Appendixes to TCRP Report 86: Public Transportation Passenger Security Inspections, A Guide for Policy Decision Makers (2007) / Chapter Skim
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From page 33... ...
Appendix D Legal Implications of Performing Passenger Security Inspections The decision-making process concerning the implementation of passenger screening involves numerous considerations. A transit agency must consider whether to implement passenger screening at all, and if so, under what conditions: Should screening be suspicionless or based on behavioral profiling;1 should screening be conducted daily or based on threat levels; what method should be used for conducting the screening?
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From page 34... ...
develop a constitutional passenger security screening program should also result in a program reasonably defensible against tort actions. The legal issues examined below are: • Constitutional limitations on conducting passenger security inspections (fixed checkpoints, consent, profiling, drug or explosive-seeking dogs, luggage searches, administrative searches, specials needs, airport security searches, transit searches)
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From page 35... ...
Moreover, the Fourth Amendment only attaches when the person searched has reasonable expectation of privacy.8 Thus, transactions in plain view in a public forum are not subject to Fourth Amendment protection. Basically, there is no reasonable expectation of privacy for what is readily observable in a public place.
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From page 36... ...
For the most part, however, searches of transit passengers will clearly come under the Fourth Amendment and state constitutional provisions regarding searches and seizures, and absent probable cause and warrants, can only be justified under exceptions to those requirements.14 Common exceptions to the warrant and individualized suspicion requirements, some of them overlapping in reasoning and application, are: fixed checkpoints; consent; profiling; canine sniff; administrative searches; special needs; airport security searches; and area entry searches.15 Recently several courts have upheld suspicionless security searches on transit systems applying precedents from the alreadyestablished exceptions. While state law cannot provide less protection than the Fourth Amendment, it may offer greater protection.
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From page 37... ...
not sufficient, to establish consent.24 Given that these "other indicia of reasonableness" have a bearing on the consent issue, where the need to search is not as vital as in the case of people boarding airplanes (or if the search is too intrusive for the security concerns at issue) , courts have often declined to uphold searches based on implied consent.25 The doubts courts have expressed concerning the voluntariness of consent in airport cases given the possible lack of alternatives for air travelers26 could also be expressed about some transit riders.
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From page 38... ...
Hispanic appearance into account in deciding whether to stop someone for a suspected immigration violation.33 Some states have addressed racial profiling via legislation. For example, California, Connecticut, Oklahoma, and Rhode Island have enacted prohibitions against racial profiling.34 A number of state courts have found pretextual stops to be unconstitutional under their state constitutions, either because such stops violate the state constitution,35 or because the scope of the stop beyond the original reason was not supported by a reasonable articulation of suspicion that criminal activity was afoot.
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From page 39... ...
In the Supreme Court's recent review of a canine sniff, both Justices Souter and Ginsburg, dissenting from the majority opinion upholding the canine sniff for drugs during a traffic stop, suggested that sniff searches for explosives would likely be justified because of the societal risk40 or under a special needs theory.41 Some lower federal courts have held that a canine sniff of people, as opposed to luggage, is a search;42 others have held even a canine sniff of people is not a search.43 Most states have followed United States v. Place,44 holding that a canine sniff, at least of property, is not a search under their state constitutions.45 However, a number of state courts have rejected the holding in Place in interpreting the state constitutions at issue, generally requiring reasonable suspicion for a canine sniff of property.46 Washington impact of practical limitations on legal issues.
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From page 40... ...
reviews canine sniffs on a case-by-case basis.47 Pennsylvania requires probable cause for a canine sniff of a person.48 Since transit searches may entail searching briefcases and similar items, the case law on luggage searches is relevant. Clearly the seizure of personal property can amount to a seizure of the person.49 Generally the issue is the extent to which the person's possessory right in the property has been interfered with.
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From page 41... ...
It appears that while the existence of a statute or regulation would make it more likely that a search policy would be upheld under an administrative search analysis, a policy that contained the characteristics of an administrative search could be upheld based on a reasonableness analysis whether or not it could claim the administrative search label.58 Although transit plaintiffs have questioned whether special needs is an appropriate framework for evaluating a transit security screening procedure,59 two district courts have already adopted the special needs analytical approach.60 In order to be upheld under the special needs doctrine, a search procedure must be grounded on a substantial governmental need such as protecting public safety or deterring terrorism, rather than merely being a law enforcement mechanism. The court will balance these factors: 1)
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From page 42... ...
hijacking crisis, the government need not demonstrate specific danger at one airport to justify security screening there and observed that given the purpose of deterrence, "a low incidence of such conduct, far from impugning the validity of the scheme for implementing this interest, is more logically viewed as a hallmark of success."68 Airport security searches provide a parallel to those that might be conducted in transit systems to deter a terrorist threat, and they provide useful guiding principles about the acceptable scope and purpose of such searches. In addition, some airport security searches have raised the issue of racial profiling,69which could be an issue in transit security searches, particularly targeted searches.
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From page 43... ...
analogizing to border searches;74 reasonableness;75 implied consent;76 and analogizing to Terry.77 The reasonableness argument is that the airport security search does not really fit within any recognized exception to the warrant requirement but should be judged on its reasonableness, since an airport security search cannot as a practical matter be subject to the warrant requirement. Under this analysis, the standard for making the judgment as to reasonableness is whether in the totality of the circumstances the search is reasonable: a passenger's ability to choose not to fly in order to avoid the search is not construed as implied consent, but is a factor in evaluating reasonableness.78 Courts have held that using a metal detector is a search under the Fourth Amendment,79 but a reasonable one,80 as they generally consider the nature of the privacy intrusion to be minimal.81 In fact, use of the magnetometer has often been key to the constitutionality of maintained or products held by regulated industries.
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From page 44... ...
the search,82 as is staying within the scope of the search.83 Thus, a narrowly defined search for guns and explosives is constitutionally justified by the need for air traffic safety, but generalized law enforcement searches of all passengers as a condition for boarding commercial aircraft would be unconstitutional.84 The governmental need justifying airport security searches is generally recognized to be deterrence, rather than actual apprehension of terrorists.85 Requiring passengers to pass through metal detectors, submit to visual searches, and occasionally undergo physical searches has been found to fulfill the requirement that the search be reasonably effective.86 At least in the early cases, there was no consensus that the danger of hijacking alone was sufficient to justify a search.87 Generally courts have rejected the argument that airport security screenings unconstitutionally impinge on the right to travel.88 A perhaps notable difference between airport searches and those in transit systems is that TSA is required by law to inspect all checked baggage and screen passengers and carryon luggage.89 However, the absence of similar statutory authority was not discussed by the district court that looked to airport cases in evaluating the constitutionality of a transit search policy.90 82 E.g., 454 F.2d 772 (search following magnetometer trigger justified by magnetometer information and limited in scope to initiating circumstances, therefore reasonable)
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From page 45... ...
Regardless of the underlying theory, in an airport security analysis the court will generally balance these factors: the need to prevent hijackings/possible public harm against the intrusiveness of the search. The scope of the search should be calibrated to the purpose of finding explosives or weapons.
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From page 46... ...
the dangers posed were not as significant as those in the airport security context.98 The Second Circuit, in reviewing a challenge to searches before a Ku Klux Klan rally, upheld magnetometer searches, relying on the relatively non-intrusive nature of the searches, and the provision of notice that the searches would take place and could be avoided by leaving the area, and a procedure of searching all people who did enter the area.99 The Fourth Circuit, in an opinion declining to extend the sensitive area exception to searches conducted at a checkpoint created at the entrance to a motorcycle rally, emphasized that the search it found unconstitutional was not driven by "necessity for lack of any practical alternative means for preventing violence." The court found this to be a key factor in distinguishing the unconstitutional search from a constitutional sensitive entry search program for which "there literally was no other feasible alternative having any chance of success."100 The court also considered the efficacy (or lack thereof) of the searches.101 Following the 2004 Republican National Convention, a New York District Court enjoined suspicionless bag searches at demonstrations absent a showing of a specific threat to public safety and an indication of how the searches would reduce the threat; magnetometer searches were excluded from the injunction.102 As there has been very little case law directly involving transit searches, the predominant theories of analysis have yet to be established, and litigants may differ as to which are appropriate.
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From page 47... ...
supra.103 Defendants countered that the nature of the terrorist threat distinguished the searches from any of the border cases.104 In addition, plaintiffs argued that it was unconstitutional to condition access to the mass transit system upon a waiver of Fourth Amendment rights.105 The District Court did not address the plaintiffs' arguments. Instead it reviewed the MBTA's contention that the searches were constitutional administrative security searches similar to those upheld for airports and the entryways to certain public areas such as courthouses and military installations.
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Accordingly, the court denied the motion for injunctive relief. The request for an injunction had been narrowed to implementation of the search policy during the political convention within the designated security zone.
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in the wake of the London subway bombings. The CIP provides for visual searches, and, if necessary, physical searches to be conducted, if safe, by the person carrying the bag to be searched.
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In its legal analysis, the court held that the CIP meets a special need: the need to reduce the risk of a terrorist attack on the subway,133 essentially rejecting plaintiffs' argument that the CIP constituted general law enforcement. (Plaintiffs had characterized bringing explosive devices into the subway system as criminal misconduct.
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finding it to be minimal. The elements in that conclusion were notice,142 provided in time to allow would-be passengers to turn around and leave before they paid their fares; the open nature of the inspections performed at fixed checkpoints with minimal discretion on the part of the inspecting officers; the ability of passengers to avoid the search; and the limited scope and duration of the searches.
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and dismissed, the plaintiffs' argument that the threat was not sufficiently immediate. The court noted that neither an express threat or special imminence is required to give "great weight to the government's interest in staving off considerable harm."152 The court then held that the threat at issue was sufficiently immediate: "In light of the thwarted plots to bomb New York City's subway system, its continued desirability as a target, and the recent bombings of public transportation systems in Madrid, Moscow, and London, the risk to public safety is substantial and real."153 The court also held that a mass transportation passenger who keeps closed bags on his person has an undiminished expectation of privacy.154 However, the court also held that the intrusion under the NYC program was minimal due to: 1)
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law enforcement,160 and should protect a need that cannot be protected by general policing. Not all security threat levels may be sufficient to establish a vital government interest.
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abolished immunity, such legislation is strictly construed against the government.165 On the other hand, statutes imposing liability are generally, but not always, strictly construed.166 Since many state tort claims statutes are modeled on the Federal Tort Claims Act,167 state courts construing their own tort claims act attach "significant weight" to Federal decisions construing the Federal Tort Claims Act.168 Federal courts construing state law may also look to the Federal Tort Claims Act.169 Generally Tort Claims Acts require a determination of whether there is an analogous function in the private sector for which a similarly situated private person would be liable. If there is an analogous function, it must be determined whether an exception to the Tort Claims Act applies; if there is an applicable exception, the State is immune from the alleged tort liability.170 Depending on the provisions of the applicable state statute, the exception to the general waiver of immunity may be an entitlement not to stand trial, rather than a defense to liability.171 Perhaps the most important exception under the Federal Tort Claims Act, and for the state tort claims statutes modeled on it is the exemption for claims based on an agency's exercise of discretion.172 Thus the question of whether a particular decision is discretionary for purposes of this exemption will be key.173 The D.C.
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From page 55... ...
considered ministerial, rather than discretionary, and therefore is not immune from suit.178 A California court has already held that a bus driver's decision not to take measures to intervene in a developing altercation on his bus was not a discretionary decision immune from suit, as California law imposed a duty of "utmost care and diligence to protect passengers from assaults by fellow passengers.179 Moreover, failure to follow Federal or state law cannot be deemed to be an exercise of discretion.180 Another exception is based on the distinction between governmental and proprietary functions, arising from the law of municipal corporations. A municipal corporation may be sued for the exercise of proprietary functions, but not for the exercise of its governmental functions.181 The control and regulation of bus companies, for example, is well settled to be a governmental function.182 The supervision of a transit police force has been held to be a governmental function and thus immune from suit.183 And some jurisdictions provide immunity under both discretionary and governmental theories: In addition to case law providing the Washington Metropolitan Transit Authority (WMATA)
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(lower standard of care) or invitee (higher standard of care)
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may be narrowly construed.198 On the other hand, even where damages are allowed against transit agencies, punitive damages, either by statute199 or court decision, are often disallowed.200 The public duty rule may also come into play in assessing municipal liability. Under that rule, subscribed to by the majority of jurisdictions,201 where the municipality has a duty to the general public, as opposed to a particular individual, breach of the duty does not result in individual tort liability.202 The duty to provide police protection is generally held to be a public duty.203 Ohio, for one, has applied the public duty rule to regional transit authorities, holding transit authorities not liable for assaults committed at transit authority station.204 In Drexler v.
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Finally, quasi-municipal corporations are generally not liable for torts unless liability is provided by statute.207 Thus while the general trend may be toward liability, policy decisions such as whether to allow passenger screening may be deemed immune from liability, either because there is no analogous private function (and so it is considered a governmental function) or because of the degree of judgment and discretion involved.
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From page 59... ...
Courts have recognized constitutional torts using reasoning analogous to Bivens,214 as well as based on common law principles215 -- sometimes within the same case.216 Some states have expressly refused to recognize constitutional torts.217 Factors courts will consider in deciding whether to imply a cause of action for a constitutional violation include the existence of reasonably adequate statutory remedies218 and legislative history concerning voter intent.219 The court in Brown, supra, held that a civil damage remedy can only be implied for a violation of the State constitutional provision if the provision is self-executing and then if a damage award is an appropriate means of enforcing the provision at issue.220 Moreover, the standard of care for a constitutional tort may be higher than mere negligence.221 Given the fact-dependent nature of these cases -- there are decisions finding such rights of action under some circumstances but not under others in the same jurisdictions -- it is extremely important to review state case law in a particular jurisdiction to determine whether there could be constitutional tort liability for a passenger screening procedure held to violate the state constitution, whether on search and seizure grounds or because of impingements on a right to travel or other right recognized under a particular state constitution. Tort liability for invasion of privacy Tortious invasion of privacy is a relatively new concept.222 The "four forms" of the tort are: unreasonable (unauthorized)
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From page 60... ...
be violated by inspections that unreasonably exposed a person's private possessions or person to others. However, the first form generally requires these elements: the intrusion must be unauthorized; the intrusion must be offensive or objectionable to a reasonable man; the matter intruded upon must be private; and the intrusion must cause anguish and suffering.224 In particular, backscatter x-ray results, if not properly handled, might be deemed an unreasonable intrusion, but the very use of such x-rays may not be sufficient to state a claim.
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some courts have held that common carriers are not insurers of passengers' safety.230 And while articulations of legal principles may suggest a significant potential for liability, the application of those principles to the facts may yield a different result. In any event, given the legal underpinnings of the higher standard of care owed passengers, to the extent there is any liability for having inadequate security screening, there may be less liability vis-a-vis those waiting to board or possibly leaving a station than vis-a-vis on-board passengers.
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landlord, the court must weigh whether the injury results from a breach of duty to maintain reasonably safe premises for invitees or from a failure to provide police protection.240 In the former case liability is certainly possible, while in the latter case the public transportation provider is most likely to be held immune from liability. The particular facts will be crucial in making this determination.
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From page 63... ...
engage in to guard against terrorist attacks, although these do not at present include passenger security screening. However, the TSA has tested a number of passenger screening technologies and has provided support for explosive detection canine teams.
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therefore they did not owe the plaintiffs any duty with regard to passenger screening.252 The issue of sovereign immunity was not raised in pleadings available to date.253 As in the case of constitutional analysis, cases concerning courthouse security may also provide a useful analogy. California, for example, has held that decisions concerning security measures at courthouses do not give rise to liability.
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From page 65... ...
Tort liability for dog exposure (bites, assault, etc.) 259 Currently, use of explosive-detection dogs is not only one of the least intrusive methods of screening passengers for explosives,260 but also perhaps the "best broad-spectrum, high-sensitivity sensory system" for doing so.261 The TSA has expanded its National Explosive Detection Canine Team Program to include the following transit and commuter rail agencies: Massachusetts Bay Transportation Authority (MBTA)
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From page 66... ...
against outsourcing deployment.266 Moreover, meeting certification and training required for federal programs may reduce liability concerns.267 In addition, the steps taken to institute a K9 bomb detection program may affect any subsequent liability. Clearly stating the authority for the program, documenting performance standards, and establishing use of force and bite policies are steps that will establish the reasonableness of the policy, which is important both in terms of its constitutionality and to qualify for exceptions to tort liability.
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certification criteria for explosive trace detection (ETD) systems for luggage270 and bulk explosive detections systems (EDS)
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Council on Radiation Protection and Measurements for the Federal Drug Administration.279 Tort liability for health hazards posed by scanning equipment (for both passengers and workers deploying the technologies) : As is the case for other tort exposures, the policy decision to deploy screening technology may be immune from tort liability.
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From page 69... ...
Tort liability for false/true innocuous positives: Passengers may test positive due to legitimate contact with explosives, such as taking nitroglycerin for medical purposes.286 The manner in which the screening procedure mandates treating passengers who test positive could give rise to actions in tort for false imprisonment. State health restrictions on certain screening technologies: Airport detection devices, owned and controlled by the Federal government, do not fall under state jurisdiction.
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whether it must merely be administered in a way to not interfere with the accessibility of the transit system. As far as we could determine, this question has not been addressed yet.
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