Federal Judge Rules That Travelers Have a Clearly Established Right to Record TSA Screeners

On Tuesday, February 23, 2021, Judge John A. Gibney, Jr., U.S. District Court, Eastern District of Virginia, ruled that travelers have a clearly established right to record TSA screeners. Judge Gibney further ruled that the TSA agents involved in the lawsuit are not protected by qualified immunity.

The plaintiff, Dustin Dyer, filed the lawsuit against TSA agents, Shirrellia Smith and Natalie Staton, alleging violations of his First and Fourth Amendment rights when the TSA agents prevented Dyer from recording a pat-down search of his husband. Dyer’s husband was required to undergo a pat-down search because he carried infant formula that the agents could not open for testing. When Dyer asked the agents for permission to record the search, the request was denied. The TSA agents also ordered Dyer to then delete the already recorded video. The defendants argued that Dyer lacked an implied right of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Further, the defendants argued that they should be protected from Dyer’s First Amendment claim due to qualified immunity.

Judge Gibney applied a two-step test to determine whether a Bivens remedy existed against the TSA agents: First, whether the case at issue presents a new Bivens context and, second, whether special factors exist that might counsel hesitation to expand Bivens into the new context. Judge Gibney also considered whether an alternative remedy exists that might weigh against recognizing Bivens in the new context. Further, Judge Gibney weighed additional “special factors” such as national security and whether recognizing a new Bivens context would “invite an onslaught” of lawsuits.

As to Dyer’s Fourth Amendment claim, Judge Gibney first found that Dyer’s claim presented a new context from Bivens in that “TSA agents operate under a different statutory mandate from other law enforcement officers.” Judge Gibney continued on in his analysis and found that no special factors existed that might prevent expanding Bivens to imply a damages remedy for Dyer’s claim. Specifically, Judge Gibney did not find that Dyer’s claim “implicate[d] the national security concerns that have counselled against implying a damages remedy in other cases.” In fact, TSA policy permits individuals to record agents “if they do not interfere with the screening process or record sensitive information.” Although the defendants argued that Congress indicated a refusal to supply damages actions against TSA agents for constitutional violations, Judge Dyer disagreed.

As to Dyer’s First Amendment claim, Judge Gibney found that Dyer’s claim presented a new Bivens context because “[t]he Supreme Court has ‘never held that Bivens extends to First Amendment claims.'” (quoting Reichel v. Howards). Further, because the defendants did not separate their special factors argument to Dyer’s First and Fourth Amendment claims, Judge Gibney found that no special factors existed as to Dyer’s First Amendment claim.

Judge Gibney denied the TSA agents’ qualified immunity defense. In denying the qualified immunity defense, Judge Gibney first found that Dyer sufficiently pleaded a First Amendment violation. Judge Gibney further ruled that Dyer’s violated rights were clearly established both by the general constitutional rule and by a consensus of cases. In supporting this finding, Judge Gibney cited Tobey v. Jones, a Fourth Circuit case stating that “it is crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it.”

Additional Reading

Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners, Techdirt (March 2, 2021)

Dyer v. Smith et al (Case No. 3:2019cv00921)

Opinion in Dyer v. Smith et al

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