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Fourth Circuit Denies TSA Agents' Qualified Immunity-Based Motion to Dismiss Plaintiff's First Amendment Claim

Written by FEDagent on . Posted in Case Law Update

In this case, Aaron Tobey, the Plaintiff-Appellee, alleged he was retaliated against for exercising his First Amendment rights when at Richmond International Airport (RIC), the Defendants-Appellants, Transportation Security Administration (TSA) agents and RIC police, seized and arrested him for displaying on his chest the text of the Fourth Amendment to the United States Constitution. The Court of Appeals decided the issue of whether the TSA agents were entitled to qualified immunity when they allegedly violated Tobey’s First Amendment right by radioing for assistance because of the message Tobey sought to convey or because of some other reasonable restriction on the First Amendment activity in the security screening area. The Court of Appeals held that the TSA agents were not entitled to qualified immunity.

TSA agents screen and search airline passengers at airports, randomly selecting certain passengers for enhanced secondary screening. Under the then-current enhanced secondary screening policies, passengers had a choice of submitting to either an Advanced Imaging Technology (AIT) scan or a full-body pat down.

On December 30, 2010, Tobey was scheduled to fly from Richmond to Wisconsin. In anticipation that he might be subjected to enhanced screening, Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Prior to entering the AIT scan, Tobey “calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest.” An agent informed Tobey he need not remove his clothes. Tobey “calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.”

At that time, a TSA agent radioed for assistance and RIC police officers arrived on the scene to handcuff and arrest Tobey. RIC took Tobey to the police station where he was questioned and threatened with violating criminal sanctions and was eventually charged with disorderly conduct in a public place.

Tobey brought an action in the U.S.District Court for the Eastern District of Virginia against the RIC police under 42 U.S.C. § 1983 and against the TSA agents under Bivens v. Six Unknown Named Agents for the Fed. Bureau of Narcotics, 403 U.S. 388 (1974), alleging violations of his First, Fourth, and Fourteenth Amendment Equal Protection Clause rights. The TSA agents moved to dismiss the claims, asserting qualified immunity. The district judge sustained the motion as to the Fourth and Fourteenth Amendment claims, but denied the motion for First Amendment claim. The TSA agents appealed the denial to the U.S. Court of Appeals for the Fourth Circuit.

On appeal, the TSA agents argued that Tobey did not allege a facially valid First Amendment claim and even if he did, qualified immunity bars such a claim. The TSA agents also argued that they did not violate a clearly established constitutional right.

In deciding the issue, the court of appeals looked to established case law on qualified immunity. Qualified immunity "shield[s] [officials] from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated."

To determine whether Tobey’s complaint should survive a qualified immunity-based motion to dismiss, the court exercises their "sound discretion" in following the two-step inquiry laid out in Saucier v. Katz, 533 U.S. 194, 201-02 (2001) by analyzing: (1) whether a constitutional violation occurred; and (2) whether the right that was violated was clearly established.

For the first element, the court of appeals considered that Tobey alleged that he removed his sweatpants and t-shirt to reveal the text of the Fourth Amendment on his chest. Appellants told Tobey that he did not have to remove his clothing, but he responded that he wished to express his views that the screening process was unconstitutional. Immediately after this assertion, Appellants engaged RIC police officers to arrest Tobey because the TSA agents could not do so themselves. RIC police handcuffed and seized Tobey with no questioning and without telling him why he was being arrested. The court of appeals determined that Tobey’s First Amendment claim survives a qualified immunity-based motion to dismiss and his “complaint satisfies all three elements of a First Amendment claim as he alleges: (1) he engaged in constitutionally protected non-violent protest; (2) he was seized as a result of the protest; and (3) the temporal proximity of his peaceful protest and his arrest, unsupported by probable cause, shows Appellants engaged in impermissible retaliation.”

Thus, the court of appeals determined that Tobey’s factual allegations “adequately support Mr. Tobey’s legal assertion that he was unlawfully seized in retaliation for exercising his protected First Amendment rights.” Further, the court of appeals determined that “If Appellants caused Mr. Tobey’s arrest solely due to his ‘bizarre’ behavior, Appellants’ cannot be said to have acted reasonably. This is especially the case given that the First Amendment protects bizarre behavior.” The court of appeals explained that bizarre does not equal disruptive and it is not enough to effectuate an arrest.

With regard to the second element of whether Tobey’s First Amendment rights were clearly established, the court of appeals considered “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” The court of appeals determined that it is “clear that the First Amendment protects peaceful non-disruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it.” Thus, the court of appeals considered Tobey’s silent and non-disruptive protect in a public forum and held that Tobey’s “right to display a peaceful non-disruptive message in protest of a government policy without recourse was clearly established at the time of his arrest.”

The court of appeals noted that there remain reasonable measures that the TSA agents could have taken to ensure safety, such as asking Tobey about his intentions or fining Tobey for violating any on-point TSA regulations, or even asking Tobey to put his shirt back on.

Therefore, the U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s denial of Appellants’ qualified immunity motion to dismiss of Tobey’s First Amendment claim.

The case is Tobey v. Jones, No. 11-2230, decided, January 25, 2013. To read the entire decision, visit:

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