Now, with the help of the ACLU, Bierfeldt is suing Homeland Security Czar Janet Napolitano for the trouble. Via Patrick at Popehat, here is a copy of Bierfeldt’s complaint, which includes this curious paragraph:
It is well established that subjecting airline passengers to limited searches designed to detect weapons and explosives is consistent with the Fourth Amendment. But it is equally clear that such search authority constitutes a narrow exception to the Fourth Amendment’s basic prohibition of suspicionless searches, and that authority is carefully circumscribed to serve its limited purpose. As a matter of policy or practice, however, TSA has attempted to enlarge its authority, untethering it from the pressing but limited purpose of protecting civilian aviation.
I hate to be picky, but who told the ACLU that it’s up to them to give away my 4th Amendment rights? It is hardly well established that airline passenger searches are an exception to the 4th Amendment, nor does my 4th Amendment provide a “basic prohibition of suspicionless searches.” My 4th requires a warrant issued by a neutral magistrate upon probable cause. My 4th has no airplane exception. If I choose to go on a plane, I consent to being subject to a search for weapons and explosives. If I’m not in the mood for a search, I can turn around and walk toward the train station. But there is no new exception.
To the extent that we are subject to search upon seeking to board an airplane, it is an administrative search (rather than a law enforcement search) to which we willingly submit by virtue of making the decision to fly on a commercial carrier. No big deal, but no exception to the warrant requirement either.
One might think that between the ACLU and the libertarians, someone would have a clue about the scope of the 4th Amendment, both as a matter of existing law and as a matter of how they interpret the vagaries of existing law. Do these two groups mean to suggest that good old probable cause is no longer needed for a search? Are they now in the business of adopting “well-established” exceptions that courts have yet to find?
What happened to Steve Bierfeldt was clearly a violation of his 4th Amendment rights, having no bearing on the TSAs function, no justification in law of any sort and basically just an excess of chest-puffery by former Dairy Queen servers with badges who were under the mistaken belief that they could manufacture a reason to search a citizen from whatever struck their fancy. He should sue, and he should win.
But please, ACLU and libertarians, don’t go around giving away 4th Amendment rights in the process. We have courts to do that.
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I could say that they were clearly trying to make their suit easier to swallow, that this might not have been the forum to challenge that particular theory.
Nah, I’m with you. I’d really rather that this alliance of the rEVOLution and the ACLU didn’t agree that the airport was a Constitution free zone.
“We have courts to do that.”
So true. This is one of those insightful comments in the “you can either laugh or cry” category.
“If I am not in the mood to search, I can turn around and walk to the train station.”
Not in the 9th Cir. See, U.S. v. Aukai, 497 F3d 955 (2007), where the appellant did try to turn around. He said he no longer wanted to take the flight. Too bad for him. Even though he never got past the screening area, the Ninth, in an en banc decision, using some extraordinary mental gymnastics, determined that Aukai was in a “secured area” and was not permitted to leave.
Aukai walked thru the magnometer without problem, but was referred to secondary screening. At secondary screening, Aukai told the TSA he no longer wanted to take the flight and was leaving — in fact he was too late to catch the flight. But he was not allowed to leave.
I am familiar with the airport. The screening area is close to the street and far from the boarding areas. In fact, you have to go thru an additional, separate screening deeper into the airport before you can even get near the boarding areas.
We live in fun times.
I once heard a folk musician express his concern about trying to go through airport screening carrying his musical instrument.
He pondered what might happen when the screener would ask what was in the case and the musician would have to reply, “it’s a bouzouki.”