Airport Searches Illeagal?

[ShawnC]

Ever since it has been that the US government has taken over the security at our nations airports I have been doing some light research on the legality of the airport searches.

It appears that the random searches are illegal, unless they are accompanied by some real reason, like setting off the metal detector or if something is suspicous in the X-ray. The only problem is that one must go though it to get on the plane.

Now I am not a lawyer but it would be an intresting case, to see what would happen if someone denied the random search. Would they have to let him on the aircraft, because any search at that point would be illegal? Just some ideas, if there are any people that know lawyers here might be something to talk to them about.

 

[rk772]

I don't have a law degree but I do have 3 years experience as a police officer. If I stop someone on the street and I have reasonable suspicion that he MIGHT be carrying a weapon, I can do a pat down search. If I then feel something questionable, I have probable cause to stick my hand in his pocket or remove his jacket and so on.
Now, reasonable suspicion can be anything from a bulge in his pocket to the person just avoiding eye contact with me because I am a police officer. It all boils down to how I write my report when it's all over. I'm sure if the airport security was ever challenged by his search, he could quickly come up with some sort of reasonable suspicion which led him to the probable cause for the search.
Again, Im not a lawyer, and there may be some special federal laws on search and seizure that I don't know about.

 

[ifly4food]

First of all, contrary to popular belief, the gov hasn't "taken over" security. They are just paying Argen-dim, ITS, Globe, etc with tax money.
The screeners are not yet federal employees.

Second, the "random" checks (which we all know aren't really random) usually happen at the gate.
These are conducted by the airlines according to profiles. Also, the first and last person to board are "randomly" checked. Some things that will get you "randomly" checked are using employee benefits, jumpseating, being in uniform, diaplaying airline ID, oh yeah, and buying a one way ticket, travelling with no luggage, paying cash, etc.
Since these checks are done by the airline, if you refuse, they will simply deny you boarding. It's their plane and they can really deny boarding to anyone for any reason. If you're an airline employee, tough luck... you're one more victim of management's efforts to show the general public we're nothing more than "overpaid bus drivers". Refuse and you're fired. The passenger denied may try to sue, but until someone sues and wins, this practice will continue.

As for the checkpoint searches being illegal, in my opinion they violate our Constitutional protection from unecessary search and seizure, especially next year when the screeners ARE government agents. Unfortunately, until someone decides to challenge it in court, the practice will not stop. Right now, they are using intimidation to keep the airline employees from challenging them and the general public is still drinking the government's red, white, and blue Kool-Aid.
Sad times are in store for our country if this continues unchalleged.

 

[Caveman]

I too believe that the searches are illegal and unconstitutional.
The government is requiring the airlines do do the screening. They have no choice. In that all airlines must do it I also have no choice but to undergo the illegal search if I want to travel freely about my own country.

I know I don't have to travel by commercial air and I could avoid the hassle by choosing to drive or charter my own a/c. Why doesn't the government search me before I travel by car or when I fly my own plane or charter one? Because it's illegal and the public outcry would be incredible. So where is the outcry about the gestapo tactics at the airport. If everybody flew everyday this crap would end. But they don't. Most folks fly once or twice a year and they have been duped into believing this is for their own good and for the safety of all. I don't want safety. I want freedom. Life is risky. Deal with it.

 

[Timebuilder]

The short answer is that your use of airline transportation is discretionary, and since the practice is well known to everyone who would anticipate that use, you are essentially volunteering to be searched as a condition of that use.

I'm not a lawyer, but I did play one on TV...

 

[XJAVRO]

here is some news for all you 121 pilots. Every time you are a "Random" selectee at the gate and you are in uniform that airline is wrong. I just got a copy of the FAA security memo, and it say that crew members in uniform are exempt from randon screening. Talk to your union about it. Our chief pilots and union reps are calling any stations we report. It doesn't matter if you are jumpseating, nonreving. If you are in uniform they can not select you. The only way this will end is if we make sure the gate agents(nazis) follow the rules the FAA has set.

 

[chperplt]

For the most part, I fly and commute on US Airways.. I always travel in unifom, and have never been selected for search at the gate.. The security area is a different story.

 

[XJAVRO]

I find most airlines are following the FAA memo, but Northwest is one of the worst. I travel on American all the time, and have never been selected. To any AA people on here you guys rule to jumpseat on!

 

[ksu_aviator]

The FAA is also hidding behind the commerce clause of the constitution. The commerce clause says that congress can create agencies to regulate commerce. The supreme court has ruled that that means regulations are not the same as laws, and therefore do not follow the same rules as laws. So, if you refuse a random screening you have actually broken a regulation and do not have the same rights as if you had broken a law. Of course congress also made laws prohibiting us from violating regulations, so if you violate a regulation you violate a law. But, because its not a law that you be randomly searched the constitution has not been violated. Its kind of iffy logic, but that's how congress and the FAA work. I don't agree with it, but then again I don't agree with most things our government does.

 

[avbug]

Airport screening, and random searches are legal, are not unconstitutional, and are not based on reasonable suspicion. The FAA derives it's powers and authority from the Federal Aviation Act of 1958, and the changes thereto. The Act is congressionally mandated, and constitutionally grounded.

Citizens are protected under the constitution against unreasonable search and siezure. The FAA is charged with ensuring (among other things) air safety. Those traveling by air do so knowing in advance that certain security requirements and measures exist. Submitting to those measures is a condition of travel. Purchasing a ticket implies consent. The execution or use of that ticket, grants that consent.

Likewise, for those of us who work in the cockpit, we have the privilege of holding an airman certificate and the privilege of exercising the certificate in our livlihood. The FAA grants that privilege. We do not have a right to fly; it is a privilege. Accoringly, we are subject to limitations established in conjunction with maintaining those privileges for the good of the general population. The FAA requires specific security functions as part of their charter; we submit to them as part of our obligations to the administrator. These searches are not illegal.

Unsavory for some, but not illegal.

 

[ifly4food]

Airport screening, and random searches are legal, are not unconstitutional, and are not based on reasonable suspicion. The FAA derives it's powers and authority from the Federal Aviation Act of 1958, and the changes thereto. The Act is congressionally mandated, and constitutionally grounded.

You forgot to say "in my opinion".

Citizens are protected under the constitution against unreasonable search and siezure. The FAA is charged with ensuring (among other things) air safety. Those traveling by air do so knowing in advance that certain security requirements and measures exist. Submitting to those measures is a condition of travel. Purchasing a ticket implies consent. The execution or use of that ticket, grants that consent.

So will they try to search us for driving a car next? Is buying gas consent? We're headed down a dangerous road here. It's only a condition of travel because the govervment says so... what's to stop them from future edicts that take away our freedom in the guise of "safety"?

Likewise, for those of us who work in the cockpit, we have the privilege of holding an airman certificate and the privilege of exercising the certificate in our livlihood. The FAA grants that privilege. We do not have a right to fly; it is a privilege. Accoringly, we are subject to limitations established in conjunction with maintaining those privileges for the good of the general population. The FAA requires specific security functions as part of their charter; we submit to them as part of our obligations to the administrator. These searches are not illegal.

Is walking a privillege? Taking a train? A bus?
If I wanted my governmevt to tell me travelling in my own country was a privillege granted by the government, I'd move to China.

Avbug, you incessantly pass off your opinion as fact. You aren't an airline pilot and you have no idea what we're going through until you do it first hand. And that's not a "personal attack", it's statement of a fact.

 

[avbug]

I didn't state "in my opinion" because what I stated was fact.

You'll note that your ATP certificate doesn't have operating rights, but operating privileges. You'll note that any certificate issued by the FAA is conditional, and is issued as a privilege, not a right.

The validity of the FAA as established by the Federal Aviation Act is not an opinion, and yes, it is constitutionally grounded. Accordingly, so is the authority. Kick against the pricks all you like, but thems the facts.

 

[Timebuilder]

I guess it's better to discuss these issues here, rather than on television.

I don't think crew searches will go on indefinitely, so we can view this as a temporary inconvenience for those of you who are enduring them. If you decide that this is too much of a burden for you to bear, I will volunteer to take your place, and I think several of the others here will volunteer to help out, too. Seriously, we all know that the crew is not the problem, and that this practice amounts to a temporary public relations practice to placate the public fears.

As some of you know, my background includes broadcast and print journalism, and due mostly to accrued life experience I changed my political persuasion several years ago. I have to add my two cents here, and tell you that what Avbug has said in this post is correct. In our representative republic, we empower our representatives to legislate and create regulatory bodies, and the constitutionality of that practice has long been upheld. Indeed, walking CAN be a privilege, using the example of a curfew during a time of rioting or other emergency, or as applied to a group of teens that are not yet legal adults.
I won’t bore you with all of the other examples. Suffice it to say that we, as a people, have decided, albeit in an indirect way, that many activities are subject to regulatory authority for the common good. We may not always agree with every individual manifestation of that authority, but as franchised citizens we must adhere to the edicts as issued and can challenge them through our representatives. This applies even if the rules seem stupid, silly, and harassing. We should be leaders in this regard, not whiners. This is a time when we should be going out of our way to be examples of compliance with the current requirements, and register our distaste in places like this, our companies, and our congress. Every passenger should hear nary a word of disgust from seasoned captain and fresh FO alike. I’ll think about it. Then, I’ll take off my shoes (apologies to the Firesign Theatre) for our industry.


Sure, we may not like the idea that our flying is a privilege, but remember: our greatest privilege is just being who we are, Americans. Some of the countries at the Olympics this past week complained that we are over-patriotic. This is only because they don’t have so much as a clue about us, and no reason for pride in their own nations. The reason we have become a target is that we occupy the top of this earthly heap. We know it. Bin Laden knows it. Don’t forget it.

 

[Lindy]

Avbug is Constitutionally Correct

First of all, many of us are extremely unhappy and frustrated with security screening. There are avenues to "vent" regarding security screening and the judgment (or lack therefore of) the security personnel. ALPA has a list of the "rules" which are to be standardized throughout the system. As with anything, to effectuate change it will take time and patience.

With respect to the Constitutional issues (serach) and the Commerce Clause, the following needs to be addressed:

1. The Contitution does afford a right for citizens to be protected from "unreasonable search and seizures." This right pertains to GOVERNMENTAL SEARCHES. A police officer mentioned what he could or could not use to establish "probable cause" and "search" an individual. The leading authority of this type of stop is known as the "Terry Case" (Terry v Ohio; decided by the US Supreme Court). It has since been coined a "Terry Stop" if someone is searched based on similiar facts. The protection affored to citizens is the fact that we are free from searches and seizures by the GOVERNMENT.


2. Hmmmm.....Federal Government will now be providing airport screening. Does this infringe upon my Constitutional Rights? This is NOT an issue. Additionally, pursuant to the Federal Aviation Act of 1958 and the Civil Aviaiton Act of 1938 (I could be wrong about the year....) the federal government has the power to regulate security and NOT be contrary to the Constitution. The basis of the power to regulate aviation is a derviative of the Commerce Clause (the Commerce Clause is one of the strongest aspects of the regulatory powers of our government).

The complaints that I have read, seen, and heard pertain to inappropriate behavior of specific security screeners AND the "process." Flight crew members want to be treated different because we are subjected to searches every day we go to work and others are not. Additionally, we have a superiority complex about what we do and think we should be treated different in the current security process.

I think there should be a "national" type id so that pilots (and should we extend this to flight attendants also???) can breeze through security. In order to obtain such an ID, there will be fingerprinting, criminal background checks, etc., to the level of being a LEO. Additionally, not every pilot will qualify to obtain a "national" id due to the prohibitive cost factor to be endured by the employer or the employee or just by the background of the candidate.

We didn't change the rules, someone else did. Unfoturnately it is now a different game in town and we need to learn to adapt and effectuate change so that the entire security process is "fair."

Can the airport security morass bleed over into other parts of our lives? It already has...SuperBowl Security and Olympic Security are just a few recent examples. Will it continue to spread? I hope not.

And if a case does make it out of motion and in front of a Federal District Court Judge, the privacy of one will be weighed against the safety of many. Take a guess who will have the best argument?

In my opinion, the issues that are important are not whether or to what extent they can continue to search airport passengers and personnel but executing the rules in a fair and consistent manner.

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.....

 

[aero99]

I don't see whats so wrong with what avbug stated. In fact he is correct in that flying is a privilege.

What a train or a bus or walking has to do with this post as IFFF stated puzzles me.

Avbug, just post "in my opinion" on every post so no one feels theatened next time you come to chat on this board. Why you have to qualifiy yourself everytime you post something is beyond me.

GEEZ, isn't this board for everyones opinion? Didn't know we had to pull out our qulifications to participate here.

 

[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."