Tobey v. Napolitano et al

Filing 42

REPLY to Response to Motion re 32 MOTION to Dismiss filed by Terri Jones, Janet Napolitano, John S. Pistole, Rebecca Smith. (Attachments: # 1 Exhibit)(Meier, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,

)
)
Plaintiff,
)
)
v.
)
)
JANET NAPOLITANO, et al.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 3:11cv154-HEH

FEDERAL DEFENDANTS’ REPLY
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Despite plaintiff’s attempts to re-construe the facts alleged in his Amended Complaint, he
has not come forward with a sufficient basis to thwart a dismissal of his claims against the
federal defendants on sovereign and qualified immunity grounds. Plaintiff has not established a
basis for relief against the federal defendants under 42 U.S.C. § 1983. Nor, with respect to the
individual capacity federal defendants, has plaintiff demonstrated that plaintiff’s First Amended
Complaint should not be dismissed under the doctrine of qualified immunity. Even accepting all
the factual allegations as true, including the salient fact that plaintiff failed to follow the
direction of the Transportation Security Officer at the security screening checkpoint to proceed
through the Advanced Imaging Technology (AIT) scanner, the individual capacity defendants
did not violate any right secured by the First, Fourth, or Fifth Amendments of the Constitution.
In addition, even if this Court were to hold that the individual capacity defendants violated
plaintiff's constitutional rights, they are entitled to qualified immunity because at the time they
acted it was not clearly established that their actions were improper. Thus, plaintiff’s claims
should be dismissed with prejudice.

1.

Plaintiff Has Not Established Claims Against the Federal Defendants Under 42
U.S.C. § 1983

Plaintiff asserts he has alleged a claim against the federal defendants under 42 U.S.C. §
1983 because the federal defendants acted “jointly” with the Capital Region Airport Commission
officials. Pl.’s Opp. Memo at 8. To bolster this claim, plaintiff points to the fact that the federal
and Commission defendants have entered into agreements to “act collaboratively” to ensure
safety and security at the Richmond International Airport. Id. at 10. Further, plaintiff states that
the federal defendants “acted hand in glove” with Commission officials when Supervisory
Transportation Security Office (STSO) Jones called the Richmond International Airport Police
(RIC Police), who held plaintiff until a Federal Air Marshal questioned him. Id. at 10-11.
Notwithstanding plaintiff’s rhetoric, the allegations set forth in the Amended Complaint
do not rise to the level necessary to demonstrate that the federal defendants acted under color of
state law and, thus, plaintiff has not made out a claim against these officials under 42 U.S.C. §
1983. Indeed, even plaintiff acknowledges, as he must, that federal officials “act under color of
state law where they act in joint cooperation and coordination with state officials to deprive an
individual of his or her constitutional rights.” Pl.’s Opp. Memo at 9. In contrast to the
circumstances here, the cases on which plaintiff relies for this proposition involved longstanding
and comprehensive relationships between federal and state officials relating to a particular issue,
investigation, or other matter. See, e.g., Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979)
(federal defendants played a substantive role over a significant period of time in planning raid
carried out by state officials), rev’d on other grounds, 446 U.S. 754 (1980); Kletschka v. Driver,
411 F.2d 436 (2d Cir. 1969) (court found that, in longstanding relationship between federal and
state officials, state officials were in the position to, and did, exert strong influence on federal
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officials).
Rather than alleging facts showing that the federal defendants were in close and near
constant contact with the RIC Police and Commission officials, plaintiff’s Amended Complaint
discusses the existence of protocols and procedures relating to the maintenance of security at the
Richmond International Airport. Am. Compl. ¶¶ 17-24. The mere fact that these policies exist is
not sufficient, however, to make out a claim against the federal defendants under 42 U.S.C. §
1983. At most, plaintiff’s Amended Complaint alleges that the federal and state officials worked
together toward a common goal, i.e., ensuring the security of the Richmond International Airport
and the people who either work there or who are traveling as passengers on commercial airlines.
Nothing in the Amended Complaint indicates that in striving to reach this goal, the federal
defendants acted under anything but federal policies, rules, and regulations. Further, plaintiff
has not alleged in his Amended Complaint any facts that establish actual communications
relating to plaintiff between the state and federal officials. Instead, plaintiff alleges that the
STSO called the RIC Police, Am. Compl. ¶ 33, and that the RIC Police detained plaintiff until
after a Federal Air Marshal questioned him, id. ¶ 63. These facts do not amount to the level of
involvement or cooperation between the state and federal officials that courts have required in
order to find that a claim lies against federal officials under section 1983. See Strickland v.
Shalala, 123 F.3d 863, 866 (6th Cir. 1997). Therefore, plaintiff claims against the federal
defendants under 42 U.S.C. § 1983 should be dismissed.

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2.

The Individual Capacity Defendants Are Entitled to Qualified Immunity and,
Thus, Plaintiff’s Constitutional Tort (Bivens) Claims Against Them Should Be
Dismissed

A court evaluating a claim of qualified immunity must first determine whether the
plaintiff has alleged the deprivation of an actual constitutional right at all. Siegert v. Gilley, 500
U.S. 226, 231 (1991); Jean v. Collins, 221 F.3d 656, 658 (4th Cir. 2000) (citation omitted).
Accord Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011); Saucier v. Katz, 533 U.S. 194, 201
(2001). Second, if such a violation exists, the court must decide whether that right was "clearly
established" at the time the officer acted, such that "it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202; see
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
In his opposition, plaintiff disputes the federal defendants’ characterization of the facts
set forth in his Amended Complaint. Yet, as much as plaintiff attempts to obfuscate the facts as
alleged, the inescapable conclusion based on the Amended Complaint logically leads to the
conclusion that the individual capacity defendants did not violate a known constitutional right of
plaintiff and, even if the Court were to determine otherwise, they did not act in such a manner
that a reasonable officer would understand that his conduct was unlawful under the
circumstances presented in this case.
Under the facts alleged, plaintiff was traveling from the Richmond International Airport
at one of the traditionally busiest times of the year for travel by commercial airlines – during the
holiday season, between Christmas and New Year’s -- on December 30, 2010. Am. Compl. ¶ 25.
After being cleared by the pre-screening agent, plaintiff proceeded to the conveyor belt in the
checkpoint security screening area and placed his personal items on the belt. Id. ¶¶ 28-29.

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Plaintiff then reached the passenger screening location, where TSO Smith “directed Plaintiff
away from the magnetometer . . . and toward an AIT unit.” Id. ¶ 30.1 Instead of entering the
AIT unit, plaintiff removed his T-shirt and sweat pants, placed them on the conveyor belt, and
stood in athletic running shorts, revealing the Fourth Amendment-related message to TSA
screening agents and other persons present in the checkpoint screening area. Id. ¶¶ 30-31.
Plaintiff alleges that TSO Smith informed him that removal of his clothing was unnecessary, but
plaintiff responded that he wished to so do to express his view that the enhanced screening
procedures, including AIT, are not constitutional. Id. ¶ 32. Plaintiff claims that defendant
Smith then radioed for assistance and that either defendant Jones or another STSO directed
plaintiff to stay where he was in front of the AIT unit, “whereupon Defendant Jones sought
intervention” by the RIC Police. Id. ¶ 33. Plaintiff alleges that, “shortly thereafter, the RIC
Police officers seized him, collected his belongings, and took him to the police station where he
was questioned; eventually plaintiff was cleared and permitted to board a flight.” Id. ¶¶ 55-64.

Based on these factual allegations, TSO Smith directed plaintiff to proceed through the
AIT machine and plaintiff did not follow this direction. Instead, plaintiff went from the AIT
back to the conveyor belt and removed articles of his clothing to reveal the Fourth Amendment

1

Plaintiff claims that the magnetometer, or metal detector, constitutes TSA’s “primary
screening apparatus,” Am. Compl. ¶ 30, and that the Advanced Imaging Technology (AIT) Unit
amounts to “secondary screening.” Id. ¶ 16. Contrary to plaintiff’s allegations, TSA uses AIT,
together with the magnetometer, as a primary security screening tool. See EPIC v. Napolitano,
Slip Op. At 3 (D.C. Cir. July 15, 2011) (attached as Exh. 1). In fact, it was the adoption of the
procedures which, in part, implemented the widespread use of AIT as a primary screening
method that engendered protests such as plaintiff’s and others. See Pl.’s Opp. Memo at 23
(citing articles).
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written on his chest. Thus, it was only after plaintiff failed to follow the TSO’s direction to
proceed through the AIT during one of the busiest travel seasons when protests of TSA’s new
procedures were at their height that the STSO called the RIC Police. Even accepting as true that
plaintiff was “quiet, composed [and] polite,” Am. Compl. ¶ 65, plaintiff’s actions do not merely
constitute a “peaceful protest,” Pl.s Opp. Memo at 6, but rather amount to a deliberate act by
plaintiff not to follow TSO Smith’s direction. Am. Compl. ¶¶ 30-31.
1.

Fourth Amendment

The facts of this case present a novel question of the extent to which the Fourth
Amendment requires probable cause to detain an individual who enters a security screening
checkpoint prior to boarding a commercial airline, but who then fails to follow the direction of
the screening TSO.2 Most of the cases addressing issues relating to the Fourth Amendment in
this context, after the events of September 11, 2001, have focused primarily on the search of
individuals rather than their seizure or detention. See, e.g., United States v. Aukai, 497 F.3d 955
(9th Cir. 2007) (en banc); United States v. Hartwell, 436 F.3d 174 (3d Cir. 2006); Gilmore v.
Gonzales, 435 F.2d 1125 (9th Cir. 2006). For this reason, there is no clearly established
constitutional right with respect to the Fourth Amendment claim that plaintiff raises here.
Moreover, when applying by analogy the principles of the cases that have addressed the
appropriate scope of a search under the Fourth Amendment in the airport screening context, it is
clear that the Amended Complaint does not properly plead a constitutional violation.
Contrary to plaintiff’s characterizations, the federal defendants do not “rely almost

2

Plaintiff did not cite to any cases that have addressed this specific issue in his
opposition memorandum, and the federal defendants’ counsel likewise has been unable to locate
prior cases where courts have reached this issue.
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exclusively” on the decision in Aukai, 497 F.3d 955, for the proposition that the individual
capacity defendants did not violate a clearly established Fourth Amendment right of plaintiff.
Pl.’s Opp. Memo at 13. The federal defendants cited to several cases which acknowledge that,
because the government has a compelling interest in preventing terrorist attacks on airplanes,
there is no probable cause requirement to search passengers who opt to proceed through the
security screening checkpoint. Fed. Defs.’ Memo at 12-13. A passenger who enters the security
checkpoint screening process is on notice that he will be searched and, once his belongings are
placed on the conveyor belt, he cannot withdraw. United States v. Herzbrun, 723 F.2d 773, 776
(11th Cir. 1984); United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1973); Hartwell, 436 F.3d
174, 178-79 (3d Cir. 2006); Aukai, 497 F.3d at 961; Singleton v. Comm’r of Internal Revenue,
606 F.2d 50, 52 (3d Cir. 1979). See also 49 C.F.R. § 1540.107(a) (no individual may board an
aircraft without complying with security checkpoint procedures).
The Fourth Amendment is not violated where passengers are not permitted to disengage
from an administrative search. Aukai, 497 F.3d at 961 ("The constitutionality of an airport
screening search, however, does not depend on consent . . . requiring that a potential passenger
be allowed to revoke consent to an ongoing airport security search makes little sense in a
post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate
airport security by 'electing not to fly' on the cusp of detection until a vulnerable portal is
found."); see also Hartwell, 436 F.3d at 181 n.12 ("Hartwell argues that once the TSA agents
identified the object in his pocket and he refused to reveal it, he should have had the right to
leave rather than empty his pockets. We reject this theory."); Torbet v. United Airlines, 298 F.3d
1087, 1090 (9th Cir. 2002) (after entering a security checkpoint screening and, thus, consenting

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to a search, “the Fourth Amendment does not require that passengers be given a safe exit once
detection is threatened.”).
Plaintiff attempts to distinguish Aukai based on his gloss on the facts alleged in the
Amended Complaint, which he claims do not demonstrate that plaintiff failed to cooperate with
the TSO after entering the checkpoint security screening process. As discussed above, the
Amended Complaint contains allegations indicating that plaintiff did not follow the TSO’s
direction to proceed through the AIT and, thus, plaintiff’s basis for distinguishing Aukai is
unfounded.
Moreover, plaintiff relies on the fact that no TSA official undertook “to determine
whether plaintiff was a security risk.” Pl.’s Opp. Memo at 15. Suspicionless checkpoint
searches are permissible under the Fourth Amendment when a court finds a reasonable balance
between "the gravity of the public concerns served by the [search], the degree to which the
[search] advances the public interest, and the severity of the interference with individual liberty."
Illinois v. Lidster, 540 U.S. 419, 427 (2004). See also Von Raab, 489 U.S. at 674 (quoting
United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) ("When the risk is the jeopardy to
hundreds of human lives . . . inherent in the . . . blowing up of a large airplane, the danger alone
meets the test of reasonableness, so long as the search is conducted in good faith for the purpose
of preventing . . . damage and with reasonable scope and the passenger has been given advance
notice of his liability to such a search so that he can avoid it by choosing not to travel by air."));
United States v. Rendon, 607 F.3d 982, 989 (4th Cir. 2010) (recognizing special needs exception
to Fourth Amendment's warrant requirement).
Preventing terrorist attacks and maintaining the safety of the more than 700 million

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passengers annually is of paramount importance. See Aukai, 497 F.3d at 958-59; Hartwell, 436
F.3d at 178. Airport checkpoints advance the public interest inasmuch as "absent a search, there
is no effective means of detecting which airline passengers are reasonably likely to hijack an
airplane." Singleton, 606 F.2d at 52. "It is hard to overestimate the need to search air travelers
for weapons and explosives before they are allowed to board the aircraft. As illustrated over the
last three decades, the potential damage and destructions for air terrorism is horrifically
enormous." United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005). Thus, despite
plaintiff’s self-serving claim that he did not pose a security risk, "as yet there is no foolproof
method of confining the search to the few who are potential hijackers." Marquez, 410 F.3d at
616.
Under the circumstances described in plaintiff’s Amended Complaint, it is apparent that
the TSOs who manned the security screening checkpoint on December 30, 2010 did not violate
an established Fourth Amendment right of plaintiff. Even if the Court were to determine
otherwise, it is clear that these officials did not violate a “clearly established” right of plaintiff
such that “it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.” Saucier, 533 U.S. at 202. Accord Al Kidd, 131 S. Ct. at 2085. TSOs are the
officials on the front lines of the federal government’s efforts to prevent terrorism and maintain
the security of commercial airlines. To assist them in carrying out this function of “paramount”
importance, TSA has layers of policies, rules, and regulations relating to the importance of
security screening checkpoint for air passengers.3 Here, the individual capacity defendants were

3

Plaintiff’s Amended Complaint cites to just one of these policies, TSA MD 100.4. But
in addition to the MD, there are regulations, see, e,g, 49 C.F.R. §§ 1503.401 (allowing TSA to
assess civil penalties for such interference); 1540.105(a)(2) (prohibiting individuals from
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confronted by an individual who engaged in unpredictable behavior and who did not follow a
direction to proceed through the AIT scanner at a time of year when passenger volume is at its
highest. “Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions. When properly applied, it protects all but the
plainly incompetent or those who knowingly violate the law.” Al Kidd, 131 S. Ct. at 1085.
When considered in the totality of the circumstance, the TSOs acted reasonably in detaining
plaintiff until the RIC Police arrived and they are entitled to qualified immunity.
2.

First Amendment

Plaintiff claims that the individual capacity federal defendants violated his First
Amendment right to free speech because their conduct resulted in plaintiff’s arrest by the
Commission defendants.4 Pl.’s Opp. Memo at 17. Plaintiff relies primarily on two facts that are
not supported by the allegations in his Amended Complaint: (1) that it was the message plaintiff
conveyed that caused the TSOs to call the RIC Police; and (2) that plaintiff did not interfere with
the checkpoint screening process. Id. at 19. Neither of these facts is supported by a fair reading
of plaintiff’s Amended Complaint. Instead, the Amended Complaint demonstrates that the TSOs

entering a secured or sterile airport area "without complying with the systems, measures, or
procedures being applied to control access to, or presence or movement in, such areas.");
1540.107(a) ("No individual may . . . board an aircraft without submitting to the screening and
inspection of his or her person . . . in accordance with the procedures being applied to control
access to that area or aircraft . . . ."); see also 49 U.S.C. §§ 44901-44903, as well as Standard
Operating Procedures and other TSA guidelines. Redfern v. Napolitano, No. 1:10cv12048, 2011
WL 1750445 (D. Mass. May 9, 2011); Durso v. Napolitano, No. 1:10cv02066, 2011 WL
2634183 (D.D.C. July 5, 2011)
4

As discussed supra at 2-3, plaintiff has not established that the federal and Commission
defendants were acting “in concert” during the events of December 30, 2010, nor has plaintiff
sufficiently alleged a “conspiracy” between the federal and Commission defendants. Ostrer v.
Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969).
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took the actions at issue because of plaintiff’s failure to follow TSO Smith’s direction to proceed
through the AIT, and not because of the message plaintiff had written on his chest.5 Further,
under the circumstances in the Richmond International Airport on December 30, 2010, as
discussed above at 4, 5 n.1, it was not unreasonable for the individual capacity federal
defendants to equate plaintiff’s failure to follow TSO Smith’s direction with an interference with
screening personnel.
As set forth in 49 C.F.R. § 1540.109, "[n]o person may interfere with, assault, threaten,
or intimidate screening personnel in the performance of their screening duties under this
subchapter." As the court noted in Rendon v. Transportation Security Administration, 424 F.3d
475 (6th Cir. 2005), “this regulation serves a substantial government interest, as its purpose is to
prevent individuals from interfering with screeners in the performance of their duties, which are
to both ensure that those screened are not potentially carrying weapons and to conduct the
screening of passengers as efficiently as possible.” Id. at 479. Further, TSA’s checkpoint
screening policies are applied to all members of the air traveling public who wish to fly via
commercial airlines. 49 U.S.C. §§ 44901-44903; 49 C.F.R. §§ 1540.105(a)(2); 1540.107(a).
Compare Roberts v. United States Jaycees, 468 U.S. 609, 622-23 (1984). The requirement
simply obligates a person who wants to travel on an airplane to consent to the checkpoint
screening requirements, which has nothing whatsoever to do with freedom of expression or
petitioning the Government. See, e.g., Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986)
Inasmuch as the prevention of interference with screeners and the checkpoint security screening

5

For this reason, the cases plaintiff cites for the proposition that content and viewpoint
First Amendment claims are valid are inapposite here. Pl.’s Opp. Memo at 17-18.
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process serves a valid governmental interest to prevent acts of terrorism on commercial airlines,
plaintiff has not established a claim that his First Amendment rights have been violated.
3.

Fifth Amendment

Plaintiff argues that he has made out an equal protection claim under the Fifth
Amendment because he was treated differently from other passengers in other airports on
different days who protested TSA’s screening policies in a similar fashion, i.e., by removing
articles of clothing. Pl.’s Opp. Memo at 22-23. As the Supreme Court has observed many
times,"[t]he Equal Protection Clause directs that 'all persons similarly circumstanced shall be
treated alike."' Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F. S. Royster Guano Co. v.
Virginia, 253 U.S. 412, 415 (1920)). And, in fact, "[t]he Constitution does not require things
which are different in fact or opinion to be treated in law as though they were the same." Tigner
v. Texas, 310 U.S. 141, 147 (1940). Obviously, plaintiff has not made a cognizable equal
protection claim as he has not proffered any facts demonstrating that TSA TSOs treated other
passengers in the Richmond International Airport on December 30, 2010, who also engaged in a
protest of TSA’s screening policies, in a disparate manner. Because plaintiff has not identified
any such similarly situated passengers, his claim must fail.
Further, as stated in TSA MD 100.4, “TSA’s layered security strategy includes an
overlapping system of screening and searches. No single security measure or method is
sufficiently reliable to be depended upon in isolation.” Fed. Defs.’ Memo Exh. A at 6. Thus, it is
apparent that there is no right or wrong way to handle a specific issue as it arises during the
security screening process. Accordingly, plaintiff has not established a clear violation of the
Fifth Amendment, nor that the individual capacity federal defendants acted unreasonable under

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the circumstances present here.6
WHEREFORE, the Federal defendants respectfully request that the Court dismiss
plaintiff’s Amended Complaint, with prejudice, as to the federal defendants and for such further
relief as the Court deems appropriate.
DATED this 18th day of July, 2011.
Respectfully submitted,

NEIL H. MACBRIDE
UNITED STATES ATTORNEY
By:

/s/
Robin P. Meier
Virginia State Bar #65825
Attorney for Defendant
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219
[phone] (phone)
[phone] (fax)
[e-mail]
TONY WEST
Assistant Attorney General
SANDRA M. SCHRAIBMAN
Assistant Branch Director
CARLOTTA P. WELLS
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch

6

Contrary to plaintiff’s assertion, Pl.’s Opp. Memo at 21, there is no constitutional right
to travel by a particular means. See Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54
(2d Cir. 2007) ("[T]ravelers do not have a constitutional right to the most convenient form of
travel"); Gilmore, 435 F.3d at 1136-37 (there is no right to air travel, even when that is the most
convenient means); City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982) (same).
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P.O. Box 883
Washington, D.C. 20044
[phone] (telephone)
Attorneys for Federal Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of July, 2011, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system, which will send a notification of such filing
(NEF) to the following:
Alan C Veronick
Anand Agneshwar

[e-mail]
[e-mail]

Belinda Duke Jones

[e-mail]

Henry Irving Willett , III
[e-mail]

[e-mail], [e-mail],

James Jeffrey Knicely [e-mail], [e-mail],
[e-mail], [e-mail]
Paul Wilbur Jacobs , II

[e-mail]

By:

/s/
Robin P. Meier
Virginia State Bar #65825
Attorney for Defendant
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219
[phone] (phone)
[phone] (fax)
[e-mail]