The Monday before Thanksgiving I flew from LAX to DFW and I managed to do it without going through the nude x-ray machine or being sexually violated by a TSA agent.
My flight was scheduled to take off around 3 pm. Anticipating some issues I arrived a little before 8 am to give myself as much time as possible. I wanted to avoid the machines and hands on my private parts, but I didn’t really want to give up my vacation on principle and figured plenty would probably work in my favor.
After going through the initial TSA, “show me your ticket” security checkpoint, it looked like I was going only go through the metal detector. However after emptying my pockets and putting my bag and shoes on the x-ray machine, a TSA agent named Tim requested that I follow him. I pointed to my bag which was disappearing into the machine and he said, “don’t worry, we’ll bring it to you”. I explained that I would like to keep my belongings in sight, so we waited until another TSA agent picked it up, brought it back to me and then I followed Tim.
He let me over to the backscatter machine and began to explain the procedure. I told him that I was familiar with the machine and that I did not want to go through it. He kind of rolled his eyes and asked why.
"The safety of these devices is questionable and even if they were safe I do not want to have nude pictures taken of my body."
Tim said, “It is perfectly safe. The radiation levels are less than you get with a cell phone.”
"How have you verified that?" I asked.
"That is how the machines are made."
"And you know they are performing within spec because….."
At this point Tim seemed a little annoyed and so he began to describe the pat down procedure. I said that I was fine with a pat down, metal detector as long as he did not violate my rights as U.S. citizen as stated in the Constitution. He asked what I meant.
"The Fourth Amendment to the Constitution guarantees my right to be secure in knowing that I will not be subjected to unreasonable searches unless you have probable cause. Trying to search my reproductive organs without probable cause is in no way a reasonable search."
Tim tried to tell me that there are newer laws that say the TSA is authorized to do pat downs.
"As I said, I will submit to a pat down and metal detector as a reasonable search, but touching my privates is unreasonable unless you have some type of probable cause….and it doesn’t matter if the laws were made more recently. You can’t just trump my rights under the Constitution. If new laws violate the Constitution they are illegal."
Tim tried once again to get me to go through the nude scanner, but I made it clear I would not. He directed me to a seat near my bags and told me to wait there while he stepped away for a few minutes. I could see him talking to someone else and then talking on the radio. A few minutes later someone named Officer Warren showed up from the LA Airport Police. He, Tim and the other TSA employee spoke for a few minutes. Tim seemed to be pretty annoyed. Officer Tim listened and then made a call on his on his radio. Then he came over, introduced himself and asked, “what seems to be the problem here?”
I explained that I was fine with any reasonable security measure but as a U.S. citizen I had certain rights under the Constitution and one of those rights is that the government can’t make an unreasonable search of my persons without probable cause and groping my genitals and taking nude pictures of me can’t possibly be considered “reasonable” under any conceivable interpretation of the Fourth Amendment.
"I"m happy to go through a pat down of my body other than my genitals and any metal detectors, but I will not go through the nude scanner or have someone handle my privates."
I was being polite and friendly, keeping my voice down, etc. I didn’t want them to have any reasons to say I was acting aggressive.
Officer Warren asked me a few questions about who I was and what I did for a living. I think he may have been trying to determine if I was a reporter. He also asked if I had any recording devices being used. I told him I did not, suppressing the desire to say, “Why do you think I’ll need them?”
He then went back to where Tim was standing and had been joined by another TSA agent. They talked for awhile and the other TSA agent did most of the talking. I don’t know what was being said, but the other TSA agent seemed pretty annoyed at Officer Warren. After 10 minutes or so, the new TSA agent came over and introduced himself as Tim’s supervisor John. He showed me his badge and explained that to board my flight I would have to go through a pat down or walk through the nude scanner. He said, that this was the policy.
"I understand that this is TSA’s policy, but I am not willing to waive my rights under the Constitution to comply with your policy."
"But that is the only way you can go through this area."
"The Constitution provides me with the right to travel freely between states. I am willing to go through security procedures, but will not allow you to violate my rights as a U.S. citizen."
At his point John asked to see my ticket. He had a bit of a smirk on his face as he looked at it, but then looked disappointed and handed it back to me. I think he realized that I had many hours until my flight so he wasn’t going to be able to tell me that I’d better comply or I’d miss my plane.
John then went back to where Tim and Officer Warren were standing and then stepped off to the side to make a few phone calls. After 10 or 15 minutes Officer Warren came back over and said:
"You know it would really be easier if you just go through the machine."
"I realize that, but I’m not yet prepared to give my my rights as a U.S. citizen just to comply with TSA’s policy. I am willing to be searched, walk through the metal detector, etc. I’m just not willing to have my reproductive organs touched or have nude photographs taken of me."
At this point Officer Warren didn’t really say anything so I continued.
"Do you feel that having your privates touched or nude pictures taken without any type of probable cause is NOT in violation of my rights under the Constitution."
Officer Warren said, “I know what we are allowed to do as police officers but here TSA runs the show. It isn’t really our jurisdiction other than to provide support. So it doesn’t really matter what I think.”
At that point John came back over and said.
"You have three choices. You can go through the backscatter, go through the pat down or leave and be fined $11,000. Which will it be?"
I said, “You have created a scenario where all three options violate my rights under the Constitution. Without porbable cause you do not have the right to do an unreasonable search, nor do you have the right to prevent my movement between States. Unless you can come up with another option, you are in violation of US law.”
"But thats our policy…"
"And your policy is illegal if it violates the Constitution."
Officer Warren and John stepped away a few feet and I heard Officer Warren say something about “metal detector” to which John shook his head and said something about “can’t let them win”. I don’t know if he was talking about me or terrorists. They talked for awhile longer and then came back.
John said, “Officer Warren will escort you from the airport.”
"But that will prevent me from traveling to Dallas."
"Well that is your choice when you refuse to abide by TSA policy." At this John started walking away. I started to argue, but in a low voice Officer Warren said, "How much longer until your flight?"
"Four or Five hours."
"Then I think you’ll be just fine." he said and helped me gather my things.
I walked with Officer Warren a bit confused. I asked, “So what happens now?”
"I’m going to take you to the entrance to the airport"
"And then what?"
"So am I going to be fined?"
"So how is everything just fine. I’m still not able to board my plane."
"I only have to escort you to the doors of the airport, you are free to do whatever you want after that."
"So I can just go back through the line?"
"I didn’t say that, you are free to make your own decision on what to do next."
"Ok" I said. I was still a bit confused. When we got to the door, Officer Warren told me to have a nice Thanksgiving, we shook hands and he walked off. I went and sat down for about 30 minutes still a bit confused. Surely they weren’t going to let me just go right back through the line, but it sounded like Officer Warren was implying just that.
So I got up and went right back where I had come from. From a distance I looked to see if I could see anyone that had been involved in my previous screening attempt.. Tim and John were both no where to be seen so I got in line and went through the metal detectors without an issue.
I don’t know if this is a new TSA policy for dealing with people who actually invoke the Constitution or if John thought Officer Warren was going to prevent me from re-entering the line. I also wouldn’t recommend trying this if you cannot afford to miss your flight as I’m guessing this is not standard procedure.
(Names have been changed. I don’t want to get anyone fired for actually trying to protect my rights under the Constitution.)