Tobey v. Napolitano et al

Filing 66

Memorandum in Support re 65 MOTION to Dismiss Second Amended Complaint filed by Jane Doe, Terri Jones, Janet Napolitano, John S. Pistole, Rebecca Smith. (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

MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
Plaintiff alleges that certain federal officials violated his First, Fourth, and Fifth
Amendment rights when he removed his clothing and displayed the text of the Fourth
Amendment on his chest upon entering the security screening checkpoint prior to boarding a
flight from Richmond International Airport. In filing a Second Amended Complaint that is,
except in a handful of instances, identical to his First Amended Complaint, plaintiff overlooks
the Court’s August 30, 2011 Memorandum Opinion and Order (docket #s 53, 54), which
dismissed all of the official capacity claims against the federal defendants and all of the claims
against the individual capacity defendants, except for plaintiff’s claim of a First Amendment
violation.
The federal defendants move for dismissal of the official and individual capacity claims
against “Jane Doe,”1 who plaintiff alleges was a supervisory employee of the Transportation
Security Administration (TSA) at the Richmond International Airport on December 30, 2010,

1

This memorandum uses the pseudonym “Jane Doe” in a manner consistent with
plaintiff’s Second Amended Complaint.

when plaintiff staged his protest of TSA’s passenger security procedures. Because the Court
already has dismissed identical official capacity claims as well as identical individual claims
under the Fourth and Fifth Amendments, to the extent any responses are required with respect to
such dismissed claims, the reasons supporting the federal defendants’ Motion to Dismiss the
First Amended Complaint and the Federal Defendants’ Answer are incorporated herein by
reference. This motion thus focuses on the only claim extant as a result of the Court’s August 30
Memorandum Opinion, which consists of a First Amendment individual capacity claim.
With respect to the First Amendment claim, plaintiff’s Second Amended Complaint does
not give rise to a plausible inference that Doe took any action as a result of the message plaintiff
had written on his chest. Even accepting all the factual allegations as true, Doe did not violate
any right secured by the Constitution and is entitled to qualified immunity. In addition, even if
this Court were to hold that Doe violated plaintiff's constitutional rights, she is entitled to
qualified immunity because at the time she acted it was not clearly established that her actions
were improper. Thus, plaintiff’s claims should be dismissed with prejudice.
BACKGROUND
The federal defendants herein incorporate the Background discussion from the
Memorandum in Support of the Motion to Dismiss Plaintiff’s First Amended Complaint (docket
# 33), except as follows:2
Plaintiff alleges that Doe was, on December 30, 2011, the “manager of the TSA security

2

The Second Amended Complaint references federal defendant Doe in paragraphs 9, 33,
35, 36, 37, 38, 99, 105, 111, 112, and 113, as well as in subparagraph B of the Prayer for Relief.
Except as noted in the text, the federal defendants’ response to the allegations in these
paragraphs on Doe’s behalf is the same as for the other federal defendants.
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checkpoint ‘B’” at the Richmond International Airport. Pl.’s 2d Am. Compl. ¶ 9. In addition,
after 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 claims
that defendant Smith then radioed for assistance and that either defendant “Terri Jones” (or
another Supervisory Transportation Security Officer) directed plaintiff to stay where he was in
front of the AIT unit, “whereupon Defendants Jones and Doe sought intervention” by the RIC
Police. Id. ¶ 33. Plaintiff further claims that Doe approached Richmond Airport Commission
police officers Vann and Mason “to inform them of the incident involving Plaintiff and request
that they take action against him.” Id. In addition, plaintiff alleges that, shortly after plaintiff
was “seized and handcuffed” by the Richmond Airport Commission police officers, Doe
“searched Plaintiff’s belongings at the security checkpoint, removing an unidentified item from
those belongings.” Id. ¶ 35.
There are several regulatory provisions that address the responsibilities of passengers and
other individuals and persons in the context of security screening. See 49 C.F.R. part 1540,
subpart B. Among those provisions are 49 C.F.R. § 1540.105, which addresses the security
responsibilities of employees and other persons, and 49 C.F.R. § 1540.109, which addresses
“interference that might distract or inhibit a screener from effectively performing his or her
duties” in order to emphasize “the importance to safety and security of protecting screeners from
undue distractions or attempts to intimidate.” 67 Fed. Reg. 8340, 8344 (Feb. 22, 2002)
(transferring FAA regulatory provisions regarding civil aviation security to TSA).

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ARGUMENT
I.

FEDERAL DEFENDANT DOE IS ENTITLED TO QUALIFIED IMMUNITY
BECAUSE PLAINTIFF’S SECOND AMENDED COMPLAINT DOES NOT SET
FORTH A PLAUSIBLE CLAIM UNDER THE FIRST AMENDMENT
Qualified immunity shields government officials from discovery and the other burdens

of litigation where a complaint fails adequately to allege that the defendant violated clearly
established law. See Mitchell v. Forsyth, 472 U.S. 511, 525-26 (1985); see also Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Siegert v. Gilley, 500 U.S. 226, 232 (1991). The threshold
question in every such case is whether the plaintiff’s complaint is legally sufficient to overcome
that immunity. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946-47 (2009). In Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and in Iqbal, 129 S. Ct. 1937, the Supreme Court explained how
Rule 8(a)(2) operates when assessing the legal sufficiency of a claim for relief. In Twombly, the
Court explained that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” 127 S. Ct. at 1964-65. Instead, the “[f]actual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id.
The Court in Iqbal explained that the “plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully”; instead, “[w]here a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement
to relief.’” 129 S. Ct. at 1949. Accordingly, ambiguous allegations of clearly illegal conduct are
insufficient under Iqbal. See id. The “dispositive inquiry . . . is whether it would be clear to a

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reasonable officer that his conduct was unlawful in the situation he confronted.” Brousseau v.
Haugen, 543 U.S. 194, 199 (2004). Thus, as Iqbal explained, “where the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged- but it has not ‘show[n]’ -‘that the pleader is entitled to relief.’” 129 S. Ct. at 1950
(quoting Fed. R. Civ. P. 8(a)(2)); see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250,255 (4th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556).
The decision in Iqbal, however, did not disturb the established rule that “[i]n evaluating a
Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the
complaint.” Nemet Chevrolet, 591 F.3d at 255 (citations omitted). Additionally, the plaintiff is
entitled to the benefit of all reasonable inferences to be drawn from the well-pled facts. See,
e.g., Giarratano v. Johnson, 521 F.3d 298, 305 (4th Cir. 2008).
In applying Iqbal, the court's first task is to “‘identif[y] the allegations’ of the . . .
complaint that are either extraneous or ‘not entitled to the assumption of truth.’” Giarratano,
521 F.3d at 305 (quoting Iqbal, 129 S. Ct. at 1951). In performing this function, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 129 S. Ct. at 1949. When “allegations [are] ‘conclusory’ restatements of the
‘elements of a constitutional discrimination claim,’ the Supreme Court [has] refused to accord
them an assumption of truth for purposes of weighing a motion to dismiss.” Nemet Chevrolet,
591 F.3d at 255 (quoting Iqbal, 129 S. Ct. at 1951). Courts “are not bound to accept as true a

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legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. Thus, as the
Fourth Circuit has explained, under Iqbal “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to constitute well-pled facts.” Nemet
Chevrolet, 591 F.3d at 255.
Further, “only a complaint that states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 129 S. Ct. at 1950. In making this inquiry, “the complaint’s factual allegations
must produce an inference of liability strong enough to nudge the plaintiffs claims ‘across the
line from conceivable to plausible.’” Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129 S.
Ct. at 1952). “‘[D]etailed factual allegations’” are not required, but the facts pled must “allow a
court, drawing on ‘judicial experience and common sense,’ to infer ‘more than the mere
possibility of misconduct.’” Id. (quoting Iqbal, 129 S. Ct. at 1949-50). If “[t]here is nothing but
[plaintiff’s] speculation” to support a critical fact, the pleading is not adequate. Id. at 259; see
Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (“[C]ourts may infer
from the factual allegations in the complaint ‘obvious alternative explanation[s],’ which suggest
lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer”).
Courts have been particularly skeptical of vague allegations that plead a nefarious motive
for actions where the more likely explanation is reasonable law enforcement conduct. As the
Supreme Court has explained, “[b]ecause an official's state of mind is ‘easy to allege and hard to
disprove,’ insubstantial claims that turn on improper intent may be less amenable to summary
disposition than other types of claims against government officials” and this “category of claims
therefore implicates obvious concerns with the social costs of subjecting public officials to
discovery and trial, as well as liability for damages.” Crawford-El v. Britton, 523 U.S. 574,

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584-585 (1998). Based on such concerns, the Sixth Circuit recently explained in a First
Amendment retaliation case that “vague and conclusory allegations of nefarious intent and
motivation by officials . . . are not well-pleaded, and are therefore insufficient to ‘plausibly
suggest an entitlement to relief.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,
377 (6th Cir. 2011); see Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (“The bald
allegation of impermissible motive . . . , standing alone, is conclusory and is therefore not
entitled to an assumption of truth.”). Thus, a complaint will be dismissed when, other than an
allegation of improper motive, “[n]othing in the alleged conduct of relevant federal law
enforcement officers plausibly suggests that they were motivated by anything other than a proper
law enforcement motive.” Ctr. for Bio-Ethical Reform, 572 F.3d at 378.
Similarly, the Fourth Circuit requires plaintiffs bringing claims that turn on a defendant’s
motivation to “plead specific facts in a nonconclusory fashion to survive a motion to dismiss.”
Gooden v. Howard County, 954 F. 2d 960, 969-70 (4th Cir. 1992) (en banc). The court
explained that given qualified immunity in this context, “the protection afforded officials by an
objective test would be illusory if the simple allegation of discriminatory animus sufficed to set
it aside.” Id.; see Hobson v. Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984) (“[I]n some instances,
plaintiffs might allege facts demonstrating that defendants have acted lawfully, append a claim
that they did so with an unconstitutional motive, and as a consequence usher defendants into
discovery, and perhaps trial, with no hope of success on the merits.”). Accordingly, as the
Supreme Court has explained, “[w]hen a plaintiff files a complaint against a public official
alleging a claim that requires proof of wrongful motive, the trial court must exercise its
discretion in a way that protects the substance of the qualified immunity defense” by, among

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other things, “insist[ing] that the plaintiff ‘put forward specific, nonconclusory factual
allegations’ that establish improper motive . . . in order to survive a prediscovery motion for
dismissal.” Crawford-El, 523 U.S. at 597-98.
Like this case, Iqbal dealt with a claim that required proof of discriminatory intent.
See 129 S. Ct. at 1948 (equating inquiry there with that in case alleging “discrimination in
contravention of the First . . . Amendment[]” where “the plaintiff must plead and prove that the
defendant acted with discriminatory purpose”). The Court explained that “to state a claim based
on a violation of a clearly established right, [plaintiff] must plead sufficient factual matter to
show that [the defendants] . . . implemented the . . . policies at issue not for a neutral,
investigative reason but for the purpose of discriminating on account of' the protected conduct or
quality.” 129 S. Ct. at 1948-49. In turn, when there is a “‘more likely explanation[] for the
government action that is legitimate . . . ,’” the Court concluded that “[the] factual allegations did
‘not plausibly establish’ the ‘purposeful, invidious discrimination’[plaintiff] asked [the court] to
infer.” Nemet Chevrolet, 591 F.3d at 254 (quoting Iqbal, 129 S. Ct. at 1951-52).
Plaintiff’s Second Amended Complaint fails under these standards because it does not
sufficiently allege that plaintiff’s viewpoint (or, for that matter, the content of his speech)
motivated TSA employee Doe (or, indeed, any of the TSA employees); instead, the Complaint is
fully consistent with the much more likely explanation – that plaintiff’s bizarre and disruptive
behavior led the agents to seek the assistance of local authorities. Cf. Aug. 30 Memo Op. at 3132 (noting plaintiff’s behavior was “bizarre” and justified the TSOs’ summoning of the airport
police to investigate, in particular given government’s heightened security interest at airport
security checkpoints). The Second Amended Complaint should therefore be dismissed under

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Iqbal. Indeed, plaintiff has not set forth any allegations that Doe acted as she did because of the
content of the speech written on plaintiff’s chest rather than his unusual behavior in removing his
clothing (and in particular his removal of his pants, which could be viewed by an observer as an
inappropriate action, and which went beyond his asserted interest in showing the message on his
chest). 2d Am. Compl. ¶¶ 33, 35.3 If anything, the Second Amended Complaint attributes the
additional scrutiny plaintiff received to his removal of clothing (instead of proceeding through
the AIT as requested); indeed, plaintiff alleges that once he removed his pants, Smith’s only
response was to “inform[] [Tobey] that removal of clothing was not necessary” for that process.
Id. ¶ 32.4
Given plaintiff’s bizarre behavior -- and in particular the fact that he removed his pants in
public -- the facts as pled do not “allow a court, drawing on ‘judicial experience and common
sense,’ to infer ‘more than the mere possibility of misconduct.’” Iqbal, 129 S. Ct. at 1949-50.
Further, these allegations simply do not rise to the level of “specific, nonconclusory factual
allegations that establish improper motive.” Crawford-El, 523 U.S. at 597-98. Indeed, there is
no allegation in the factual section of his Second Amended Complaint relating to Doe’s
motivation. Accordingly, the allegations that Doe (like Defendant Jones) “sought intervention
by the RIC Police,” or requested “that they take action against him,” 2d Am. Compl. ¶ 33, like

3

Indeed, plaintiff offers no allegation to suggest how Doe would have been aware of
plaintiff’s actions or the writing on his chest, as officers Vann and Mason “arrived at the area”
were plaintiff stood undressed after Doe is alleged to have sought their intervention. Id. at ¶¶
33-34. The Second Amended Complaint thus lacks any well-pled allegation that Doe was aware
of plaintiff’s message or putative expressive conduct.
4

Plaintiff’s own allegations make clear as a sequential matter that Smith only sought the
assistance of her supervisor once he made clear that he intended to pursue his own agenda during
the course of his screening. 2d Am. Compl. ¶ 35.
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the “vague and conclusory allegations of nefarious intent and motivation by officials . . . are not
well-pleaded, and are therefore insufficient to ‘plausibly suggest an entitlement to relief.’” Ctr.
for Bio-Ethical Reform, 648 F.3d at 377.
Nor can plaintiff’s conclusory allegations demonstrate that Doe acted with improper
intent. Plaintiff states that defendants, including Doe, “seized Plaintiff . . . without probable
cause because of the message conveyed by Plaintiff’s silent, nonviolent expression of objection
to the TSA’s screening policies that involve random application of AIT or enhanced pat-down
procedures, and thereby engaged in content and/or viewpoint discrimination and deprived
plaintiff of his fundamental right to engage in free speech. . . .” 2d Am. Compl. ¶ 105. This
allegation does not satisfy the standard in Iqbal because the placement within the complaint and
the language used in this sentence demonstrate that plaintiff is here describing his legal claim. In
other words, plaintiff is not in this sentence making a specific factual allegation with respect to
the motivation of Doe. Like some of the allegations rejected in Iqbal, this sentence comprises a
“[t]hreadbare recital[] of the elements of a cause of action, supported by mere conclusory
statements” and therefore “do[es] not suffice.” Iqbal, 129 S. Ct. at 1949. The sentence above
does little more than state plaintiff’s preferred legal standard for the various causes of action he
was pursuing: seizure “without probable cause” and “because of the message,” therefore
“engag[ing] in content and/or viewpoint discrimination” and violating “his fundamental right to
engage in free speech. . . .” 2d Am. Compl. ¶ 105. Such a recitation of legal standards is
precisely the sort of allegation that courts have specifically declined to credit as factual
allegations. See, e.g., Monroe v. City of Charlottesville, 579 F.3d 380, 387 (4th Cir. 2009) (“the
allegations that Monroe was ‘coerced, that his belief was ‘objectively reasonable,’ and that the

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encounter ‘was not [] consensual’ are legal conclusions, not facts, and are insufficient”). Indeed,
plaintiff’s allegation is very similar to the allegation found inadequate in Iqbal, that defendants
“‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions
of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national
origin and for no legitimate penological interest.’” 129 S. Ct. at 1951. Buttressing this
conclusion is the fact that plaintiff’s more detailed factual allegations are in a different section of
the complaint entitled “Facts Regarding December 30, 2010 Incident at RIC.” 2d Am. Compl. at
11. Thus, to the extent allegations of fact are included within these legal claims in paragraph
105, a court should “refuse[] to accord them an assumption of truth for purposes of weighing a
motion to dismiss.” Nemet Chevrolet, 591 F.3d at 255.
Further, this statement regarding Doe’s motivation is far too conclusory, ambiguous, and
implausible to be credited. It is too conclusory because simply stating that defendants acted
“because of the message conveyed” does not rise to the level of “‘specific,

nonconclusory

factual allegations’ that establish improper motive.” Crawford-El, 523 U.S. at 597-98. It is
insufficiently specific because plaintiff’s speech was just one part of a series of actions that was
unusual if not bizarre. Plaintiff’s allegation that the agents acted “because of the message
conveyed”could refer to both his bizarre conduct as well as the speech, and this ambiguity is
fatal to his claim. See Iqbal, 129 S. Ct. at 1950 (“[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it
has not ‘show[n]’- ‘that the pleader is entitled to relief’”). And it is implausible because the
much more likely explanation for the agents’ referral was plaintiff’s unusual behavior in the
screening area. Indeed, the Second Amended Complaint is bereft of any allegation that any TSA

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employee made a statement to plaintiff or anyone else that would be indicative of their intent to
retaliate against plaintiff based on his message. Absent some additional direct or circumstantial
indicia that defendant had an impermissible motive for her actions such as these, plaintiff’s
allegations that Doe “sought intervention” or requested that officers “take action,” 2d Am.
Compl. ¶ 33, constitute ambiguous and conclusory assertions that necessarily cannot suffice as
the predicate for a viable First Amendment violation.
Plaintiff’s First Amendment claim against Doe must be dismissed because, under Iqbal,
plaintiff’s conclusory allegations of improper motive are inadequate. Indeed, as shown above,
there is a much “‘more likely explanation[ ]”’ for the government action that is “legitimate” and
the Second Amended Complaint therefore does “‘not plausibly establish’ the ‘purposeful,
invidious discrimination’ [plaintiff] asked [the court] to infer.” Iqbal, 129 S. Ct. at 1951-52.
In addition, plaintiff’s allegation in paragraph 105 does not differentiate between any
of the individual defendants in describing who acted “because of the message conveyed.”
But it is well established that a plaintiff must attribute facts to each particular defendant and
cannot rest on general allegations like these that sweep in all of the defendants as a group. See
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (dismissing Bivens claims in part
for failure to satisfy the standard of fair notice required by Rule 8 and explaining that “[g]iven
the complaint’s use of either the collective term ‘Defendants'’ or a list of the defendants named
individually but with no distinction as to what acts are attributable to whom, it is impossible for
any of these individuals to ascertain what particular unconstitutional acts they are alleged to have
committed”).

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II.

PLAINTIFF HAS NOT ESTABLISHED A FIRST AMENDMENT VIOLATION
In an action for damages against government officials performing discretionary functions,

courts afford the officers qualified immunity “shielding them from civil damages liability as long
as their actions could reasonably have been thought consistent with the rights they are alleged to
have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475
U.S. 335, 341 (1986), and is intended to limit the “substantial societal costs” of imposing
monetary liability on government officials, including “the risk that fear of personal monetary
liability and harassing litigation will unduly inhibit officials in the discharge of their duties,”
Anderson, 483 U.S. at 638. Thus, immunity stems from the potential injustice “of subjecting to
liability an officer who is required, by the legal obligations of his position, to exercise
discretion,” and “the danger that the threat of such liability would deter his willingness to
execute his office with the decisiveness and the judgment required by the public good.” Scheuer
v. Rhodes, 416 U.S. 232, 239-40 (1974). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about open legal questions.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).
A qualified immunity defense is analyzed in two steps. First, a court may consider the
“threshold question: Taken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer's conduct violated a constitutional right? . . . If no constitutional
right would have been violated were the allegations established, there is no necessity for further
inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001). That first
issue -- “whether the plaintiff alleges the violation of a clearly established constitutional right” --

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is “purely a question of law” to be decided by the court. Sharrar v. Felsing, 128 F.3d 810, 826
(3d Cir. 1997). It is the plaintiff’s burden to establish the violation of a constitutional right.
Sherwood v. Mulvihill, 113 F.3d 396,399 (3d Cir. 1997).
The second step “is to ask whether the right was clearly established . . . . The relevant,
dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 201-02. In other words, even if
the officer’s actions did violate a constitutional right, the question is whether the officer
“reasonably but mistakenly” concluded that his actions were lawful. Anderson, 483 U.S. at 641.
The right cannot simply be generally stated, but “must have been ‘clearly established’ in a more
particularized, and hence more relevant,” sense. Id. at 640. In short, courts should not “define
clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084
(2011). When making this two-part analysis, the Fourth Circuit has cautioned that the fact that
“‘differences’ exist[] between the parties’ factual allegations and [that] discovery [i]s not
complete” should not forestall a grant of qualified immunity, which must turn on whether,
“based on [the plaintiff’s] allegations,” the defendant’s conduct “violated law that was clearly
settled at the time the actions occurred.” DiMeglio v. Haines, 45 F.3d 790, 803 (4th Cir. 1995).
Ultimately, this too is a question of law for the court, and while these two analyses should
ordinarily be considered in sequence, “judges of the district courts and the courts of appeals
should be permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009).

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A.

Plaintiff Has Not Established A Violation of a Clearly Established Law

Plaintiff cannot point to any clearly established law that would guide the TSA agents
when facing a protest carried out during security screening and tell the agents that it was
unconstitutional to refer such a protester to local law enforcement for further questioning.
Without such clear authority identifying limits on an appropriate response to a person going
through security screening who is staging a protest, Doe should not be held personally liable for
damages. The Supreme Court has held, in the context of activity within an airport terminal but
outside the security screening area, that restrictions on speech at airport terminals “need only
satisfy a requirement of reasonableness.” Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 683 (1992). Thus, “it is . . . black-letter law that, when the government permits speech
on government property that is a nonpublic forum, it can exclude speakers on the basis of their
subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of
the purpose served by the forum.” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 189 (2007).
In the context of disruptive conduct in the security checkpoint screening area, “the
constitutional question presented . . . is by no means open and shut.” Wilson v. Layne, 526 U.S.
603, 615 (1999). There is no case describing the contours of the right “in a . . . particularized,
and hence more relevant” sense, Anderson, 483 U.S. at 640; in other words, there is no case
establishing a First Amendment right where a plaintiff’s actions involved both speech elements
as well as the “bizarre” conduct engaged in here, namely undressing not just in public, but in a
context like security screening checkpoint. Under these circumstances, a general standard of
reasonableness provides insufficient guidance to TSA employees facing the particular
circumstances before them. Instead, to establish potential liability, there must be a closely

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analogous situation where it was held that a speech restriction violated the First Amendment.
See al-Kidd, 131 S. Ct. at 2084 (“The general proposition, for example, that an unreasonable
search or seizure violates the Fourth Amendment is of little help in determining whether the
violative nature of particular conduct is clearly established.”). In reality, TSA agents must deal
with disruptions in the screening area quickly and based on minimal information about the
person, other than the behavior they are witnessing as events unfold, and a bright line regarding
screening area disruptions should be established before an agent is to be held personally liable.
No such line exists for the circumstances presented by plaintiff’s Second Amended Complaint.
The only arguably similar case leads to the conclusion that there is no viable First
Amendment violation here. In Rendon v. Transportation Security Administration, 424 F.3d 475
(6th Cir. 2005), the Sixth Circuit rejected a First Amendment challenge to a civil penalty
assessed against a passenger who violated 49 C.F.R. § 1540.109 by becoming belligerent and
cursing inside the screening area. The Sixth Circuit rejected a challenge to the regulation by the
individual claiming that his speech was protected, and upheld the purpose of the rule, to prevent
“abusive, distracting behavior, and attempts to prevent screeners from performing required
screening.” Id. at 424 F.3d at 478 (citing 67 Fed. Reg. 8340, 8344 (Feb. 22, 2002)).
To conclude that plaintiff has made out a valid First Amendment claim, the Court would
have to construe the allegations in the Second Amended Complaint to render an action that is
reasonable (or at the very least, not inconsistent with clearly established law) unreasonable.
Here, plaintiff did more than simply convey a message about the Fourth Amendment, he also
undressed to reveal that message; took off his pants in the screening line (an action that was not
necessary to conveying his written message); and kept them off even though he was told it was

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not necessary. 2d Am. Compl. ¶ 32. Plaintiff further acknowledges that this behavior had the
potential to cause a disturbance and concomitant delay. Id. ¶ 27. Because plaintiff himself
alleges that these actions occurred and led to TSA’s referral of him to the airport police, he has
not made out a claim that the referral was based on the viewpoint of his speech alone.
B.

Plaintiff Has Not Pled A First Amendment Violation

As demonstrated, the plaintiff has failed to allege the violation of a clearly established
right, and Defendant Doe is entitled to qualified immunity. Even if the Court were to reach the
First Amendment question, however, Plaintiff also has not set forth an actionable violation.
Courts recognize that the “right to free speech includes not only the affirmative right to speak,
but also the right to be free from retaliation by a public official for the exercise of that right.”
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). Retaliation is forbidden
because it “allow[s] the government to ‘produce a result which [it] could not command
directly.’” Id. (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). To state a retaliation
claim the plaintiff must “establish three elements”: (1) “that his or her speech was protected”; (2)
“that the defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally
protected speech”; and (3) “that a causal relationship exists between its speech and the
defendant’s retaliatory action.” Id. at 685-86.
1.

Plaintiff’s Speech Was Not Protected

With respect to the first element of a First Amendment claim, it is not clearly established
that, while standing at a security screening checkpoint, plaintiff’s speech was protected. Suarez
Corp., 202 F.3d at 685. Reasonable restrictions on speech are appropriate in this context under
Krishna Consciousness, meaning the First Amendment does not confer a right to engage in a

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“silent, nonviolent” protest, 2d Am. Compl. ¶ 105, while going through security screening at an
airport, without inviting further inquiry by the authorities, such as here.
Several concerns unique to the screening environment support allowing further inquiry
by authorities when a passenger engages in unusual conduct within the screening area. See
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 809 (1985) (“The
reasonableness of the Government’s restriction of access to a nonpublic forum must be assessed
in the light of the purpose of the forum and all the surrounding circumstances.”). It is entirely
appropriate and lawful for screeners to consider a person’s speech and behavior to determine if
they present a higher risk to security, and to make further inquiries if that behavior is unusual or
out of the ordinary. Expressive activity is often relevant to an officer’s decision about whether
an arrest would make sense under the circumstances. Further, plaintiff contends that his message
contained not only speech, but also conduct, i.e. the removal of clothing in public. See Cohen v.
California, 403 U.S. 15, 18 (1971) (recognizing harder issue presented when dealing with speech
alone, “not upon any separately identifiable conduct which allegedly was intended . . . to be
perceived by others as expressive of particular views but which, on its face, does not necessarily
convey any message and hence arguably could be regulated without effectively repressing
[defendant’s] ability to express himself”).
In addition, attention-grabbing actions like those of the plaintiff in the screening area
could well be expected to divert attention from the orderly screening process to a focus on that
individual, possibly allowing others to evade scrutiny. See 67 Fed. Reg. 8340, 8344 (2002) (“A
screener encountering such a situation [where a passenger is interfering with the screeners job]
must turn away from his or her normal duties to deal with the disruptive individual, which may

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affect the screening of other individuals”). Plaintiff admits that he understood his behavior
would cause just that kind of disturbance. 2d Am. Compl. ¶ 27 (plaintiff waited “for the number
of people in line to diminish” to “avoid the possibility of causing delay for his fellow
passengers”). Moreover, plaintiff acknowledges that supervisory attention was required here (id.
¶ 33), and TSA has recognized that there is a disruption when the “screener may . . . need to
summon a checkpoint screening supervisor and law enforcement officer, taking them away from
other duties” and that “[c]heckpoint disruptions potentially can be dangerous in these situations.”
67 Fed. Reg. 8344. Indeed, if one were going to attempt to sneak a person or item through
airport security, staging some form of diversion, such as conduct like plaintiff’s, would
undeniably be helpful. Even if a protestor like plaintiff has no intention of creating a disturbance
for nefarious purposes, a rule protecting such protests in the screening area could readily be
manipulated by individuals or groups that do have evil intent. See Cornelius, 473 U.S. at 810
(“the Government need not wait until havoc is wreaked to restrict access to a nonpublic forum”);
see also 49 C.F.R. § 1540.105 (establishing that “[n]o person may . . . attempt to circumvent . . .
any security system, measure, or procedure”).
Further, an essential aspect of the TSA screening system is that threats be identified
promptly and efficiently so that passenger travel is not delayed. Unusual behavior that is
intended to draw attention will undeniably slow down the screening process, and a prompt
referral of that behavior to local authorities avoids that slow down while still ensuring that a
careful assessment of the threat is undertaken. See Rendon, 424 F.3d at 479 (recognizing
legitimate and substantial interest served by TSA regulation barring interfering with TSA
screeners, “as its purpose is to prevent individuals from interfering with screeners in the

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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”).
Moreover, restrictions in the screening area are reasonable because there are many “alternative
channels” for speech like plaintiff’s, such as the airport terminal itself. Cornelius, 473 U.S. at
809.
Given the function of security screening in identifying dangerous materials and the
importance of avoiding disturbances to achieving this end promptly, it is reasonable to promptly
refer unusual behavior to local authorities for further inquiry. It is common sense that attentiongrabbing actions such as plaintiff’s, staged in the security screening area, are by definition
disruptive. TSA regulations reasonably provide that “[n]o person may interfere with . . . [TSA]
screening personnel in the performance of their screening duties.” 49 C.F.R. § 1540.109. The
Supreme Court has recognized that it is reasonable to regulate speech so as to avoid disruptions
in the general airport environment and more generally. See Krishna Consciousness, 505 U.S. at
682-83 (recognizing importance of goal that “terminals . . . will contribute to efficient air travel”
and concluding that allowing solicitation in the terminal would “slow both [passengers] . . . and
those around them” and “[d]elay[s] may be particularly costly in this setting”) (plurality
opinion); id. at 689 (O’Connor, J., concurring) (agreeing “that publicly owned airports are not
public fora” and that solicitation “disrupts passage”); Bd. of Airport Comm’rs of City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (striking down bar on all First
Amendment activities at airport, but recognizing that authority could “regulate expressive
activity in the Central Terminal Area that might create problems such as congestion or the
disruption of the activities of those who use LAX”). Such interests are significantly heightened

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within the security screening area. See Krishna Consciousness, 505 U.S. at 681 (recognizing
need for “a new inquiry [in each different type of transport facility] whether the transportation
necessities are compatible with various kinds of expressive activity”). Thus, it is appropriate and
reasonable to respond to disruptive conduct within the screening area by quickly moving to
contain the individual(s) involved and enlisting local law enforcement to ensure that screening
proceeds in an orderly fashion nevertheless. Given these interests, plaintiff’s choice of
expressive conduct was not constitutionally protected.
2.

Defendant's alleged retaliatory action did not adversely affect
plaintiff’s constitutionally protected speech

The second element of a First Amendment claim requires the plaintiff to show “that the
defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally protected
speech.” Suarez Corp., 202 F.3d at 686. In other words, the plaintiff must “show that the
alleged retaliatory action deprived him of some valuable benefit.” Huang v. Bd. of Governors of
Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990). Significantly, “[n]ot every restriction is
sufficient to chill the exercise of First Amendment rights, nor is every restriction actionable,
even if retaliatory.” DiMeglio, 45 F.3d at 806 (citing ACLU of Md. v. Wicomico County, Md.,
999 F.2d 780, 785 (4th Cir. 1993); Stott v. Haworth, 916 F.2d 134, 140 (4th Cir. 1990)).
Here, at most the Second Amended Complaint indicates that TSA employee Doe ensured
that the Richmond Airport police knew about the disturbance at the security screening
checkpoint and accompanied two officers to the checkpoint area, after which the local law
enforcement took plaintiff into custody for questioning. 2d Am. Compl. ¶ 35. The allegation
that Doe requested that the officers “take action” regarding plaintiff is simply insufficient to
plausibly allege that the action was plaintiff’s arrest, or that this request was motivated by the
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content of his message, supra note 3, particularly given that plaintiff’s “bizarre” behavior
objectively justified his brief detention as a Fourth Amendment matter,5 Aug. 30 Mem. Op. at
31-33. Indeed, the referral by the TSA employees to local law enforcement, as explained above,
is justified by the substantial interests of further investigating unusual activity in the screening
area and promptly clearing the area of any disturbances to allow efficient operation. Ultimately,
as plaintiff alleges, he was able to go through screening and catch his flight. 2d Am. Compl. ¶
64. Thus, the request for assistance by the airport police, by itself, is insufficient to state a claim.
3.

There is no causal relationship between plaintiff’s speech and
defendants' alleged retaliatory action.

The third element of a First Amendment claim requires that plaintiff show “that a causal
relationship exists between its speech and the defendant's retaliatory action.” Suarez Corp., 202
F.3d at 686. The Fourth Circuit has held that the “causation requirement is rigorous; it is not
enough that the protected expression played a role or was a motivating factor in the retaliation;
claimant must show that 'but for' the protected expression the employer would not have taken the
alleged retaliatory action.” Huang, 902 F.2d at 1140. Significantly, if a plaintiff’s allegations of
retaliation do not indicate that the constitutionally protected conduct was the “but-for cause of
the discharge, the claim fails for lack of causal connection between unconstitutional motive and
resulting harm, despite proof of some retaliatory animus in the official’s mind.” Hartman v.
Moore, 547 U.S. 250, 259-60 (2006) (emphasis added). Plaintiff cannot satisfy this element for
the reasons stated above: plaintiff has failed to adequately allege that his referral would not have

5

Plaintiff’s Second Amended Complaint makes no connection between his First
Amendment claim and the allegation that Doe “remov[ed] an unidentified item from [his]
belongings” after he was detained by airport police officers. 2d Am. Compl. ¶ 35.
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occurred but for the agents’ objection to the viewpoint presented in his speech. Instead, the
much more likely cause of the referral was plaintiff’s unusual behavior.
Separately, to the extent plaintiff’s allegations are intended to give rise to an inference
that Doe requested his arrest by airport police officers in retaliation for the content of his
message, that theory implicates an open question of constitutional law: whether a plaintiff can
allege a viable First Amendment violation based on retaliatory arrest where probable cause for
that arrest exists.6 See, e.g., Howards v. McLaughlin, 634 F.3d 1131, 1147-48 (10th Cir. 2011)
(describing circuit split on this issue), petition for cert. filed, Reichel v. Howards, 80 U.S.L.W.
3114 (U.S. Aug. 25, 2011) (No. 11-262). Where, as here, there does not appear to be settled
Supreme Court or Fourth Circuit precedent on this point, and there is no consensus among
federal courts regarding this aspect of the right in question, a defendant cannot be found to have
violated a clearly established constitutional right. See Rogers v. Pendleton, 249 F.3d 279, 28788 (4th Cir. 2001). As such, Doe is entitled to qualified immunity as to plaintiff’s First
Amendment claim.
WHEREFORE, the federal defendants respectfully request that the Court dismiss
plaintiff’s Second Amended Complaint, with prejudice, as to the federal defendants and for such
further relief as the Court deems appropriate.

6

Significantly, this Court previously noted that “the command to arrest Plaintiff came
from” one of the airport police officers, and that the complaint was otherwise devoid of any facts
suggesting that Smith or Jones made any similar assertion or otherwise indicated that they
wanted plaintiff arrested. Aug. 30, 2011 Mem. Op. at 32-33.
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DATED this 21st day of October, 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
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 21st day of October, 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]