When Nadine Pellegrino was arrested in 2006 after a physical confrontation with agents of the Transportation Security Administration at Philadelphia International Airport, she probably had no idea that the outcome of her situation would result in a divided panel of three judges of the United States Court of Appeals for the Third Circuit in Philadelphia ruling on Wednesday, July 11, 2018 that agents of the Transportation Security Administration who operate security checkpoints at airports nationwide cannot be sued over allegations of abuse by passengers.
TSA Agents Immune From Being Sued Regarding Allegations of Abuse
Pellegrino and her husband Harry Waldman were on their way traveling home to Florida with three bags: a rolling tote; a larger rolling bag which would fit in the overhead storage compartment of the airplane; and a small black canvas bag. After Pellegrino passed through a metal detector, an agent of the Transportation Security Administration directed her to step aside for further screening. A few minutes later, Thomas Clemmons — who is also an agent of the Transportation Security Administration — arrived and began to search through her bags.
After Pellegrino requested a private screening because she believed that Clemmons was treating neither her nor her bags respectfully, she alleged that Clemmons then “walked off with a very arrogant, negative, hostile attitude”; prompting Nuyriah Abdul-Malik to replace Clemmons in conducting the screening process.
Pellegrino thought that the gloves used by Abdul-Malik to search her luggage were not clean and asked her to put on new ones. After Abdul-Malik complied with her request, Pellegrino was then led into an examination room with Abdul-Malik, Laura Labbee and Denise Kissinger — all of whom are female agents of the Transportation Security Administration.
The screening process as conducted by Abdul-Malik was unnecessarily rough, according to Pellegrino; and she considered the screening by all three women as invasive because it extended to her credit cards, coins, mobile telephone, and lipstick — even to the point of accusing them of damaging her eyeglasses and jewelry; and calling them a derogatory term. Additionally, Pellegrino threatened to report Labbee — herself a supervisor — to the authorities of the Transportation Security Administration.
Once Abdul-Malik finished searching the rolling tote, she had trouble zipping it closed and had to press her knee into it to force it shut. When Pellegrino asked Labbee for permission to examine the tote — which she believed Abdul-Malik had damaged — that request was denied. After Abdul-Malik had searched the largest of the three bags — which contained clothes and shoes — and Kissinger finished swabbing and testing, Pellegrino was told that she could leave the screening area.
According to this official document, what happened next is as follows:
Instead, Pellegrino saw that Abdul-Malik had not re-packed her shoes, asked if she intended to do so, and was told ‘no.’ At that point, intending to re-pack her bags outside of the screening room, Pellegrino tossed her shoes through the open door toward the screening lanes and began to carry her largest bag out of the room. In the process, according to Labbee and Kissinger, she struck Labbee in the stomach with the bottom of the bag. When Pellegrino then returned to the screening room for her smaller rolling tote, Abdul-Malik allegedly stood in her way, forcing her to crawl on the floor under a table to retrieve it. According to the TSOs, Pellegrino then struck Abdul-Malik in the leg with this bag as she was removing it. Although Pellegrino denied (and has consistently denied) that either bag touched either TSO, Labbee and Abdul-Malik immediately went to the supervisor’s station to press charges against Pellegrino.
Labbee and Abdul-Malik summoned for law enforcement officers to arrest Pellegrino, who was eventually charged with ten counts of felony aggravated assault, simple assault, making terroristic threats, and “possession of instruments of a crime.” When police officers arrived, Pellegrino was frisked, handcuffed, and arrested. She was eventually acquitted partially because of rulings and circumstances which limited the trial testimony that the female agents of the Transportation Security Administration could present.
In July of 2008, Pellegrino submitted a claim to the Transportation Security Administration concerning the alleged misconduct of the three agents and requesting damages of $951,200.00. The claim was denied by the Transportation Security Administration by letter almost one year later, which prompted Pellegrino to file a lawsuit in 2009. The United States District Court for the Eastern District of Pennsylvania granted relief for property damage; but said the accused agents of the Transportation Security Administration could not be held individually liable for their conduct. Curtis Joyner — who was presiding judge — dismissed the case because federal employees are generally immune from lawsuits against them unless they are “investigative or law enforcement officers” as per the Federal Tort Claims Act. The portion of the claim pertaining to property damage was settled out of court.
The Ruling
“Pellegrino’s claims are therefore barred by the government’s sovereign immunity, and we will affirm the District Court’s judgment dismissing this action,” Cheryl Ann Krause — who is one of the three judges on the panel who arrived at the decision — wrote with Joseph Scirica in upholding the ruling of the lower court…
…but Thomas Ambro warned in a dissent that travelers would have no recourse if they feel mistreated by agents of the Transportation Security Administration, who should be subject to lawsuits that apply to “any officer of the United States who is empowered by law to execute searches, to seize evidence or to make arrests for violations of federal law” when they choose to rigorously search the bags and bodies of passengers.
The panel of judges also revisited the question of when a search should trigger protections afforded to passengers by the Fourth Amendment of the Constitution of the United States; and they are “sympathetic to the concerns this may raise as a matter of policy, particularly given the nature and frequency of TSOs’ contact with the flying public.”
Summary
The dissenting judge wrote that the opinion of the court “leaves several plaintiffs without a remedy, even if a TSO assaults them, wrongfully detains them, or fabricates criminal charges against them.” Furthermore, he opined that “I do not believe this is what Congress intended.”
That is the inherent issue with the ruling: with extremely limited legal options available to them, passengers have little legal recourse against the Transportation Security Administration — even if some of the allegations are outrageous. For example, what if a passenger believes that he or she was groped by an agent of the Transportation Security Administration?
Even though the court noted that “§ 2680(h) requires TSOs to be ‘officers of the United States’, I disagree. They are employees of the federal government; but they are not trained as official officers. I refuse to acknowledge any employee of the Transportation Security Administration as officers unless and until they receive the proper training and earn the official designation as such. The panel of judges even acknowledged that when the Transportation Security Administration was created, the initial job description given to its employees at airport checkpoints was simply screener. Although this designation was later switched to the term transportation security officer for a purpose of little more than boosting morale, actual federal law enforcement officers are given the power to execute arrests and carry firearms.
Although egregious cases involving agents of the Transportation Security Administration seem to have been mitigated in recent months and I rarely have a negative encounter with them, I remain unconvinced that the agency is keeping the flying public as secure as it claims; and I believe that the agency needs to undergo significant improvements — especially pertaining to how passengers are treated, as the agency is charged with keeping passengers safe and secure…
…but even with that opinion, I remain undecided as to whether or not Nadine Pellegrino could have avoided the confrontation without abandoning her legal rights and protections — and even wonder if she played a role in precipitating the events which occurred in 2006.
Photograph ©2018 by Brian Cohen.
