1st Circuit Injunction Re: TSA's New Mandatory AIT Search Rule Fully Briefed (s.ai)

saizai writes: I just filed my reply to the TSA's opposition to an emergency motion for preliminary injunction and temporary restraining order (PI/TRO) against the TSA's new policy that arbitrarily mandates some people to go through electronic strip search ("AIT"). Case website here (will be kept updated). Court order expected soon, though impossible to know for sure.

I've also released 3 FOIA docs (see 2015-12-30 update), which I submitted as exhibits:

• MD 100.4 2012-01-25 Transportation Security Searches (11p, full) — showing TSA's expansion to "bus, train, [and] other public conveyance"
• SPOT validation study Vol 1 Ch 4 — Descriptive analyses — summary of sources for items (1p) — showing 90% of what they find is immigration and drug related, not weapons
• SPOT validation study Vol 3 App F — Supporting tables — prohibited items data (2p) — giving breakdown list of "prohibited items" they find

See previously:

• Motion Filed In 1st Circuit To Enjoin TSA's New Mandatory "AIT" Screening
• TSA Body Scanner Opt-out No Longer Guaranteed

Comments

Summary

[Etherwalk]

Someone who is not harmed lacks "standing" to bring a case in federal court, because the constitution requires there be an actual case or controversy--federal courts lack the power to issue advisory opinions. For a constitutionally protected interest, the plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent (that is, neither conjectural nor hypothetical; not abstract). The injury can be either economic, non-economic, or both.

The TSA is arguing the plaintiff can't bring the case because he hasn't been body-scanned. The plaintiff is arguing only the TSA knows whether they will body scan him and they haven't told the court, so you have to assume they will. The plaintiff also goes on about plaintiff's protected liberty interest in international travel, but that doesn't address the question of whether the harm to plaintiff is the kind of concrete, particularized, actual, and imminent harm necessary to give the plaintiff standing to sue. Unless a lot more of that was in the complaint, the judge isn't going to find it sufficient to issue the injunction.

There are some merits arguments too, but IRL judges care a LOT about standing. This does not prevent someone from filing another lawsuit in the future, and there may be some opportunity to further the argument in the main part of the lawsuit after the injunction fails to issue.

Re:Summary

[saizai]

I do in fact have a ticket of that sort. I refuse to go through scanning. If they won't let me board because of that, then I will have much better standing than I do now, but there's no way to guarantee that, and there's chilling effect from the mere threat.

Re:Thank you.

[jaffray]

Well, supporting Sai's Patreon is a decent place to start. I've been tossing him $10/mo for a while now, it's a pittance but at least it's something. He's been shockingly effective for someone who's just One Random Guy with practically no support. https://www.patreon.com/saizai

Re:OP & litigator here

[jaffray]

John Brennan did pretty much that, stripping naked in protest of invasive TSA procedures. He was arrested for indecent exposure, taken to jail, and fined $1000 by TSA for "interference with screening personnel." He was found not guilty on the indecent exposure charge, the fine is still in appeals 4+ years later, but I'm pretty sure his legal expenses are in five figures.

I wouldn't for a moment discourage you from this plan, but please do be aware of what you're getting into, and the extent to which they will fuck with you.