The Fourth Amendment and Airports (2016)

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18 as an entity is responsible under § 1983.”174 Section 1983 allows a plaintiff to obtain relief from the entity, including compensatory damages and injunctive and declaratory relief; attorneys’ fees are also available under a related section (subject to certain require- ments). It permits punitive damages claims, but the Supreme Court has determined that the government entity itself is not subject to punitive damages claims due to laws that protect public funds.175 Section 1983 also allows a plaintiff to sue state or local government employees in their individual capacities for violating Fourth Amendment rights. The individual employee will be immune from the fil- ing of this lawsuit (not just damages) if he or she is entitled to “qualified immunity,” and as such, the courts must determine immunity issues at the begin- ning of a case.176 Qualified immunity protects employ- ees who are “performing discretionary functions…. insofar as their conduct does not violate clearly estab- lished statutory or constitutional rights of which a reasonable person would have known.”177 The courts thus consider the “‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.”178 [T]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.179 Private persons or entities can also be subject to suit and liable under Section 1983. The Court asks “first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege hav- ing its source in state authority, and second, whether the private party charged with the deprivation could be described in all fairness as a state actor.”180 The Court has noted that a “state actor” analysis is “often a factbound inquiry,” and it may consider factors such as “the extent to which the actor relies on gov- ernmental assistance and benefits, whether the actor is performing a traditional governmental function, and whether the injury caused is aggravated in a unique way by the incidents of governmental author- ity.”181 A private person or entity that deprives a per- son of rights as a state actor is subject to all damages claims available under Section 1983, and the courts generally do not recognize any qualified immunity for state actor defendants.182 Plaintiffs can pursue some constitutional viola- tions against individual federal agents under a Bivens action. Under this action, a court must deter- mine “whether the agent is amenable to suit, and whether a damages remedy is available for a par- ticular constitutional violation absent authorization by Congress.”183 The courts first determine whether the agent has qualified immunity, with that analysis being identical to such an analysis under Section 1983.184 The Supreme Court has already determined that there is an implied cause of action for damages against federal officers alleged to have violated Fourth Amendment rights, and thus a damages remedy is available.185 To date, however, the Court has not recognized such a cause of action against a private entity that is alleged to violate Fourth Amendment rights when acting “under color of fed- eral law.”186 In general, Bivens and Section 1983 actions are complex lawsuits. They provide financial remedies for a Fourth Amendment violation, however, address concerns for accountability, and promote compliance with the Fourth Amendment. II. EXPECTATIONS OF PRIVACY AT AIRPORTS The context of a government intrusion is generally the starting point for any type of Fourth Amendment 174 Id. at 694. 175 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (determining that local government is not subject to punitive damages but may be liable for compensatory damages); 42 U.S.C. § 1988. 176 See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (determining that if discovery fails to uncover evidence sufficient to create a genuine issue as to whether a defen- dant in fact committed the acts, qualified immunity is an entitlement not to stand trial). 177 Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal quotation marks removed) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 178 Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). 179 Id. at 614–615 (quoting Creighton, 483 U.S. at 640). 180 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620 (1991) (citations omitted) (determining that a private litigant was a state actor). 181 Id. at 621–622 (citations omitted). 182 See Richardson v. McKnight, 521 U.S. 399, 413 (1997) (determining that a private firm providing prison guards was “systematically organized to assume a major lengthy administrative task (managing an institution) with lim- ited direct supervision by the government” and undertook that task “for profit and potentially in competition with other firms,” and this context did not warrant any immu- nity from suit under Section 1983). 183 Hui v. Castaneda, 559 U.S. 799, 807 (2010) (consider- ing the nature of a Bivens claim in relation to the Federal Tort Claims Act). 184 Wilson v. Layne, 526 U.S. 603, 609 (1999) (consider- ing qualified immunity under a Bivens claim). 185 See Bivens v. Six Unknown Named Agents of Fed- eral Bureau of Narcotics, 403 U.S. 388, 397 (1971). 186 Correctional Services Corp. v. Malesko, 534 U.S. 61, 71–72 (2001) (not extending Bivens to a federal contractor).

19 analysis because whether considering law enforce- ment actions, administrative inspection actions, or otherwise, the courts must first determine which pri- vacy expectations society accepts as reasonable in a given context. As further discussed in the following section, the courts routinely identify airports as a context where individual privacy expectations are diminished and analyze Fourth Amendment issues in that light. The Supreme Court has confirmed that airports are such a context. For example, in Florida v. Rodriguez, the Court determined that an officer had lawfully approached passengers because they were “approached in a major international airport where, due in part to extensive antihijacking surveillance and equipment, reasonable privacy expectations are of significantly lesser magnitude.”187 As discussed supra in Section I.B, the Supreme Court has established that courts must evaluate the context of a government action by taking several fac- tors into account. First, the courts determine whether an individual made actual efforts to secure privacy. Then they examine whether society accepts the indi- vidual’s expectations of privacy in that context as reasonable, taking into account the “baseline” prop- erties that the Fourth Amendment identifies as things that are subject to such expectations. Under the first of these factors, the courts con- sider whether an individual has made actual efforts to secure privacy. At an airport, however, many fac- tors indicate that individuals make actual efforts to permit observation of their persons and every object that they carry with them.188 Travelers actively and voluntarily prepare for screening processes. They pack their bags by placing liquids in appropriate small containers, leaving bags unlocked, and edu- cate themselves on which items are prohibited beyond the screening checkpoint. They prepare for technology scans of their persons by removing metallic objects such as belts with buckles, keys, and coins, as well as removing sweaters and shoes, and sometimes they submit to a physical pat-down. They present their identification for verification, and many submit identifying information in advance to a federal program that examines their identities before they arrive at the airport. Short of bodily intrusions, travelers come to the airport prepared to permit a thorough inspection of their persons and property by government screen- ing officials, not to maintain privacy. Employees and contractors work subject to similar requirements when they are entering secure areas, and they par- ticipate in established screening measures while performing their jobs. Thus, people typically do not make efforts to secure most privacy interests at an airport and instead make actual efforts to facilitate government intrusions. As discussed supra in Section I.B, if a person does attempt to secure something as private, under Supreme Court precedent the courts then consider whether society is prepared to accept the individual’s expectations of privacy in that context as reasonable. The courts first consider the “baseline” properties identified in the Fourth Amendment, and an airport itself is not one of those properties— a person, house, paper, or effect historically used to secure individual privacy. These baseline properties listed in the amendment do not support the notion that individu- als should be able to use an airport facility itself to secure against a government intrusion. Iindividuals voluntarily bring themselves and their property into an airport, however, subjecting them to its context, and thus the courts must deter- mine to what extent society accepts as reasonable any individual privacy expectations for those mat- ters. An array of factors overwhelmingly demon- strate that society is not prepared to accept most individual expectations of privacy as reasonable in the context of airport security screening programs and in many other airport contexts as well. At the outset, many laws give public notice that an airport is subject to extensive security requirements and that the public cannot use the facility without com- pliance.189 Among them, the U.S. Congress passed the Aviation Transportation Security Act of 2001 (Public Law 107-71) (ATSA), which created the TSA and requires a variety of airport security mea- sures.190 The public is aware that individuals may be cited by TSA for violating these many laws and that the airport police are present to take law enforce- ment action if necessary.191 Travelers and others receive notice of airport security requirements not just from the law, but from the environment itself. For example, the government publishes an express list of items that are prohibited for travelers.192 Airport proprietors typically post signs reminding travelers and others of these prohib- ited items. Proprietors also play frequent messages over public address systems reminding all present at 187 Driverless vehicles are classified as NHTSA Level 4–Full Self-Driving Automation 188 Information concerning airport travel requirements, such as those noted in this section, may be found at the TSA’s Web site, at airport Web sites and locations, and as otherwise noted in this section. 189 For example, see the court’s discussion of statutes and procedures authorizing some screening procedures contained in Ruskai v. Pistole, 775 F.3d 61 (1st Cir. 2014). 190 For example, see 49 U.S.C. § 44901 (requiring a variety of airport screening measures). 191 See 49 U.S.C. § 114 (the TSA’s civil penalty authority). 192 TSA maintains a list of all prohibited items for trav- elers on its Web site and provides other information.

20 the airport to be alert to potentially suspicious con- duct and to leave no bags unattended. Information on TSA’s screening procedures for travelers is widely available on Web sites, from airlines, from TSA per- sonnel at the airport, and from posted signage and even videos at the airport. The security screening process is also clearly visible before a traveler ever approaches the screening checkpoint, and it forms a barrier between public areas and areas of the airport that have access to aircraft. The airport police main- tain a visible presence at the screening checkpoint and in all airport locations. People are also aware that government officials will scrutinize their identi- ties prior to granting access to secure areas, whether through the federal watch list (“no-fly” list), by ask- ing for identification at checkpoints or through fed- eral programs, or by requiring criminal history background checks for employees and contractors.193 In addition, each airport is subject to a federally mandated and approved security plan under which the proprietor implements additional security mea- sures. Pursuant to that plan, the proprietor restricts access to aircraft areas and other secure areas using a variety of physical, technological, and human meth- ods in a manner tailored to the airport.194 Persons present at the airport are aware that these plans require extensive video surveillance in all airport locations. People are also aware that there are addi- tional security measures at airports that are confi- dential, and federal laws make the public aware that many procedures may constitute “sensitive security information” that is only disclosed on a need-to-know basis.195 Federal law makes clear that security proce- dures are comprehensive and can address all types of aircraft areas, security technologies, airport construc- tion, tenant activities, cargo, and access by people and vehicles.196 Employees and contractors receive train- ing on the security requirements that apply to them and must comply with those procedures as a condi- tion of working at the airport. Not only are people aware of a broad spectrum of intrusive government actions at an airport, they are also present at the airport voluntarily. The courts recognize that people choose to place themselves in an airport environment by flying and can avoid air travel.197 The courts also recognize that an individu- al’s consent is not relevant to the administrative inspections conducted at airports. For example, the Ninth Circuit determined: [W]here an airport screening search is otherwise reason- able and conducted pursuant to statutory authority…all that is required is the passenger’s election to attempt entry into the secured area of an airport. Under current TSA reg- ulations and procedures, that election occurs when a pro- spective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine.198 The Supreme Court has noted some of the com- pelling safety concerns present in an airport context that justify the need for these intrusive government practices. The Court cited an airport context as one “where the risk to public safety is substantial and real.”199 It noted that the government conducts “searches in airports and government buildings, where the need for such measures to ensure public safety can be particularly acute.”200 It has also expressed approval for lower courts that uphold air- port search measures, because “the risk is the jeop- ardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blow- ing up of a large airplane.”201 The Supreme Court’s conclusions also find sup- port in analogous contexts where urgent needs for security and maintaining order have been found to dramatically reduce expectations of individual pri- vacy in a government facility. For example, the Court has considered a prison environment, which like an airport is subject to extreme needs for safety and security, orderly operations, effective surveillance, and the prevention of prohibited items from enter- ing the environment.202 In that context, the Court found that privacy interests were incompatible in part because “administrators are to take all neces- sary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visi- tors.”203 In this case, the Court was satisfied that “society would insist that the prisoner’s expectation 193 49 U.S.C. §§ 114(h)(3), 44903(j)(2), 44936. 194 See 49 U.S.C. § 44903; 49 C.F.R. pt. 1542. 195 See 49 U.S.C. § 114(r); 49 C.F.R. § 1520.5. 196 See 49 U.S.C. § 44903, 49 U.S.C. ch. 449. 197 See Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 665 n.3 (1989). 198 United States v. Aukai, 497 F.3d 955, 961 (9th Cir. 2007) (citations omitted) (determining consent is not required for a proper airport administrative search). 199 See Chandler v. Miller, 520 U.S. 305, 323 (1997) (com- menting on the airport context in dicta). 200 City of Indianapolis v. Edmond, 531 U.S. 32, 33 (2000) (using airport searches as an example of a valid administrative search). 201 Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 665 n.3 (1989) (quoting United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) (using airport searches as a lengthy example of a proper administrative search because the possible harm there is substantial and the need to prevent its occurrence justifies measures that advance the government’s goals). 202 See Hudson v. Palmer, 468 U.S. 517, 527–528 (1984) (determining that Fourth Amendment privacy rights are “fundamentally incompatible” with close and continual surveillance of inmates in their cells to ensure security and order). 203 Id. at 526.