff's attorney is proffering. If anyone hears of this being challenged, let me know!!

And, if I could think of a constitutional argument stating that they were illegal, I would write about it and beg someone to publish my "well-thought out legal literary theory of unconstitutionality."