dustin dyer – Techdirt (original) (raw)

Appeals Court Hands Immunity To TSA Agents Who Forced Man To Delete His Recording Of Them

from the sure-it's-a-violation,-but-we're-not-going-to-offer-a-remedy dept

Yeah, this is not great. This is yet more case law basically saying don’t bother suing federal agents because, unless they’ve very specifically done the same thing other federal agents have been held accountable for, they’re just going to walk away from lawsuits.

The Supreme Court’s 1971 Bivens decision may have created a cause of action for citizens whose rights have been violated, but every year since has seen repeated narrowing of an already narrow decision. It doesn’t matter whether a federal officer filled you full of bullet holes from across the US/Mexico border or, less horrifyingly in this case, made you stop recording a patdown of your loved ones and forced you delete the recording. Either way, the government wins and more precedent is established taking each subsequent constitutional violation by a federal agent further and further away from a judicial remedy.

In 2019, Dustin Dyer, his husband, and their children were attempting to board a plane at a Virginia airport. Dyer and their kids went through. His husband did not. TSA agents detained him to perform a pat down supposedly related to the infant formula he was carrying which TSA agents could not open.

Dyer stood about 10 feet away from the pat down and began recording. TSA agent Natalie Staton noticed he was recording and asked him to stop, claiming this passive recording from 10 feet away somehow “impeded” the other agent’s ability to “do his job.” Dyer reasonably asked for clarification of this assertion by Staton. This was ignored as Staton went and grabbed her supervisor, Shirrellia Smith.

Dyer asked Smith if he could continue recording. Smith said no. Dyer stopped recording. Smith then ordered Dyer to delete the recording while Staton shoulder-surfed to ensure the ordered deletion took place.

Dyer sued. He reasonably claimed this was a violation of his First and Fourth Amendment rights by the TSA agents.

He won. Or rather, the TSA agents weren’t granted immunity on his Bivens claims by the circuit court. The 2021 decision [PDF] said several important things. First, it recognized a right to record public employees — a right that has yet to be recognized at the appellate level with a prejudicial decision.

It went another crucial step further: it said the alleged First and Fourth Amendment violations could be addressed under Bivens. This was brand new, as higher level courts (including the Supreme Court) have yet to extend the Bivens decision to cover First Amendment violations. But, as the court saw it, the violation of Dyer’s First Amendment rights was so “crystal clear,” these federal agents could not avail themselves of qualified immunity.

Furthermore, it said that even if the TSA has some legitimate national security directives to address that may curtail constitutional rights, this isn’t one of them. The TSA can still perform its important national security work while people record from a safe distance away. And allowing these officers to be sued does nothing to deter the TSA and its employees from continuing to do this (allegedly) important work.

Allowing damages in this case would not hamper TSA’s efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents’ ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

Well, that’s all over now. The findings of the lower court have been swept away entirely by the Appeals Court, which says none of this is right. It sides (as it has to) with the Supreme Court’s extremely limited interpretation of plausible Bivens actions (i.e., heads, the government wins; tails, the plaintiff loses)

Everything good about the lower court’s decision no longer matters. The TSA agents get a free pass exactly for the reasons the lower court said they shouldn’t. (via Short Circuit)

First, the court [PDF] (unbelievably) claims that the correct remedy for rights violations by TSA agents is the TSA’s complaint box (the Traveler’s Redress Inquiry Program [TRIP]) rather than the federal court system. And if it isn’t, well… take it up with your local Congress rep, I guess.

[T]he question is not whether TRIP maps neatly onto Appellee’s claim. The question is whether Congress has acted or intends to act. And in this context, Congress has acted by establishing TRIP.

While TRIP may not squarely address complaints by an individual similarly situated to Appellee, that silence does not give this court license to usurp Congress’s authority in an area where Congress has previously legislated. That is particularly so because Congress has limited judicial review of TSA decisions and refrained from providing any financial remedy for passengers against TSA employees. For these reasons, we hold that Congress, not the judiciary, is better equipped to provide a remedy here.

The same thing goes for the other part: that recording agents does not interfere with the TSA’s national security directives. Here, the court doubles down on bad precedent and deference to a branch of the government that has rarely, if ever, felt like making the TSA better or more accountable to US citizens.

While we have never addressed a Bivens claim against TSA agents, the Third Circuit has declined to extend a Bivens remedy based upon TSA’s role in national security. Vanderklok, 868 F.3d at 189. In Vanderklok, the Third Circuit held, “the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context. The dangers associated with aircraft security are real and of high consequence.” We agree. And although Appellee claims he did not pose a national security risk, it is not our task to ask “whether Bivens relief is appropriate in light of the balance of circumstances in th[is] ‘particular case.’” Egbert, 142 S. Ct. at 1805. To avoid “frustrat[ing] Congress’ policymaking role,” we instead ask whether Congress is better suited than the courts to conduct that balancing, id. at 1803, 1805.

Sure, ask. Ask away. Is Congress “better suited” to create a form of remedy for rights violations by federal employees? Possibly. But it never will because [bangs Fourth Circuit’s head repeatedly against the bench] CONGRESS. IS. COMPOSED. ENTIRELY. OF. FEDERAL. EMPLOYEES.

And that’s not the most ridiculous part of this decision that converts real rights violations into rhetorical questions for the sole sake of giving federal employees a free pass. The Fourth Circuit follows all of this pointless deference and refusal to act as a check and/or balance by claiming, with an apparently straight face, that allowing TSA agents to be sued for violating First Amendment rights would threaten the security of the nation.

As the Supreme Court has recognized, “[n]ational-security policy is the prerogative of Congress and the President,” and to impose damages or liability is likely to “caus[e] an official to second-guess difficult but necessary decisions concerning national-security policy.” Thus, creating a cause of action against TSA agents could “increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers” or disruptions at security checkpoints. The nature and gravity of these risks, and whether they are outweighed by countervailing interests in judicial relief for passengers, make such a situation ill-suited to judicial determination

There it is: the third branch of the government says let the other two handle it, deferring to branches who have changed almost nothing about remedies for federal rights violations in the 50+ years since the Bivens decision. Sure, we should ask for legislation from the bench. But we should also expect them to realize rights violations when they see them and be extremely hesitant to allow government employees to walk away from the damage they’ve done before a jury can take a look at the facts.

Filed Under: 1st amendment, 4th amendment, bivens claim, dustin dyer, filming police, natalie staton, qualified immunity, shirrellia smith, tsa

Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners

from the have-you-tried-not-being-assholes-all-the-time? dept

It’s pretty clearly established you have the right to record public servants as they perform their public duties. There are a few exceptions, but for the most part, if you’re not interfering with their work, record away. Public servants hate this, of course, but there’s not much they can do about it. Sure, they can try to use local laws to shut down recordings, but those efforts have routinely been rejected by federal courts.

Enter the TSA and some agents who felt they shouldn’t be recorded doing their work. The TSA may believe it’s doing valuable national security work that can’t be recorded by third parties, but it’s actually doing nothing of the sort. There’s nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.

The TSA agents in this case [PDF] felt they had a right to not be recorded. That’s not actually a thing, as the court reminds them. (via the Volokh Conspiracy)

The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer’s husband did not. TSA agents began their pat down of Dyer’s husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was “impeding” the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.

Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to “order” Dyer to delete his recording. Which he did.

_Smith ordered Dyer to delete the video while Staton watched. “Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone…_”

The family was then allowed to leave. Staton recovered his deleted video. Then he filed this lawsuit.

The TSA claimed Dyer had no right to record TSA agents. It also said he had no cause of action and, even if he did, qualified immunity shielded the involved agents from this lawsuit.

The court disagrees. First, it points out the TSA’s work isn’t as essential as it thinks it is. It can’t dodge a Bivens lawsuit by claiming some sort of national security exemption. The court says passenger screening does not implicate “diplomacy, foreign policy, or national security interests.” Therefore, the TSA can’t have the suit dismissed on those grounds. And that keeps Dyer’s Fourth Amendment claim viable.

It also can’t have it dismissed on qualified immunity grounds. As the court points out, the TSA’s own policy allows passengers to record agents while they screen travelers.

Allowing damages in this case would not hamper TSA’s efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents’ ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

The TSA argued (wait for it…) that because it does not train agents to respect the Constitution, agents can’t be sued for violating Constitutional rights. Ridiculous, says the court:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

Although Bivens has never been applied to First Amendment violations, the court chooses to apply it here because it’s clearly established the public has a right to record public officials.

Courts across the country agree that incident to the “right to gather news,” citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

[…]

[T]he defendants’ demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff’s First Amendment right…

And the right is clearly established.

According to the Fourth Circuit, “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.” Here, Dyer sought to record, from about ten feet away, the TSA conducting a pat-down search of his husband. The TSA agents directed him to stop. Dyer’s allegations fall squarely within this “crystal clear” right.

It’s well-established people can record public officials in public. Officials can’t pretend this right doesn’t exist just because they don’t want to be recorded. This has been clear for years. The chain of events here did nothing more than convert these TSA agents from public servants to lawsuit defendants. None of this needed to happen. And none of it was justified.

Filed Under: 1st amendment, dustin dyer, recording, transparency, tsa