Rendon v. Transportation Security Admin., 04-4299.
| Citation | 424 F.3d 475 |
| Decision Date | 22 September 2005 |
| Docket Number | No. 04-4299.,04-4299. |
| Parties | Michael J. RENDON, Petitioner, v. TRANSPORTATION SECURITY ADMINISTRATION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Michael J. Rendon, Solon, Ohio, for Petitioner. Joshua Waldman, Thomas M. Bondy, United States Department of Justice, Washington, D.C., for Respondent.
Before: KENNEDY, COOK, and GRIFFIN, Circuit Judges.
Petitioner Michael Rendon appeals from the Transportation Security Administration Decision Maker's order upholding the Administrative Law Judge's decision finding that Petitioner had interfered with an airport screener in the performance of his screening duties in violation of 49 C.F.R. § 1540.109. This regulation prohibits any person from interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties. Petitioner argues that this regulation, as applied, violated his First Amendment right to freedom of speech. Petitioner further asserts that the statute is both overbroad and unconstitutionally vague.
On July 27, 2002, Michael Rendon went to Cleveland Hopkins International Airport to board a scheduled flight. Rendon presented himself for screening at the security checkpoint, entered a walk-through metal detector, and set off the alarm. The screener responsible for screening those who passed through the metal detector that Rendon went through, Richard Pindroh, asked Rendon to step-aside and wait for the screener operating the hand-wand to come over and hand-wand him. Rendon then informed Pindroh that he believed it was his watch that caused the metal detector to go off. Rendon took his watch off and went to walk back through the metal detector. Pindroh put his arm up to stop Rendon from walking back through the metal detector and informed him that, once he went through the metal detector, he could not go back through, but rather must wait to be hand-wanded. Rendon, who was anxious to catch his plane, which was leaving shortly, suggested that this was "bullshit." He then asked Pindroh "is this your rule or is this the rule of the airport," referring to the rule prohibiting him from going back through the metal detector. Pindroh informed Rendon that it was a rule developed by the security company he worked for and the airport. As Rendon waited to be hand-wanded he became, understandably, more anxious about catching his flight, but also more belligerent toward the screener, Pindroh. For instance, Rendon admits exclaiming, while Pindroh attempted to continue screening those walking through the metal detector, "shit, man, can't you get someone over here." The government introduced three witnesses who all testified that Rendon loudly exclaimed, after being informed that he could not walk back through the metal-detector and while he was waiting to be hand-wanded, that "this was fucking bullshit." Pindroh replied, "Mr. Rendon you do not have to use profanity towards me." Rendon then told Pindroh that if profanity bothered him, he was in the wrong line of work and that he should consider living in a bubble. Moreover, testimony was introduced that Rendon loudly replied to Pindroh that he had a First Amendment right to say what he wanted. To deal with Rendon's escalating loud and belligerent conduct, Pindrow had to stop his screening line and call over his supervisor. When Pindroh's supervisor arrived, Pindroh informed him that Rendon was being uncooperative, unruly, and using loud profanities. Rendon admits having taken offense to this characterization of his conduct. Rendon testified that in response to Pindroh's comment, in the attempt to argue the point, he loudly exclaimed that all he said was "shit." At this point, the police officer on duty at the screening area came over to the scene and removed Rendon from the screening area.
On July 18, 2003, TSA filed a Notice of Proposed Civil Penalty proposing to assess Rendon a $700 civil penalty for violation of 49 C.F.R. § 1540.109. A hearing was held before an ALJ, who found that Rendon had violated the regulation by interfering with an airport screener in the performance of his screening duties. This decision was upheld by the TSA Decision Maker. Rendon petitioned for review.
Petitioner Rendon argues that 49 C.F.R. § 1540.109, which prohibits interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties, is, as applied, a content-based regulation in violation of his First Amendment right to freedom of speech. In arguing that this regulation is a content-based regulation as applied to his conduct, he first notes that passengers are entitled to ask screeners good-faith questions regarding the screening process. 67 Fed.Reg. 8340, 8344 (Feb. 22, 2002). He asserts that a passenger who asks a good-faith question would interfere with a screener in the performance of his duties since the screener would need to divert his attention to the passenger in order to address the question. He further asserts that a passenger who asks a good-faith question while using profanities would similarly interfere with a screener in the performance of his duties, since a screener would also need to divert his attention to address this passenger's question. However, he concludes, since the passenger who asks a good-faith question without using profanities would not be subject to the regulation's civil penalty, while a passenger who asks a good-faith question while using profanities would be subject to the civil penalty, then, in such a case, the passenger who uses profanities is being punished on the basis of the content of his speech (i.e., his use of profanities).
This reasoning is flawed for a number of reasons. First, a passenger who asks a good-faith question to a screener could not validly be found to have interfered with the screener in the performance of his duties, even though a screener may need to divert his attention to the passenger to address the passenger's question. Not only, as a matter of construction of the word "interfere", would we find that a good-faith question could not be deemed to have interfered with a screener, but also the regulation's preamble specifically acknowledges that such questions are permissible. 67 Fed.Reg. 8340, 8344 (). Furthermore, the asking of a good-faith question while using profanities would also not by itself be sufficient for a finding that a screener has been interfered with in the performance of his duties. Similarly, a passenger who grumbles, even if the grumbling includes profanities, would not be found to have interfered with a screener in the performance of his duties. Indeed, Pindroh, the screener in this case, testified that he frequently hears passengers grumbling in line about how long the screening process is going to take and whether the screeners can hurry up the process, and notes that such grumbling is just normal talk from the customers.
Petitioner's conduct in this case, however, cannot be characterized as simply asking a good-faith question while using profanities or as grumbling about not being allowed to walk back through the metal detector or the delay in being hand-wanded. Rather, Petitioner interfered with the screener in the performance of his duties by actively engaging the screener with loud and belligerent conduct, and, after being asked not to use profanities, by exclaiming that the screener should be in a different line of work, that he should live in a bubble, and that it was a free country in which he could say what he pleased. Due to the escalating loud and belligerent nature of Petitioner's conduct directed at the screener, the screener needed to shut down his line and call over his supervisor. Thus, Petitioner's conduct interfered with the screener's duty to both thoroughly screen passengers and to do so in an efficient manner.
Since 49 C.F.R. § 1540.109's civil penalty was...
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