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United States News
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Title: Official Retaliation OK, Police-State’s Kangaroo Court Rules
Source: Lew Rockwell
URL Source: https://www.lewrockwell.com/lrc-blo ... e-states-kangaroo-court-rules/
Published: Aug 23, 2017
Author: Becky Akers
Post Date: 2017-08-24 05:51:06 by Deckard
Keywords: None
Views: 675
Comments: 1

You may remember a passenger and runner of marathons named Roger Vanderklok: the TSA “detained” him in 2013 because of “a heart-monitoring watch” in his luggage. While questioning Mr. K, the thugs’ supervisor waxed “confrontational,” whereupon his victim asked to file a complaint. In the finest tradition of a police-state, the supervisor “retaliated” by calling the cops on Mr. K—and, for good measure, lied about him, too, claiming Mr. K threatened to bomb his flight. That bought the professional, never-before-arrested Mr. K a night in the hoosegow.

When the case went to court, the supervisor’s allegations didn’t match the surveillance tapes, so the judge dismissed the charges. Mr. K then sued the TSA, as well he should. And now we have the decision on his attempt to protect the rest of us from these corrupt bullies. As US News and World Report summarizes it, “U.S. Appeals Court Rules for TSA Screener Who Had Run-In With Flier.”

No surprise there. I can’t recall a single case in which Amerika’s pathetic excuse for a judiciary has ever favored “fliers,” justice, or even decency. But the judges’ excuse is more than the usual slap in the face to us serfs: “The Third Circuit said for the first time Tuesday that Transportation Security Administration airport screeners cannot be sued for allegedly retaliating against travelers who exercise free speech” because their “role in public safety is ‘so significant’ [oh, you betcha: 95% failure rate in finding contraband] that the judiciary should not create a remedy involving TSA agents who may violate the constitutional rights of passengers.”

There you have it, folks: a bald admission from Our Rulers that their damnable War on Terror trumps all our “constitutional rights,” even that of “free speech.”

I’ve seen atrocity upon atrocity while covering the TSA. But this time, I’m speechless.

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#1. To: Deckard (#0)

There you have it, folks: a bald admission from Our Rulers that their damnable War on Terror trumps all our “constitutional rights,” even that of “free speech.”

What a steaming pile of bullshit.

Read what the Court opinion actually said.

Discipline by the government should be swift and certain, when its employees’ actions warrant it. But, when it comes to creating judicial remedies, there must be a balancing of priorities, and “[t]he proper balance is one for the Congress, not the Judiciary, to undertake.” Ziglar, 137 S. Ct. at 1863.

http://www2.ca3.uscourts.gov/opinarch/163422p.pdf

Vanderklok v Kieser, 16-3422 (3rd Cir, 22 Aug 2017)

At 8:

Following his acquittal, Vanderklok brought suit in the District Court against Kieser, the United States, the TSA, the City of Philadelphia, and various police officers. In his Amended Complaint, Vanderklok asserted nine claims:

(1) unconstitutional search and seizure in violation of the Fourth Amendment, under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics;3

(2) unconstitutional infringement of the freedom of speech in violation of the First Amendment, under § 1983 and Bivens;

(3) false arrest, under Pennsylvania law and the Federal Tort Claims Act (“FTCA”);

(4) false imprisonment, under Pennsylvania law and the FTCA;

(5) assault and battery, under Pennsylvania law and the FTCA;

(6) constitutional deprivations by the City of Philadelphia, under Monell v. Department of Social Services;4

(7) malicious prosecution in violation of the Fourth Amendment, under Pennsylvania law, the FTCA, and § 1983;

(8) retaliatory prosecution in violation

__________

3 403 U.S. 388, 392 (1971) (holding that a remedy is available for a federal agent’s violation of a citizen’s Fourth Amendment right to be free from warrantless searches and seizures).

4 436 U.S. 658, 694 (1978) (holding that a municipality is subject to suit under 42 U.S.C. § 1983 when a constitutional deprivation is the result of a policy or custom instituted by its policymakers).

At 5:

Because Kieser sought and was denied summary judgment on the merits of Vanderklok’s Fourth Amendment claim, rather than on the basis of qualified immunity, that claim cannot be reviewed on interlocutory appeal. By contrast, Kieser’s appeal of the denial of qualified immunity as to Vanderklok’s First Amendment claim is properly before us. As it turns out, however, a preliminary and dispositive question must be answered first: whether a First Amendment claim against a TSA employee for retaliatory prosecution even exists in the context of airport security screenings. Because we conclude that it does not, we will vacate the District Court’s order, without reaching the issue of qualified immunity, and direct the District Court to enter judgment for Kieser on the First Amendment claim.

At 13-14:

In sum, our jurisdiction at this point extends only to the issue of whether Kieser ought to be immune from suit for Vanderklok’s First Amendment retaliation claim, and, preliminary to that, whether such a claim exists at all in the specific circumstances of this case.

At 16:

Today we hold that Bivens does not afford a remedy against airport security screeners who allegedly retaliate against a traveler who exercises First Amendment rights.

At 24-26:

Here, the District Court concluded that Kieser was not an investigative or law enforcement agent because he was not an “officer” of the United States under that definition. Vanderklok, 142 F. Supp. 3d at 361. In reaching that [*25]conclusion, the District Court first noted that, in other sections of the FTCA, Congress chose to use the term “federal employee” rather than “officer of the United States.” Id. It therefore sought to determine when a TSA employee becomes an officer of the United States. The Court found its answer in the Aviation and Transportation Security Act, which created the TSA and designates as “law enforcement personnel” only those TSA agents who are “(1) authorized to carry and use firearms; (2) vested with the degree of the police power …; and (3) identifiable by appropriate indicia of authority.” 49 U.S.C. § 44903(a)(1)-(3). Based on that, the District Court concluded that Kieser was a “federal employee[], who conduct[s] airport security screening;” not a “law enforcement officer[], who perform[s] various law enforcement functions.”14 Id. Therefore, it held that the United States retained its sovereign immunity and that the state law claims had to be dismissed for lack of jurisdiction. Vanderklok, 142 F. Supp. 3d at 362. The District Court’s decision about the applicability of the law enforcement proviso is not on appeal at this time, Vanderklok, 2015 WL 12844282, at *2 (denying certification of an interlocutory appeal under Rule 54(b)), but the existence of that proviso is nevertheless important because it assures that, in cases where a TSA agent has been entrusted with the greater responsibilities of an investigative or law enforcement officer, a tort action will lie.

_____

14 As further support for that conclusion, the District Court relied on our statement in Matsko v. United States, that “employees of administrative agencies, no matter what investigative conduct they are involved in, do not come within the [law enforcement] exception.” 372 F.3d 556, 560 (3d Cir. 2004).

[*26] In addition to the remedy that exists by virtue of the law enforcement proviso, we note that the United States would not be permitted to substitute itself as a defendant in the first place in cases where a government employee acted outside the scope of his duties. 28 U.S.C. § 2679(d). In determining whether an employee was acting within or outside of the scope of his duties, we look to the law of the state in which the action took place. CNA v. United States, 535 F.3d 132, 146 (3d Cir. 2008), as amended (Sept. 29, 2008). In this case, that is Pennsylvania law, which incorporates the Second Restatement of Agency’s definition of conduct within the scope of employment. Id. “According to the Restatement, ‘conduct is within the scope of employment if, but only if: (a) it is the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master[.]’” Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting Restatement (Second) Agency § 228) (alterations in Brumfield).

At 28:

In summary, then, there can be a remedy against the United States in cases where the employee had the responsibility of an officer, and there can be a state law remedy against the individual when the offending TSA employee acted outside the scope of employment. Based on the District Court’s orders as they now stand, however, there are no alternative judicial remedies available to Vanderklok, because the District Court concluded that Kieser was not an investigative or law enforcement officer and there was no challenge as to whether Kieser acted within the scope of his employment.

At 38:

Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context. The dangers associated with aircraft security are real and of high consequence. Cf. Chappell v. Wallace, 462 U.S. 296, 304 (1983) (refusing to imply a Bivens action where “the need for unhesitating and decisive action … would be undermined by a judicially created remedy”). We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior. Discipline by the government should be swift and certain, when its employees’ actions warrant it. But, when it comes to creating judicial remedies, there must be a balancing of priorities, and “[t]he proper balance is one for the Congress, not the Judiciary, to undertake.” Ziglar, 137 S. Ct. at 1863. Otherwise, in this context, there is reason to “fear that a general Bivens cure would be worse than the disease.” Wilkie, 551. U.S. at 561. Accordingly, in the specific context of airport security screeners, special factors preclude us from implying a Bivens cause of action for First Amendment retaliation.

nolu chan  posted on  2017-08-25   0:23:46 ET  Reply   Trace   Private Reply  


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