Citing Secret Order, Federal Court Dismisses Airline Passenger Lawsuit Against DHS & TSA Over Scanners, Virtual Strip Searches & Full-Body ‘Rub-Downs’

(THE RUTHERFORD INSTITUTE NEWS)   A federal court has dismissed a Fourth Amendment lawsuit filed by The Rutherford Institute challenging the Transportation Security Administration’s (TSA) airport security screening policy of requiring air passengers to either submit to virtual strip searches involving advanced imaging technology (AIT), which exposes intimate details of a person’s body to government agents, or submit to highly invasive pat down searches during which TSA agents may go so far as to reach inside a traveler’s pants. U.S. District Court Judge Henry H. Kennedy, Jr., justified his dismissal by declaring that the court has no jurisdiction over the case, citing a secret order issued by the TSA which requires that the D.C. Court of Appeals hear any reviews of TSA orders. Insisting that it contains “sensitive security information,” the government has yet to make public the order embodying the TSA enhanced screening procedures.

The complaint in Adrienne Durso v. Janet Napolitano is available here.

“We the people need the courts to protect us against virtual strip searches and other excessive groping of our bodies by government agents, especially when there’s no suspicion of wrongdoing,” said John W. Whitehead, president of The Rutherford Institute. “Whether it takes place in an airport or a train station, this type of activity violates fundamental rights protected by the Constitution.”

Insisting that Americans do not shed their privacy rights when entering an airport or boarding a plane, The Rutherford Institute filed a Fourth Amendment lawsuit in federal court in December 2010 against Janet Napolitano, secretary of the U.S. Department of Homeland Security (DHS), and John Pistole, administrator of the Transportation Security Agency (TSA), on behalf of three airline passengers who were subjected to invasive body searches by TSA agents under the agency’s enhanced screening and pat-down procedures.

Adrienne Durso, a recent breast cancer survivor, was repeatedly and aggressively groped by TSA agents in the area where she had undergone a mastectomy, even after informing agents of her condition. Chris Daniels, a frequent business traveler, was aggressively and repeatedly touched in his genital area after initial screening showed an abnormality in his genitals that was the result of a childhood injury. When Daniels asked to leave the security area and forego flying rather than submit to the intimate groping, he was told that he was not free to leave and would have to submit to the enhanced pat-down.

The third traveler, C.N., a 12-year-old girl traveling with family friends, was pulled out of line while passing through security and subjected to an AIT scan, which exposes intimate details of a person’s body to government agents and has been called a virtual strip search, without the knowledge or consent of her adult guardians, leaving her frightened and traumatized. Her adult companions were screened solely with a traditional metal detector.

In dismissing the lawsuit, Judge Kennedy relied upon a statute giving the D.C. Court of Appeals “exclusive jurisdiction to affirm, amend, modify or set aside” an order of the Administrator of the TSA. Because the enhanced screening procedures are set forth in a Screening Checkpoint Standard Operating Procedure (SOP) issued by the TSA, Judge Kennedy ruled that only the appellate court could hear the plaintiffs’ claims.

Affiliate attorney Jason Gosselin of the Drinker Biddle Reath law firm in Pennsylvania is assisting The Rutherford Institute with the lawsuit.

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