Maryland also trying to curb TSA with legislation

by Lisa Simeone on February 16, 2012

Maryland is joining the list of states trying to rein in the TSA. Since the feds don’t seem interested, and people are still being abused at airports every day, there’s little recourse left but personal lawsuits and state legislation.

Of course, the efficacy of such legislation is in doubt.

In Maryland’s case, Delegate Glenn Glass has proposed HB 1111. It prohibits:

a specified public servant, while acting under color of the public servant’s office or employment, from intentionally subjecting another person to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that the public servant knows is unlawful, intentionally denying or impeding another person in the exercise or enjoyment of a right, privilege, power, or immunity, knowing that the conduct of the public servant is unlawful, or intentionally subjecting another person to sexual harassment; etc.

The legislation defines sexual harassment in this case as:

intentionally, knowingly, or recklessly touching the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or causing physical contact with the other person when the public servant knows or should reasonably believe that the other person will regard the contact as offensive or provocative.

A TSA agent violating this law could be charged with a misedemeanor, punishable by no more than a year in prison, or a fine of no more than $4,000, or both.

Now, here’s the kicker, and it’s a stumbling block common to this kind of legislation everywhere: the TSA can get around it by claiming, as it always has, that it’s doing what’s called an “administrative search.” Basically, courts have ruled that the 4th Amendment doesn’t exist for administrative searches.

Sort of like, you’re being searched but you’re not really being searched. A dystopian dream!

Administrative search doctrine goes all the way back to 1973:

The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

Here’s how the Tenth Amendment Center explains it:

The proposed legislation does allow for a defense, “if the defendant performed the search in accordance and consistent with an explicit and applicable grant of federal or state statutory authority that is consistent with both the Maryland Constitution and the United States Constitution.”

In other words, even if this legislation passes, the first time it’s challenged in court, it’ll go down. Administrative search doctrine will be invoked.

Still, it can’t be a bad thing in the long run. Proposed legislation like this at least raises awareness, which is always necessary in a battle, especially since so many people around the country still don’t know — or don’t want to believe — what’s going on in American airports, and which is spreading to all other types of transportation as well.

It also provides a baseline for further, more refined legislation down the line.

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