Airport Screening Protest

Facts: On Dec. 30, 2010 Aaron Tobey was at an airport on his way to board a flight to attend his grandfather's funeral. Like all other passengers, Tobey entered into the airport security area where several Transportation Security Administration (TSA) agents were screening passengers and personal property. Tobey opposed the total body screening procedures because he thought the procedure violated the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable searches and seizures. Tobey placed his property on the security belt and removed his shirt when asked to go through the body scanner. Tobey had written on his chest with a black marker that he objected to TSA's enhanced full body screen. A TSA agent radioed for assistance. Tobey was told to remain in front of the body scanner. A short time later, Tobey was handcuffed and forced through the body scanner by the police. Tobey was then arrested and taken to the airport police station. Tobey was searched and told that he would have to go before a magistrate judge prior to being released from custody. About an hour and a half later, after Tobey spoke with the judge, the police released him with a summons to appear in court to answer a charge of disorderly conduct. The charge was later dropped.
Tobey sued the Secretary of the Department of Homeland Security, the TSA agents and police officers involved in the incident, and several other agencies. He claimed that several of his constitutional rights were violated during the incident. Specifically, Tobey alleged that he was improperly arrested, that he was discriminated against due to his non-violent protest, and that TSA treated him differently from other passengers. The defendants filed a motion to dismiss and argued that Tobey's claims against the police officer and TSA agent and agencies must fail because they were shielded from liability under qualified immunity.

Decision: The district court granted the defendants' motion to dismiss as to all but one count. The court held that Tobey had failed to state a claim in the first three counts of his complaint. Further, the court rejected Tobey's contention that the TSA agents violated his constitutional rights by ordering his detention and arrest after he removed his shirt, displaying the words of protest he had written on his chest. The court found that it was reasonable for the TSA agents to summon the police and that because both the actions of the TSA agents and the police officer were covered by qualified immunity, the claims against them must be dismissed. However, the court denied the motion to dismiss Tobey's discrimination claim against the agents because the question of whether Tobey was detained and arrested because of the nonviolent message written on his chest.

Implications: A government official may not be entitled to qualified immunity when a plaintiff can show that the official's conduct violated a constitutional right. (Tobey v. Napolitano, No. 11-0154, U.S. District Court for the Eastern District of Virginia, Aug. 30, 2011. Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926, ext. 10 or email: custserv@straffordpub.com.)

Discrimination Alleged After Detention

Facts: Samaad Bishop, who is black, purchased items including a camera and a bottle of water at an electronics store. As Bishop was about to leave, several employees stopped him and asked to see his sales receipt. Bishop asked if they thought he was shoplifting, and the employees said no. Bishop refused to show the employees his receipt and attempted to leave the store. Bishop alleged that the employees then attacked him and called the police. After the police arrived, Bishop showed the officer his sales receipt and was released. Bishop claimed that the store violated the "full and equal benefit" clause of the US Constitution by racially discriminating against him in a manner that deprived him of the full and equal benefit of the law.

In order to assert such a claim, Bishop was required to prove a racial motivation behind the store employees' conduct as well as deprivation of his legal rights.

The store filed a motion to dismiss the suit. It also asked to be released from responsibility because it was the store's parent company that should have been named in Bishop's suit.

The district court held that Bishop offered sufficient facts to allege the employees' actions were intentionally and purposefully discriminatory based upon Bishop's race. The district court noted that an inference of discrimination arises when an individual of one race is treated less favorably than those of another race who are similarly situated. The district court held that a jury hearing the evidence might reasonably conclude the store employees' actions were racially motivated and deprived Bishop of his legal rights. However, the court held that Bishop's state law claims for false arrest, false imprisonment, battery, assault and intentional infliction of emotional harm were subject to a six-year statute of limitations.

Decision: Both Bishop and the store filed motions for reconsideration. Bishop's motion for reconsideration was denied. The court held that his detention and questioning by the police was proper because they were responding to a call; therefore, the officers did not need probable cause to ask the plaintiff to show his sales receipt. The court also rejected Bishop's argument that the store associates were acting as official state actors because they had conferred with the police officers. Finally, Bishop's argument that he was prohibited from travel by the store employees was rejected because the constitutional provision guarantees the right to interstate travel only.

The store's claim that its parent company should be named as the party to the complaint was granted. Also, Bishop was given the opportunity to amend his complaint and name the parent company as a party defendant.

Implications: A store loss prevention employee will not be treated as a state actor merely because the company participates in a security program with the local police department, or merely because the employees confer with the police officer after the officer is called to assist the store employees. While investigating a call by a retail store, the police may ask a shopper to see a sales receipt while not having probable cause to detain or arrest the shopper. (Bishop v. Best Buy Co., No. 08-8427 (U.S. District Court for the Southern District of New York Sept. 8, 2011. Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926, ext. 10 or email: custserv@straffordpub.com.)

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