By Hon. Robert J. Lunn
The Daily Record Newswire
When they took the Fourth Amendment, I was silent because I don’t deal drugs.
When they took the Sixth Amendment, I kept quiet because I know I’m innocent.
When they took the Second Amendment, I said nothing because I don’t own a gun.
Now they’ve come for the First Amendment, and I can’t say anything at all.
— Tim Freeman
Last Sunday, I began my day by driving over to the Eastside YMCA and jumping on an unsuspecting treadmill for a morning workout. It groaned. I groaned.
But interestingly some things — other than my waist measurements — never change. For example, I remain amazed that cars endlessly circle the parking lot searching for the closest parking space to the building only to walk inside and walk or jog three miles.
But who am I to judge?
Well, maybe I am in fact that person since judging was a significant part of my professional career before leaving the bench at the end of 2008. I walked into the lobby and was greeted by a sign that read: “Thanksgiving is over so get to work.” So here I am — back to work — writing a column that comments on events of our time that stir public interest.
This week deals with the shifting acronym known as the TSA. Of course everyone recognizes it as standing for “Transportation Security Administration,” an agency of the Department of Homeland Security.
But it wasn’t always known as that. I mean for years I always understood TSA to stand for a tax sheltered annuity open to certain public employees such as teachers.
My wife, Paula was a teacher for 30 years with the City School District before retiring in 2008. We used to review her TSA every year to make sure she was invested in the proper balance of funds to maximize her retirement income. Every week city schools withdrew a sum of money from her paycheck, pre-tax, and deposited it in the designated account. We watched it slowly grow tax-free in the TSA account until 2008 when the recession began simultaneously with her retirement as a teacher.
Okay, so the government co-opted the acronym after 9/11 and began spreading their TSA agents throughout our airports. In the name of security it was necessary to remove anything metallic from our pockets and all of us learned how to remove belts, shoes, key chains, necklaces and laptops while trying not to lose the boarding pass.
Incidentally, did anyone ever study what, if any, ill effects are suffered by holding a boarding pass in the mouth while balancing on one foot trying to reassemble oneself on the other side of the security check?
And just why exactly does a laptop get removed from its case and then receive its own ride in a separate plastic bin? Aren’t those x-ray machines designed to see through a solid object?
But we are all well conditioned not to question authority, particularly where it might result in additional delay and even possible fines.
This past week witnessed another shift in the acronym. TSA apparently now stands for “Touching Someone Aggressively.” Well, not necessarily if you opt to go through the full body scan — in that case you can bypass a full pat down by a TSA agent in favor of an intense high definition x-ray of your entire body.
Now this clearly raises an interesting question: If they have this advanced technology for your body why does my stupid laptop still have to be removed from its case before passing through the x-ray machine?
But the “pat down” and aggressive search as well as the full-body treatment undoubtedly raises some significant legal and constitutional issues. Now admittedly it’s been a few years since my second year law school torts class but wasn’t a battery defined as an uninvited, non-consensual physical touching? And isn’t there a threshold Fourth Amendment argument to be made in response to this type of warrantless search? And just what is the purpose for the storage of scanned images? Recall that the Fourth Amendment provides that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Clearly there is no warrant and likely no probable cause to support the issuance of a warrant. Equally clear to me is there is no search incident to a lawful arrest and likewise, no reasonable suspicion of criminal activity afoot to support a detention and reasonable intrusion by a warrantless search.
The Transportation Security Administration is arguably subjecting thousands of innocent Americans to unreasonable searches and detentions that violate the Constitution. Do not be shocked to see this enhanced procedure set aside by a federal appellate court or ultimately by the U.S Supreme Court if the procedure is not first substantially modified.
Of course all of this will be rendered academic if the courts adopt the reasoning of my wife, Paula: “[T]hey can do pretty much anything they want to me by way of a search and scan as long as I don’t board the plane with a terrorist carrying an explosive.”
But Paula, I still have no answer to the question about my laptop and the need to remove it from its case. You and I both know that this new equipment should be able to handle that simple task.
And no, I won’t let you board and takeoff while I continue to argue with the TSA officials.
The Hon. Robert J. Lunn served for 14 years (1995 to 2008) on the New York State Supreme Court, his last three as an associate justice of the Appellate Division of the Second and Fourth Departments. He is a partner at Trevett, Cristo, Salzer and Andolina. Lunn is the contributing author to three publications from West Publishing, the most recent being The Companion Handbook for Pattern Jury Instructions. He can be reached at rlunn@ Trevettlaw.com.
