Tobey v. Jones
| Decision Date | 25 January 2013 |
| Docket Number | Nos. 11–2230,11–2276.,s. 11–2230 |
| Parties | Aaron TOBEY, Plaintiff–Appellee, v. Terri JONES, individually and in her official capacity as a Supervisory Transportation Security Officer with the Transportation Security Administration of the Department of Homeland Security; Rebecca Smith, individually and in her official capacity as a Transportation Security Officer with the Transportation Security Administration of the Department of Homeland Security, Defendants–Appellants, and Quentin Trice, individually and in his official capacity as Chief of Police of the Richmond International Airport Police; Calvin Vann, individually and in his capacity as an officer of the Richmond International Airport Police; Anthony Mason, individually and in his official capacity as an officer of the Richmond International Airport Police; Jeffrey Kandler, individually and in his official capacity as an officer of the Richmond International Airport Police; Janet Napolitano, in her official capacity as Secretary of Homeland Security; John S. Pistole, in his official capacity as Administrator, Transportation Security Administration; Capital Region Airport Commission; Victor Williams, in his official capacity as Director of Public Safety and Operations, Richmond International Airport Police; Jane Doe, individually and in her official capacity as a TSA Checkpoint Manager with the Transportation Security Administration of the Department of Homeland Security, Defendants. Aaron Tobey, Plaintiff–Appellee, v. Jane Doe, individually and in her official capacity as a TSA Checkpoint Manager with the Transportation Security Administration of the Department of Homeland Security, Defendants–Appellants, and Quentin Trice, individually and in his official capacity as Chief of Police of the Richmond International Airport Police; Calvin Vann, individually and in his capacity as an officer of the Richmond International Airport Police; Anthony Mason, individually and in his official capacity as an officer of the Richmond International Airport Police; Jeffrey Kandler, individually and in his official capacity as an officer of the Richmond International Airport Police; Rebecca Smith, individually and in her official capacity as a Transportation Security Officer with the Transportation Security Administration of the Department of Homeland Security; Janet Napolitano in her official capacity as Secretary of Homeland Security; John S. Pistole, in his official capacity as Administrator, Transportation Security Administration; Capital Region Airport Commission; Victor Williams, in his official capacity as Director of Public Safety and Operations, Richmond International Airport Police; Terri Jones, individually and in her official capacity as a Supervisory Transportation Security Officer with the Transportation Security Administration of the Department of Homeland Security, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED:August E. Flentje, United States Department of Justice, Washington, D.C., for Appellants. Anand Agneshwar, Arnold & Porter, LLP, New York, New York, for Appellee. ON BRIEF: Tony West, Assistant Attorney General, Douglas N. Letter, United States Department of Justice, Washington, D.C.; Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellants.
James J. Knicely, Robert Luther III, Knicely & Associates, P.C., Williamsburg, Virginia; Alan C. Veronick, Arnold & Porter, LLP, New York, New York; John W. Whitehead, Douglas R. McKusick, The Rutherford Institute, Charlottesville, Virginia, for Appellee.
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge GREGORY wrote the majority opinion, in which Judge DUNCAN joined. Judge WILKINSON wrote a dissenting opinion.
Aaron Tobey alleges he was retaliated against for exercising his First Amendment rights when at Richmond International Airport (RIC), Transportation Security Administration (TSA) agents and RIC police seized and arrested him for displaying the text of the Fourth Amendment to the United States Constitution on his chest. Seeking to vindicate his rights, Mr. Tobey brought an action in the United States District Court for the Eastern District of Virginia against the RIC police and TSA agents, alleging violations of his First, Fourth, and Fourteenth Amendment Equal Protection Clause rights. The TSA agents moved to dismiss the claims, asserting qualified immunity. The district judge sustained the motion as to the Fourth and Fourteenth Amendment claims, but denied the motion for the First Amendment claim. The TSA agents appeal the denial to this Court and are the only parties to this appeal. Because we find the facts as alleged by Mr. Tobey plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights, we affirm the district court's decision.
From the outset we must underscore that this case is before us on appeal from denial of a Fed.R.Civ.P. 12(b)(6) motion to dismiss. Therefore, the facts set forth are from the vantage point of Mr. Tobey, with all reasonable inferences drawn in his favor. See Jenkins v. McKeithen, 395 U.S. 411, 421–22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992).
Following the September 11, 2001 terrorist attacks, Congress created the Transportation Security Administration. TSA is tasked with maintaining the security of commercial air travel. TSA agents screen and search airline passengers at airports, randomly selecting certain passengers for enhanced secondary screening. Under the then-current enhanced secondary screening policies, passengers had a choice of submitting to either an Advanced Imaging Technology (AIT) scan or a full-body pat down. The purpose of TSA's procedures was limited to finding “explosives, incendiaries, weapons or other items and screening to ensure that an individual's identity is appropriately verified and checked against government watch lists.” TSA Management Directive No. 100.4 (Sept. 1, 2009).
On December 30, 2010, Aaron Tobey was scheduled to fly from Richmond to Wisconsin to attend his grandfather's funeral. Mr. Tobey waited until there was a short line at the TSA screening checkpoint and then commenced the screening process by presenting his boarding pass and identification to the pre-screening agent. Mr. Tobey proceeded to the conveyor belt area and placed his belt, shoes, sweatshirt, and other carry-on items on the conveyor. Mr. Tobey was then diverted by Appellant–Agent Smith from the standard metal detector used as the primary screening apparatus to the AIT scanning unit for enhanced screening.
In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA's enhanced screening procedures were unconstitutional.
At this point, Agent Smith radioed for assistance. As commanded by her supervisor, Appellant–Agent Jones, Agent Smith ordered Mr. Tobey to remain in front of the AIT unit. Agent Jones and unknown Appellant–Agent Doe then asked RIC police for assistance. At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him. In fact, Mr. Tobey alleges that he “remained quiet, composed, polite, cooperative and complied with the requests of agents and officers.”
RIC police officers Vann and Mason arrived on the scene and immediately handcuffed and arrested Mr. Tobey. None of the TSA agents informed RIC police of what occurred at the screening station, nor did RIC police ask. Officer Vann escorted Mr. Tobey to a side area and informed him he was under arrest for creating a public disturbance. Agent Doe searched Mr. Tobey's belongings, removing unidentified items. Officer Mason then collected Mr. Tobey's belongings with assistance from Agents Smith and Doe.
Mr. Tobey was then taken to the RIC police station where Officer Vann and other officers questioned Mr. Tobey and threatened him with various criminal sanctions. Mr. Tobey was eventually charged with disorderly conduct in a public place. SeeVa.Code Ann. § 18.2–415. The officers later released Mr. Tobey after consulting with an Air Marshal from the Federal Air Marshal's Joint Terrorism Task Force. In total, Mr. Tobey was held for over an hour. Mr. Tobey boarded the plane without further incident. The Commonwealth Attorney for Henrico County subsequently dropped the disorderly conduct charge.
On March 11, 2011, Mr. Tobey sued Agents Jones, Smith, and the RIC police officers under 42 U.S.C. § 1983 (state agents) and Bivens v. Six Unknown Named Agents for the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (federal agents), for depriving him of his (1) Fourth and Fourteenth Amendment Rights (Count One); (2) First and Fourteenth Amendment Rights (Count Two); and (3) Fourteenth Amendment Equal Protection Rights (Count Three).1
On June 27, 2011, Appellants Jones and Smith moved to dismiss all three claims. On August 30, 2011, the district court granted the motion with respects to Counts One and Three. In dismissing the Fourth Amendment claim, the court explained that: Tobey's “bizarre” behavior gave rise to further police inquiry; “[g]iven the heightened security interest at airport security checkpoints ... it was eminently reasonable for Smith and Jones to seek assistance from the RIC police.” Tobey v. Napolitano, 808 F.Supp.2d 830, 850 (E.D.Va.2011).
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