Stripping naked during airport security screening—not allowed

|The Volokh Conspiracy |

From In re Brennan (Carraway, Deputy Administrator), filed Sept. 18, 2014 but just published on Westlaw:

Mr. John Brennan (Respondent) appeals the Initial Decision of the Administrative Law Judge (ALJ) issued on April 2, 2014 holding that Respondent violated 49 C.F.R. §1540.109 ["No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter"] and assessing a civil penalty in the amount of $500.00. For the reasons set forth below, the appeal is denied and the Initial Decision is upheld….

Summary of Initial Decision. According to the findings of fact listed in the Initial Decision, Respondent was a ticketed passenger on Alaska Airlines departing from Portland International Airport on or about April 17, 2012. At the security checkpoint, Respondent opted to undergo a pat-down instead of Advanced Imaging Technology (AIT) screening. Respondent refused an opportunity to have the pat-down conducted in a private area.

A Transportation Security Officer (TSO) conducted the pat-down and then conducted Explosive Trace Detection (ETD) screening on the gloves he was wearing while performing the pat-down of Respondent. The ETD is used to detect traces of explosives. The ETD alarmed indicating the presence of explosives. The TSO notified a supervisory TSO (STSO) who informed Respondent additional screening must be conducted to resolve the ETD alarm.

Respondent replied he would show the STSO he was not hiding anything and removed all of this clothing and dropped them on the floor. Respondent testified that he disrobed to prove he was not carrying a bomb, although he later testified that his actions were a protest. It is TSA's policy not to touch bare skin during either a pat-down or ETD screening. TSA personnel directed Respondent to put his clothes back on at least three times and Respondent refused.

TSA personnel notified the airport police. The STSO closed the entire checkpoint and directed TSOs to move bins in an attempt to block the public view of Respondent. The airport police arrived and twice requested Respondent to get dressed. Respondent refused. Respondent was arrested and removed from the checkpoint. Screening to resolve the ETD alarm was not conducted. The checkpoint was closed for approximately three minutes while Respondent was naked.

A criminal charge of indecent exposure was brought against Respondent in Oregon state court and Respondent was found not guilty. Respondent was fired from his job as a result of the incident.

TSA filed a Complaint against Respondent alleging that he interfered with screening personnel in the performance of their duties in violation of 49 C.F.R. §1540.109 and assessed a civil penalty in the amount of $1,000.00….

Respondent's Appeal. In his appeal, Respondent contests the [Administrative Law Judge's] determination that his actions interfered with the screening process. Respondent argues that his nudity made the TSA personnel uncomfortable, but did not interfere with the screening process.

Respondent states that bare skin is not a hindrance to screening and actually reduces the effort needed to conduct screening. Respondent claims that once his clothes were dropped on the floor, they could have been inspected for explosives. Respondent explains that his nudity was not illegal and that the TSA personnel were more concerned about protecting the public from nudity than on completing screening.

In its reply brief, TSA points out that the findings of fact described in the Initial Decision were not contested by Respondent. TSA argues that Respondent's statements that bare skin facilitates screening are not supported by evidence in the record. TSA explains that the testimony of the TSOs demonstrated that they could not complete screening once Respondent removed his clothing and dropped them on the floor….

TSA notes that the definition of screening was supported by relevant case law as well as the explanation of the regulation contained in the regulatory history. TSA argues that Respondent's statements regarding the legality of nudity in Oregon have no relevance, since Respondent was charged with interference with screening….

I find that the findings of fact [that Respondent interfered with the screening process] are supported by a preponderance of the evidence…. Respondent argues that the presence of bare skin is not a hindrance to screening and even reduces the burden of screening. That argument is not supported by the record. The testimony at the hearing revealed that TSA policy does not permit screening on bare skin. Based on the testimony of the TSOs, the ALJ found that disrobing and dropping his clothes on the floor presented such a distraction that the TSOs could not complete screening to resolve the ETD signal of explosives in an efficient manner.

In addition, there is nothing in the record to support Respondent's claim that the clothes he dropped on the floor were available for further screening. Respondent did not present his clothing for screening as accessible property. Respondent removed his clothing and dropped them on the floor after the ETD alarm and then refused to get dressed after repeated requests to do so by screening personnel and law enforcement officers. Such behavior is not indicative of cooperation or compliance with the screening process.

In fact, the ALJ found that Respondent's "preparations indicate this was a planned event. Even if he decided to strip only after the ETD indicated the presence of nitrates, it was still an intentional act." The ALJ concluded that the violation was deliberate and even if Respondent considered it to be a protest, the facts demonstrate that his actions interfered with the screening process. I concur with the ALJ's assessment.

Respondent also argues that TSA was concerned with his nudity, which he states is legal in Oregon, and not on carrying out its screening responsibilities. I agree with TSA that Respondent's arguments regarding the legality of the nudity are not relevant. As the ALJ points out, in [Rendon v. TSA], 424 F.3d 475 (6th Cir. 2005), the Court found that loud, belligerent conduct interfered with the screening process. In that case, the conduct was legal, but the Court found that it was not protected speech and did in fact disrupt with the screening process.

Further, there is no evidence to support Respondent's contention that the reason the checkpoint was closed was to protect the public from his nudity. I agree with the ALJ's assessment of the record that Respondent's conduct created such a distraction that TSOs had to be diverted from their screening duties. In other words, TSOs were not able to conduct screening in an efficient manner on other passengers present at the checkpoint….

Based on the foregoing, Respondent's appeal is denied and the Initial Decision is upheld….