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Author
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Topic: TSA = Tremendously Stupid Asses
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Jim Ziegler
Jedi Master Film Handler
Posts: 753
From: West Hollywood, CA
Registered: Jul 99
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posted 12-03-2010 08:47 PM
quote: Steve Guttag
The 4th Amendment of the Constitution of the USA specifically prohibits the government (and the TSA is a US government agency) from Stop and Frisk and unwarranted search and seizures.
Steve, while they may be annoying, there is no 4th Amendment or other Constitutional violation in the TSA's screening activities. Under law these are considered to be voluntary searches. By passing though their checkpoint you are giving your consent to be searched. If you do not want to be searched, you don't have to go through their checkpoint. Additionally, you have no Constitutional right to fly on commercial aircraft, so the requirement that you pass through their checkpoint to do so also does not violate the Constitution.
BTW, the 4th Amendment protects you against "unreasonable" searches and seizures, not "unwarranted." In matters of law the semantics are important, and the concept of "reasonableness" is important in may aspects of criminal and constitutional law. Checking people for weapons before boarding an aircraft is clearly reasonable, so even if there was some circumstance where the search was not voluntary, it would likely pass muster as far as the 4th Amendment is concerned. There are many other circumstances where warrantless searches are allowed because they are "reasonable."
The issue with the TSA is not a legal one, but rather a public relations one. TSA's stock answer to legitimate questions about its policies and procedures are little more than "we did it because we can." TSA has failed to convince the American people that the scanners are safe, and, instead, have tired to make the pat downs so intrusive that people think twice about opting out. TSA agents are poorly trained, overreact to the slightest provocation, frequently display poor judgement, and, as an agency, it behaves as a petulant child. Most of the videos and such that you see out there are the product of someone going in with the intention of baiting a TSA officer into doing something stupid, and these officers most willingly oblige.
Overall, if you want to fix the TSA you must replace the leadership of both the agency and DHS with people who understand the basics of community policing and how to work in partnership with the citizens.
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Steve Guttag
We forgot the crackers Gromit!!!
Posts: 12814
From: Annapolis, MD
Registered: Dec 1999
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posted 12-04-2010 12:23 PM
quote: Jim Ziegler
Steve, while they may be annoying, there is no 4th Amendment or other Constitutional violation in the TSA's screening activities. Under law these are considered to be voluntary searches. By passing though their checkpoint you are giving your consent to be searched.
And your Constitutional law comes from? You don't loose Constitutional rights except by due-process...that is about it. Only the government would want you to "think" you have consented to give up your rights voluntarily...something you really can't do with respect to the government. Otherwise, every law would be written such that you would have to yield on your rights. The constitution is there to specifically put restrictions on what the federal government can do. The TSA, unlike many of the previous forms of airport security...are a part of the federal government and can not in any way shape or form, side step the constitution.
As to unwarranted searches and seizures...perhaps a poor choice of paraphrasing by me...the actual text does read:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Note, there is no provision for waiving the right too.
What constitutes a "reasonable" search? Normally, it requires a warrant if one is to enter into one's home or person. However, it can also be "probable cause" where a police officer or like person observes the situation that leads to search. In the case of an airport...one would think a "metal detector" going off would give probable cause but not the mere presence of wanting to fly on a plane. If you read probable cause cases, you will find often the the decision is a balance of the "PERCEIVED" invasion of privacy versus the potential harm from the lack of search. Since perception is involved, it leads to MANY court cases because it requires judges to make judgement calls about the legitimacy of the probable cause/warrant.
The fact remains, stop and frisk is unconstitutional. Those that are to be stopped/frisked by any federal or local government (or even private entities operating on the government's behalf) are bound by the 4th amendment. They are not to have a blanket search but a targeted one based on probable cause.
quote: Jim Ziegler
Checking people for weapons before boarding an aircraft is clearly reasonable, so even if there was some circumstance where the search was not voluntary, it would likely pass muster as far as the 4th Amendment is concerned.
Actually...that too is debatable and clearly a 2nd amendment issue. Though being on a private plane where the plane's owner/operator does not want your gun on is another issue all together. The pilot can have a gun.
quote: Jim Ziegler
The issue with the TSA is not a legal one
I firmly disagree with you. It is both, in my opinion.
When you set up a situation where there is little oversight or repercussions...then well yeah, it will run out of control.
This is one that is going to get settled in the Supreme Court. Unfortunately, with some recent court rulings, they seem to have been rather poor in their results (witness the recount of Florida's 2000 presidential race, campaign contributions by corporations to influence the government).
quote: Jim Ziegler
Additionally, you have no Constitutional right to fly on commercial aircraft
Oh really? That is between me and the commercial aircraft company as a business transaction. If you are referring to the Constitution not specifically specifying air travel as a means of liberty...check the 9th amendment out. Just because something is not called out in the constitution does not mean that you don't have a right to it.
Fear not...if things were cut and dried about the law/rights...we wouldn't have the busiest court systems in the world.
-Steve
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Jim Ziegler
Jedi Master Film Handler
Posts: 753
From: West Hollywood, CA
Registered: Jul 99
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posted 12-04-2010 10:17 PM
quote: Chris Slycord
If you refuse to go through the scanner and patdown, you aren't allowed to leave the premises, will be detained and questioned by TSA officers, and fined up to $11,000. It's not entirely voluntary when it has the threat of force behind it.
You have a choice as to whether or not you are going to enter the secured area. Once you have voluntarily entered, you have consented, for the purposes of law, to the search. Why is it this way? Because if it was not you would have potential terrorists trying to get contraband in and then backing out of the search if they thought they might get caught.
quote: Steve Guttag
And your Constitutional law comes from?
The numerous Constitutional law classes I had to take in college while I was earning my Bachelors in Criminal Justice. We spent more time on search and seizure issues than any other topic.
quote: Steve Guttag
You don't loose Constitutional rights except by due-process
Yes, you do. You can waive many rights. I.e. you have the right to remain silent, but you can waive that right by talking. You have the right to an attorney, but you can waive that right by refusing one. You have the right to a jury trial for serious offenses, but you can waive that right by requesting a bench trial - or just waive the trial altogether by pleading guilty. You have the right to not have your home searched without a warrant, but you can waive that right by consenting to a warrantless search. And, you have the right to not be patted down by a TSA agent, but you can waive that right by going through their checkpoint.
quote: Steve Guttag
What constitutes a "reasonable" search? Normally, it requires a warrant if one is to enter into one's home or person. However, it can also be "probable cause" where a police officer or like person observes the situation that leads to search.
Don't forget these exceptions to the warrant requirements:
Exigent circumstances (United States v. Cephas, et al)
Search incident to arrest (Arizona v. Gant)
Stop and frisk (Terry v. Ohio)
Plain view (United States v. Lee (1927) et al)
Vehicles (Carroll v. United States)
Inventory searches (Michigan v. Thomas)
Open fields (Hester v. United States)
There are several other exceptions to the warrant requirement, but you get the point. The key word in the amendment is "unreasonable."
quote: Steve Guttag
If you read probable cause cases, you will find often the the decision is a balance of the "PERCEIVED" invasion of privacy versus the potential harm from the lack of search.
The potential harm from lack of search of passengers on aircraft can be found here: http://www.youtube.com/watch?v=8Mz0_x7313I
quote: Steve Guttag
The fact remains, stop and frisk is unconstitutional.
A police officer conducting a stop and frisk is perfectly legal as long as the guidelines in Terry v. Ohio are followed. For TSA, again, you are consenting to the search as a condition of boarding a commercial aircraft. If you do not want to be searched, don't go through their line.
quote: Steve Guttag
Though being on a private plane where the plane's owner/operator does not want your gun on is another issue all together. The pilot can have a gun.
The Federal Government is well within it's Constitutional authority to regulate commercial air travel.
quote: Steve Guttag
Just because something is not called out in the constitution does not mean that you don't have a right to it.
And just because something is not spelled out in the Constitution does not mean the Federal Government cannot regulate it. The interstate commerce clause and the necessary and proper clause in Article 1 Section 8 gives the Congress wide latitude. To suggest that the founders would have not wanted federal regulation of aviation, given the significant impact it can have on public safety, is absurd.
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Steve Guttag
We forgot the crackers Gromit!!!
Posts: 12814
From: Annapolis, MD
Registered: Dec 1999
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posted 12-05-2010 10:52 AM
quote: Jim Ziegler
Yes, you do. You can waive many rights. I.e. you have the right to remain silent, but you can waive that right by talking. You have the right to an attorney, but you can waive that right by refusing one. You have the right to a jury trial for serious offenses, but you can waive that right by requesting a bench trial - or just waive the trial altogether by pleading guilty. You have the right to not have your home searched without a warrant, but you can waive that right by consenting to a warrantless search. And, you have the right to not be patted down by a TSA agent, but you can waive that right by going through their checkpoint.
Oh come on, you are better than that. One can choose to not exercise their rights but can just as quickly return to their use. i.e. you can waive your 5th amendment right answer questions...but just as quickly reinstate that right and refuse further questioning. It isn't like you've surrendered those rights for the duration.
quote: Jim Ziegler
Because if it was not you would have potential terrorists trying to get contraband in and then backing out of the search if they thought they might get caught.
Oops...so in this instance one can not retain their rights? Losing ones rights requires due process...I think your theory of merely walking into an airport as a voluntary waiving of one's rights is wrong.
There are far more robberies than skyjackings...yet the government can not say you waive your rights by walking down the sidewalk so the police, without probable cause can frisk you. The same holds for the public access of an airport.
quote: Jim Ziegler
The potential harm from lack of search of passengers on aircraft can be found here
Yes, that is indeed potential harm...yet as horrific as 9/11 was, the number of fatalities in that day pale in comparison to other forms of fatality. The amount of time wasted, the amount of "caught" items versus non makes the TSA security fall, for most, in my opinion fall outside of the reasonableness. The amount of time spent, the intrusion into innocent citizens' lives versus the benefit is rather great. In a similar case that has made it to the supreme court involving sobriety checkpoints, key points that were brought up were the number of fatalities of drunken driving, the detained time (25-seconds) and the percentage of people caught (2 out of 125). If you compare the stop and frisk at airports, you have a far longer detention, far fewer fatalities and a FAR FAR fewer caught versus frisked.
quote: Jim Ziegler
A police officer conducting a stop and frisk is perfectly legal as long as the guidelines in Terry v. Ohio are followed.
Which requires that a police officer has "reasonable suspicion"...such as a prisoner can be frisked for weapons to ensure the police officer's life is not in danger. By the nature of the "random" search, there is NO reasonable suspicion. However, if one walks through a metal detector and sets it off, one could at least see "reasonable suspicion" or even a higher standard of "probable cause" Note, in the Terry V Ohio involved a case where the police officer observed clearly suspicious behavior (casing a store front over a period time). Is going to an airport to board a plane for which you bought a ticket suspicious activity? What is the percentage of people that do that versus those that do it with ill intent (for the purposes of terrorist acts while aboard the plane)? It is unreasonable.
Regulating air travel (how the industry operates) is different from regulating the free travel of the citizens of the USA...when evaluating the government's authority as it involves the private citizen always involves that the laws fall within the constitution. The nation was founded on the notion of liberty and freedom and to that end, to move about without hindrance. Just because air travel had not been invented yet does not make it a special case outside the bounds of the constitution.
quote: Jim Ziegler
To suggest that the founders would have not wanted federal regulation of aviation, given the significant impact it can have on public safety, is absurd.
To suggest that the founders would have tolerated the airport security check points is the absurd part...they lived through that sort of society. It was so important that the prevention of search and seizure was in the Bill of Rights and came in at #4. Right after free expression, keeping ones guns and keeping soldiers out of private homes except in times of war and even then as defined by law (the 3rd amendment often gets lost in the more flamboyant shuffle of the hot button ones but it, none-the-less, does give an insight to the mind set of how the constitution was formed as well as the bill of rights and what was on people's minds at that time)
This issue will get a ruling in the Supreme court sooner or later. I hesitate to say settled as the opinions on ones personal privacy seems to fluctuate with the times.
-Steve
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