Tobey v. Napolitano, Civil Action No. 3:11CV154–HEH.

• Decision Date: 30 August 2011
• Docket Number: Civil Action No. 3:11CV154–HEH.
• Citation: 808 F.Supp.2d 830
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Aaron TOBEY, Plaintiff, v. Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security, U.S. Department of Homeland Security, Washington, D.C. 20528, et al., Defendants.

808 F.Supp.2d 830

Aaron TOBEY, Plaintiff,

v.Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security, U.S. Department of Homeland Security, Washington, D.C. 20528, et al., Defendants.

Civil Action No. 3:11CV154–HEH.

United States District Court, E.D. Virginia,Richmond Division.

Aug. 30, 2011.

James Jeffrey Knicely, Knicely & Associates, Alan C. Veronick, Anand Agneshwar, Arnold & Porter LLP, New York, NY, Robert Luther, III, Knicely & Associates, P.C., Williamsburg, VA, for Plaintiff.

Debra Jean Prillaman, Robin Perrin Meier, United States Attorney's Office, Belinda Duke Jones, Henry Irving Willett, III, Paul Wilbur Jacobs, II, Christian & Barton LLP, Richmond, VA, Carlotta P. Wells, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

(Granting Commission Defendants' Motions to Dismiss; Granting in Part and Denying in Part Federal Defendants' Motion to Dismiss)

HENRY E. HUDSON, District Judge.

This civil rights action arises out of events which allegedly occurred at the Richmond International Airport (“RIC”) on December 30, 2010. It is presently before the Court on two separate motions to dismiss, one by Janet Napolitano (“Napolitano”), John Pistole (“Pistole”), Rebecca Smith (“Smith”), and Terri Jones (“Jones”) ¹ (collectively, “the Federal Defendants”), the other by the Capital Region Airport Commission (“the Commission”) and several RIC Police officers in their official capacities. The Court heard oral argument on August 10, 2011. For the reasons stated below, the Commission Defendants' Motion will be granted, and the Federal Defendants' Motion will be granted in part and denied in part. Accordingly, Counts One through Three will be dismissed as to all defendants in their official capacities, and Counts One and Three will be dismissed as to Smith and Jones individually. With respect to Plaintiff's Count Two claim against Smith and Jones individually, however, the Federal Defendants' Motion to Dismiss will be denied.

I.

In the wake of the 9/11 terrorist attacks, Congress created the Transportation Security Administration (“TSA”) to maintain “security in all modes of transportation” in the United States, including civil aviation. 49 U.S.C. § 114(d). The TSA is statutorily required to “provide for the screening of all passengers and property ... that will be carried aboard a passenger aircraft....” 49 U.S.C. § 44901(a). For flights originating in the United States, that screening must take place prior to boarding. Id. Persons who interfere with the screening process may be subject to civil penalties. See 49 C.F.R. § 1503.401.

As part of its air passenger screening process, the TSA requires passengers to pass through a magnetometer (i.e., a metal detector). The TSA also allegedly has a policy of randomly selecting passengers for “enhanced secondary screening.” ² (Pl.'s First Am. Compl. ¶ 15.) Under the enhanced secondary screening policy, passengers allegedly have a choice of submitting to either (a) an Advanced Imaging Technology (“AIT”) scan, “which produces a highly detailed picture of the passenger's unclothed body,” or (b) “a full-body pat-down search.” ( Id. at ¶ 16.) In Plaintiff Aaron Tobey (“Plaintiff”)'s view, these enhanced screening procedures violate the Fourth Amendment's prohibition against unreasonable searches and seizures.

On December 30, 2010, around 2:00 p.m., Plaintiff allegedly entered the security checkpoint area at RIC as a ticketed airline passenger bound for his grandfather's funeral in Wisconsin. “In anticipation of the possibility that he would be randomly selected for enhanced secondary screening,” Plaintiff had written on his chest in black marker the text of the Fourth Amendment. ( Id. at ¶ 26.) Plaintiff allegedly sought “to communicate his objection to the enhanced secondary screening implemented by TSA.” ( Id.)

“To avoid the possibility of causing delay for his fellow passengers,” Plaintiff allegedly “waited for the number of people in line to diminish before entering the [security screening] area.” ( Id. at ¶ 27.) Once inside, he submitted his boarding pass and identification to the pre-screening agent and proceeded through the conveyor belt area. Plaintiff alleges that he placed his belt, shoes, and other personal items on the conveyor belt as directed. Then, “[u]pon information and belief,” Plaintiff alleges that TSO Smith directed Plaintiff away from the primary screening apparatus and toward an AIT unit. ( Id. at ¶ 30.)

Before entering the AIT unit, Plaintiff allegedly removed his t-shirt and sweatpants to reveal the message written on his chest. Smith allegedly advised Plaintiff “that removal of clothing was not necessary, but Plaintiff responded that he wished to do so to express his view that enhanced screening procedures were not constitutional.” ( Id. at ¶ 32.) Plaintiff allegedly stood in front of the AIT scanner in his running shorts and displayed the message on his chest, at which point Smith radioed for assistance. On information and belief, Plaintiff alleges that supervisory TSO Jones and/or another supervisory TSO ordered Smith to direct Plaintiff to remain in front of the AIT unit. Jones then allegedly sought intervention by the RIC Police.

Shortly thereafter, RIC Police officers Calvin Vann (“Vann”) and Anthony Mason (“Mason”) allegedly approached Plaintiff from behind. At the direction of Mason, Vann allegedly seized and handcuffed Plaintiff and “forced him through the AIT unit,” and over to a side area. ( Id. at ¶ 35.) Once there, Plaintiff was allegedly placed under arrest. Plaintiff alleges that Mason and Smith or other TSA agents collected Plaintiff's belongings, and Vann took Plaintiff to RIC's on-site police station.

At the police station, Plaintiff was allegedly questioned by Vann; Mason; RIC police officer Jeffrey Kandler (“Kandler”); and the RIC Chief of Police, Quentin Trice (“Trice”). Kandler allegedly questioned Plaintiff about his age, residency, and education; accused him of being inconsiderate of other travelers; and advised “that the police would make sure” he had “a permanent criminal record as a result of his actions.” ( Id. at ¶ 41.) Kandler then allegedly advised Plaintiff that he would be transported to the Henrico County Jail to meet with a local magistrate.³

Plaintiff alleges that one of the defendant officers searched Plaintiff's belongings, and Vann conducted a second search shortly thereafter. According to Plaintiff, Vann discarded items such as Plaintiff's toothbrush, deodorant, writing utensils, and the t-shirt that Plaintiff had removed prior to the AIT screening. Vann allegedly asserted that these items would be considered contraband at the Henrico County Jail.

Approximately ten minutes later, Kandler allegedly informed Plaintiff that he had spoken with the magistrate, and Plaintiff would not need to be transported to jail. Rather, he asserted, Plaintiff would be given a court date for arraignment in the near future. One of the defendant officers removed Plaintiff's handcuffs and directed him to put his clothing back on.⁴ Vann then delivered to Plaintiff a summons charging disorderly conduct in a public place, in violation of Virginia Code Section 18.2–415. Vann allegedly explained to Plaintiff the summons, the nature of the crime, and the potential consequences if Plaintiff failed to appear in court. Plaintiff signed the summons and was allegedly ordered to repack his belongings. Plaintiff alleges that none of the officers retrieved or returned the items that Vann had previously discarded.

One of the defendant officers allegedly informed Plaintiff that he could leave for his flight after speaking with an Air Marshal from the Federal Air Marshal's Joint Terrorism Task Force. An Air Marshal allegedly questioned Plaintiff about his “intentions and goals” (Pl.'s First Am. Compl. ¶ 61), as well as his involvement with terrorist organizations, and discussed with Plaintiff the need for enhanced screening procedures. Thereafter, the defendant officers released Plaintiff into the RIC terminal. Plaintiff passed through the security screening and boarded his flight without incident. Plaintiff alleges that the detention lasted approximately one and one-half hours in total. Plaintiff's disorderly conduct charge was subsequently nolle prossed on motion of the Henrico County Commonwealth's Attorney.

Based on the foregoing, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Smith, Jones, Vann, Mason, Kandler, and Trice have been sued individually and in their official capacities. Plaintiff has also named as defendants the Commission, a governmental authority created under Virginia law and granted authority to operate, manage, and regulate RIC; Victor Williams (“Williams”), the Director of Public Safety and Operations at RIC; Napolitano, the Secretary of the Department of Homeland Security; and Pistole, the Administrator of the TSA. Williams, Napolitano, and Pistole have been sued only in their official capacities.

In Counts One through Three, Plaintiff alleges that Smith, Jones, Vann, Mason, Kandler, and Trice violated Plaintiff's rights under the First, Fourth, and Fifth and Fourteenth Amendments. Plaintiff specifically alleges that these officers (1) caused Plaintiff's arrest without probable cause; (2) engaged in impermissible viewpoint discrimination against Plaintiff's silent, nonviolent protest against the TSA's screening policies; and (3) exceeded their statutory and regulatory authority when they “treated Plaintiff differently from other air travelers subject to the same screening process.” (Pl.'s First Am. Compl. ¶ 111.) Plaintiff further alleges that Napolitano, Pistole, the Commission, and Williams are liable for the same in their official capacities because they failed and/or were deliberately indifferent in their respective...