Yahoo: Jesse Ventura sues TSA

[Teller]

I think this is a case that needs to be heard. And I'm not in the least offended, nor overly-concerned if a former governor and Navy SEAL wants to bring it.

[Hunter44]

A person has a right not to be molested regardless what privilege they choose to do

So when a police officer pats you down he's molesting you?? Is that your point? lol

You'd be cool with letting a shoe or underwear bomber on a plane because a pat down is the same thing as being molested?? Wow.......not much else to say to that.

[Predicto]

Jesse is a lunatic and ridiculously wrong on a million issues, and I am sure he will lose this case - but I think that it is not a bad thing that he is calling attention to the excesses of the TSA. What they are doing isn't unconstitutional, but it is bad public policy. It overstates the true risks and invades our privacy for a very limited return, safety-wise. The procedures should be scruitinized much more carefully and kept as limited as possible.

But Jesse is still going to lose this case, and he is still going to be wrong about almost everything else he says.

[mojobo]

So, we shouldn't search people at our borders? Or when they want to visit a government building, e.g., the FBI, CIA, Pentagon, etc.?

We should search people at our borders if we have probable cause that they have committed a criminal offense. If the fbi, cia, or pentagon want to search people that enter their buildings then they have a right to do so just as the airlines have a right to perform security checks they feel are necessary on their poperty.

[Madison Redskin]

We should search people at our borders if we have probable cause that they have committed a criminal offense. If the fbi, cia, or pentagon want to search people that enter their buildings then they have a right to do so just as the airlines have a right to perform security checks they feel are necessary on their poperty.

If our federal government adopted this policy, you'd see drugs and illegal immigrants flooding into the country at record rates. It's also novel, as our government has always searched people that enter the country.

Also, many airports are owned by government entities. So, why shouldn't government authorities be allowed to search you when you enter their buildings?

[AsburySkinsFan]

But you should always have the expectation of reasonable searches and just cause for such searches.

Here's the problem with that thinking when it comes to airport security. You are already submitting to a search when you go through the metal detector, and when you send your carry-on luggage through the x-ray machine. What you're objecting to is not a search but the level of the search, that's a wholly different matter and one not so easily dismissed by claiming 4th Amendment rights, because by going to through the security in the first place you have already acknowledged the government's ability to search you without a warrant.

[Tulane Skins Fan]

I'm surpised so many people think the government should not be able to search people who travel on planes. I don't know, I can think of a few good reasons why those searches should exist.

Its not an easy question, but I'm pretty sure there's case law out there that when you travel through an airport you waive some of your fourth amendment rights, and specifically agree to pat downs and x-rays.

Its an interesting case. I don't know the answer. But it really bugs me when people act like these questions are so easy, and people fail to see that there are competing, but legitimate, interests on both sides.

[DCBnG21]

In other breaking news, Jesse Ventura sues the United States public for not giving him enough attention.

[elkabong82]

Here's the problem with that thinking when it comes to airport security. You are already submitting to a search when you go through the metal detector, and when you send your carry-on luggage through the x-ray machine. What you're objecting to is not a search but the level of the search, that's a wholly different matter and one not so easily dismissed by claiming 4th Amendment rights, because by going to through the security in the first place you have already acknowledged the government's ability to search you without a warrant.

Yes, I am saying it is the level that it goes to which is the problem. The amount of cause should warrant the level of search. It is supposed to protect against unreasonable searches and seizures. Going through a metal detector is reasonable search with airport security. However, consenting to a reasonable amount of search doesn't warrant further search which is unreasonable.

Just because you consent to a mild form of warrntless search doesn't mean security then has free reign.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Nowhere in there does it suggest that a consent to a reasonable search invalidates the amendment. You should be able to consent to reasonable searches and still retain the right against those searches becoming unreasonable.

[War Paint]

Good article

The TSA is invasive, annoying - and unconstitutional

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR2010112604290.html

[elkabong82]

Good article

The TSA is invasive, annoying - and unconstitutional

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR2010112604290.html

I agree with them that scanners which only seek out potential wens and explosives and don't record or transmit the info, like the ones they use in the Netherlands which also don't have the radiation concerns the USA ones do, then that is basically like an improved metal detector and is able to stay minimally invasive.

The current "full" pat-downs and naked body scans which can record that info and have radiation concerns, are very invasive.

[Madison Redskin]

Good article

The TSA is invasive, annoying - and unconstitutional

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR2010112604290.html

I'll grant you that the TSA is annoying and invasive. However, on what grounds is the TSA unconstitutional?

[Larry]

Loving all of the people who believe (with, apparently, the fervor that can only come from blind, unsupported, religious faith) that whenever a person does any action that is not mentioned in the Constitution, then the Constitution ceases to exist.

No, you do not have "a Constitutional right to fly on an airplane".

You have a Constitutional right not to be searched without a warrant, based on probable cause, based on sworn testimony. And "he wanted to get on an airplane" isn't probable cause. (Neither is "he had metal on him.")

The wrestling freak is right. The Constitution says "no searches".

Now, that said. Anybody here really want to do away with all airport searches of any kind? Anybody? No metal detectors. No bags through the x-ray.

What? You mean the only people who support something like that are loony Libertarians like me? And here I thought I was in the mainstream on this.

----------

On a (only slightly) more serious way of looking at things:

Suppose that Larry's interpretation of the Constitution stands. No airport searches.

Suppose that some airline decided that it's going to search the passengers. "Fly Southwest. We search our passengers." Obviously, no Constitutional issue, there. Every person who buys a ticket on Southwest, consented to being searched. They knew it was going to happen when they paid for the ticket.

IMO, the reason airport screeners aren't airline employees is because the airlines want the passengers to be pissed at the government, instead of at the airline. The airlines

want

the searches. They just don't want it done by people wearing the airline's uniform. After all,

nobody

has a better interest in keeping airline travel as safe as possible, than the airlines.

By that same reasoning, everybody who buys an ticket on any airline, knows they're going to be searched.

I don't like the fact that the government's doing it. It's clearly unconstitutional. But I also firmly believe that if the government stopped doing it tomorrow, the searches would still continue anyway. They'd just be done by different people.

[Madison Redskin]

Loving all of the people who believe (with, apparently, the fervor that can only come from blind, unsupported, religious faith) that whenever a person does any action that is not mentioned in the Constitution, then the Constitution ceases to exist.

No, you do not have "a Constitutional right to fly on an airplane".

You have a Constitutional right not to be searched without a warrant, based on probable cause, based on sworn testimony. And "he wanted to get on an airplane" isn't probable cause.

The wrestling freak is right. The Constitution says "no searches".

I don't like the fact that the government's doing it. It's clearly unconstitutional. But I also firmly believe that if the government stopped doing it tomorrow, the searches would still continue anyway. They'd just be done by different people.

According to several federal court decisions, neither the 4th Amendment, nor any other provision of the U.S. Constitution, prohibits the U.S. federal government from subjecting everyone who desires to travel on commercial airplanes to warrantless searches of their persons and possessions.

That's not to say these particular searches are unquestionably Constitutional. That's to say that your understanding of the 4th Amendment and it's application to airport screening procedures flies in the face of established caselaw.

[Larry]

According to several federal court decisions, neither the 4th Amendment, nor any other provision of the U.S. Constitution, prohibits the U.S. federal government from subjecting everyone who desires to travel on commercial airplanes to warrantless searches of their persons and possessions.

Really? I didn't know that.

The 4th Amendment prohibits all governments from all searches. It contains no exceptions whatsoever for "unless said citizen is performing an action which we forgot to list, in advance".

Those decisions are wrong. Every single one of them.

----------

And, to respond to the next false reasoning thrown up, yes, I'm quite aware that the 4th contains the word "unreasonable".

Anybody really want to claim that the Framers included the word "unreasonable", because they intended to pass a Constitutional Amendment which stated that it could be ignored any time Congress wants to, via a simple majority vote? A Constitutional Amendment which did not restrict the government in any way, because anything that the government decided to do was "reasonable", and therefore exempt from this Amendment?

[Madison Redskin]

The 4th Amendment prohibits all governments from all searches.

Wrong. It prohibits "unreasonable" searches and seizures. The Founding Fathers did not take a cavalier attitude in drafting the Constitution. Acknowledging that fact, and the basic principle of legislative interpretation that legislation should be construed in a manner so as to give every word and provision effect, why do you think it is they included the word "unreasonable" in the text of the 4th Amendment? Had they wanted to prohibit all searches and seizures by government authorities (save those authorized by warrants or based on probable cause), they could have omitted the word "unreasonable."

They inserted that qualification for a reason. If I recall the old cases I read in law school correctly (and perhaps I don't), they inserted that text because they believed that, in certain circumstances, government authorities should have the right to search and seize without a warrant or probable cause. That is why various courts have created exceptions to the general prohibition against government searches and seizures (absent a warrant or probable cause), e.g.:

*The government can search and seize people and their possessions upon their entry into this country, even without a warrant or probable cause.

*The government can fly helicopters and aircraft over private property and visually search such property, even without a warrant or probable cause.

*The government can set up roadblocks and ask people to blow into a breathalyzer, even without a warrant or probable cause.

*The government can search people in airports, even without a warrant or probable cause.

Now, all those searches and seizures have to be conducted in a "reasonable" manner. However, they are not "unreasonable" simply by virtue of the fact that they are conducted without a warrant or probable cause.

Anybody really want to claim that the Framers included the word "unreasonable", because they intended to pass a Constitutional Amendment which stated that it could be ignored any time Congress wants to, via a simple majority vote? A Constitutional Amendment which did not restrict the government in any way, because anything that the government decided to do was "reasonable", and therefore exempt from this Amendment?

I never said or implied that Congress can effectively immunize government searches from judicial review by passing laws that declare such searches "reasonable." Congress can pass laws authorizing warrantless searches and seizures and, if they are "unreasonable," people have the right to petition the courts to have such legislation overturned on the basis that they violate the 4th Amendment.

I only cited the fact that the 4th Amendment refers to "unreasonable" searches and seizures to rebut your assertion that the text of the 4th Amendment prohibits all searches and seizures (save those authorized by a warrant or based on probable cause).

So, let me repeat the question. Why do you think the Founding Fathers included the word "unreasonable" in the 4th Amendment?

Finally, do you think the Founding Fathers intended that U.S. customs officials obtain a warrant prior to searching a vessel entering a U.S. port?

[AsburySkinsFan]

Yes, I am saying it is the level that it goes to which is the problem. The amount of cause should warrant the level of search. It is supposed to protect against unreasonable searches and seizures. Going through a metal detector is reasonable search with airport security. However, consenting to a reasonable amount of search doesn't warrant further search which is unreasonable.

Just because you consent to a mild form of warrntless search doesn't mean security then has free reign.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Nowhere in there does it suggest that a consent to a reasonable search invalidates the amendment. You should be able to consent to reasonable searches and still retain the right against those searches becoming unreasonable.

And the reasonable-ness will be determined by SCOTUS not us.

[elkabong82]

And the reasonable-ness will be determined by SCOTUS not us.

Yes sir. And hopefully since it's been almost a decade since 9/11, those tragic events won't influence them to side with the overboard/invasive security/search methods whenever such a case is brought to them (will happen sooner than later IMO)

[mojobo]

If our federal government adopted this policy, you'd see drugs and illegal immigrants flooding into the country at record rates. It's also novel, as our government has always searched people that enter the country.

Also, many airports are owned by government entities. So, why shouldn't government authorities be allowed to search you when you enter their buildings?

I doubt we'd see significantly more illegal immigration and drugs coming into the country and the best way to deal with those problems isn't hiring more big brothers to watch over peoples actions but thats another debate.

The fact that airports are publicly owned still doesn't give governments the right to search just as it doesn't give them the right to search if you were at a public park. The government owns that park, but the fact that it is publicly owned doesn't give it the right to search people who wish to use the park.

[Larry]

Finally, do you think the Founding Fathers intended that U.S. customs officials obtain a warrant prior to searching a vessel entering a U.S. port?

Actually, I agree with what I understand of the case law in that case.

That people crossing national borders have always been subject to search by national authority, for lots of reasons.

But that's a case of an already-existing exception being "grandfathered in", based on long-standing precedent. Not a case of a brand-new exception being invented.

---------- Post added January-27th-2011 at 08:57 AM ----------

A bit of a counter-argument, to the folks arguing that metal detectors are constitutional, but that body scanners aren't.

The reason why the government has the authority to check for pistols, knives, and box cutters, but not for crotch bombers, is . . . ?

After all, neither possession of car keys, nor possession of a crotch, establishes probable cause.

[Special K]

I'd be very happy if everyone whining about the constitutionality of TSA searches would just stop flying. It'd make life much easier for the rest of us travelers.

As per the topic, I think there is significant precedent for these searches and they will hold up when challenged in court. My problem with TSA is that I don't think the security measures they have implemented will effectively weed out security threats.

[Kosher Ham]

Eh...TSA does their job when they want to.

That is the problem. They simply are not typically very good or consistent.

[Prosperity]

all warrant less searches are presumed unreasonable w/ a few exceptions, airports are probably one... and not to nit pick but flying over someone's property and looking down is not a search, that's just observation

course it seems like the Fed courts haven't given a **** about 4th amendment rights for about a decade, I doubt that'll change. So it'll probably remain "Constitutional" for a long time.

The problem w/ these "Searches" though isn't really that they are searches or that they violate privacy. The problem is that they don't prevent anything, they're just a show to make people think we have everything under control. I guess the show itself might scare away a few who would attempt something but I doubt it.

[DRSmith]

Does anyone ever stop to think that the constitution was written under the influence of the times they were living in and that we live in far different times and that things have to be looked at in light of the times we live in?

I mean do you think if people were walking in and shooting up places of work, malls and schools they may have written the 2nd ammedment a bit different or if people were strapping bombs to themselves and walking in confined areas there may have been a differing views on reasonable search?

We already have the thread about health insurance and the government mandating it during the time the founders were alive, there was the whiskey tax enacted involvement in foriegn wars maybe we should look at the actual actions they took and the world events at the time to understand things a bit better.

Getting searched when I enter the country or at the airport and having my phone conversations watched for terror threats to me is not the same as the police busting into my houae and looking to see if maybe I have something illegal

[Madison Redskin]

Actually, I agree with what I understand of the case law in that case.

That people crossing national borders have always been subject to search by national authority, for lots of reasons.

But that's a case of an already-existing exception being "grandfathered in", based on long-standing precedent. Not a case of a brand-new exception being invented.

True. The Founding Fathers did not expressly provide that government officials could subject people who wish to travel on airplanes to X-rays, pat-downs, body scans, etc. However, I think the plain language of the 4th Amendment strongly suggests that the Founding Fathers intended that they engage in such warrantless searches and seizures under certain circumstances and in a reasonable manner (which are all subject to judicial review).

Personally, I do not mind being subjected to a body scan when I try to board an airplane. I do not think it is a big inconvenience or source of embarrassment, and so I am willing to deal with it even if it only reduces the risk of a terrorist attack ever so slightly.

Unfortunately, however, the courts will not base the reasonableness of such scans on my personal opinion. The courts will have to decide whether the TSA’s body scanning protocols are reasonable in light of various factors, e.g., the degree to which a reasonable person should expect privacy during the pre-boarding screening process, the threat posed by terrorists seeking to hijack or destroy airplanes, whether there are less-invasive and equally effective alternatives to body scans, etc.