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"It's Such A Fine Line Between Stupid And Clever"

Nov 16, 2010
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Politics & Current Events

And the Transportation Security Administration is doubling down on the Stupid.

From commenter Scott Jacobs:  The TSA has followed up on its threats against John Tyner, the man behind the "Don't Touch My Junk" video that brought a long-simmering public resentment against the TSA to a boil.  Now he's threatened with prosecution.

The Transportation Security Administration has opened an investigation targeting John Tyner, the Oceanside man who left Lindbergh Field under duress on Saturday morning after refusing to undertake a full body scan.

Tyner recorded the half-hour long encounter on his cell phone and later posted it to his personal blog, along with an extensive account of the incident. The blog went viral, attracting hundreds of thousands of readers and thousands of comments.

Michael J. Aguilar, chief of the TSA office in San Diego, called a news conference at the airport Monday afternoon to announce the probe. He said the investigation could lead to prosecution and civil penalties of up to $11,000.

The question of "selective prosecution" is frequently raised by ignorant criminal defendants.  "They prosecuted me for possession of marijuana because I'm an outspoken advocate for legalization.  All the guys at Freddie's Head Shop will tell you so."

But Tyner could make a case of it.  There is absolutely no question that Michael J. Aguilar, the head of the Transportation Security Agency in San Diego, would not know Tyner's name, much less be raising the prospect of a $10,000.00 $11,000.00 fine against Tyner if Tyner's "Don't Touch My Junk" video hadn't gone viral.  Tyner is being threatened for exercising his constitutional right to free speech.

I suggest that you may wish to contact your senator or congressperson.

You may wish to write something like this:

Dear ______:

I was distressed to read that the Transportation Security Administration chief in San Diego, Michael Aguilar, announced during a press conference on Monday that his office was opening an investigation of John Tyner, the man who recorded a video of his refusal to walk through a San Diego airport body scanner, then refusing an intrusive search in which a TSA agent would bring hands into contact with Mr. Tyner's genital areas.  (You may be aware of this video under its popular name, "Don't touch my junk.")

While there is debate about the safety of full body scanners recently deployed at airports as a reaction to the "underwear bomber" and the British bombers who attempted to disguise explosive chemicals as shampoo, is there any debate that law-abiding Americans such as Mr. Tyner, who simply shot a cell phone video of his interaction with TSA agents concerning his unwillingness to endure a search not much different from that undergone by new jail inmates, should not face government investigation and the threat of prosecution for engaging in free speech protected by the First Amendment to the United States Constitution?

I think not.  As an American citizen, and your constituent, I am concerned when government agents abuse their power to threaten citizens for lawful behavior.  If Mister Aguilar is unable to control himself (over a simple embarrassment revealing a problem anyone who flies frequently would complain about), someone with real authority must control him.  Won't you please exercise your authority?  If not by oversight, then by contacting Homeland Security Secretary Napolitano and Attorney General Holder to share these concerns?  I hope that we both agree that, even if Mr. Tyner's words were vulgar, his refusal to submit to the scan and refusal to endure the search were legal.  After all, he did not board the flight; he left the airport instead.  He should not be threatened with prosecution and a fine of $11,000.00 (in Mr. Aguilar's words) for exercising a citizen's right to free speech in a free country.

Mr. Aguilar, who has no authority to prosecute anyone (that is a decision for the Justice Department) seems to be abusing his power to get revenge against a citizen who embarrassed his office.   The threat of prosecution in and of itself can be used to chill free speech.  I hope that you agree with me.  Please contact Secretary Napolitano and Attorney General Holder with our shared concerns about a rogue TSA office and its disregard of the Constitution.

Thank you.

Be sure to let them know, politely, that you're a constituent and you vote.

Last 5 posts by Patrick Non-White

24 Comments
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22 Comments

  1. Doug  •  Nov 16, 2010 @7:47 am

    I already cut and pasted this into an email I sent to my congressmen, Tom Petri. He is usually good about acknowledging my email with something more than a form letter.

  2. CTrees  •  Nov 16, 2010 @8:15 am

    While I appreciate the hat tip… This is actually the first I heard about the investigation being opened.

  3. Patrick  •  Nov 16, 2010 @8:51 am

    Fixed. I still love you CTrees. I just love Scott Jacobs more.

    Not in that TSA way, you understand. It's brotherly love.

  4. Robert  •  Nov 16, 2010 @9:36 am

    From the TSA:

    "According to Aguilar, Tyner is under investigation for leaving the security area without permission. That’s prohibited, among other reasons, to prevent potential terrorists from entering security, gaining information, and leaving."

    Of course, the TSA told him, in error, that he could leave. You don't see the TSA being threatened with lawsuits or prosecution?

    Why can't the TSA let this go and save we, the Taxpayers, money? All they'd have to say is "we regret the misunderstanding with this passenger" and move on.

  5. Ken  •  Nov 16, 2010 @9:36 am

    Great letter Patrick.

    Now comes the part where I get all law-geek.

    At least here in the Ninth Circuit, a defendant has to make a two-pronged showing to establish selective prosecution. "To establish a prima facie case of selective prosecution, a defendant must show both (1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e., discriminatory purpose or intent." United States v. Gutierrez, 990 F.2d 472, 475 (9th Cir.1992). Since the Vietnam-era selective service prosecutions, courts have described this as a "heavy" burden. If a defendant meets it, then the burden shifts to the government to prove that it was not motivated by an impermissible factor.

    The challenge for Mr. Tyner will be to show that the government is aware of, but not prosecuting, similarly situated persons. Hopefully the wide publicity Mr. Tyner's story has received will lead others to come forward and tell their story. Are there others out there who, confronted with the choice between the scan and sexual assault, have said "screw this" and tried to walk out? I suspect there are. If there are not any yet, I suspect there will be after the Thanksgiving weekend. If Mr. Tyner can demonstrate that there were other incidents in which people behaved similarly to him, and the government was aware of them but did not prosecute, then he may be able to satisfy the first prong. The sequence of events — and the TSA's bumptious choice to hold a press conference announcing an investigation — goes a long way towards establishing the second prong.

    However, as someone who defended selective prosecution motions as a prosecutor and filed them as a defense attorney, let me assure you: they are terribly difficult to win. Judges deny them without much thought. The only way to succeed on one is through luck, by drawing a judge who actually holds the government to its duties. Such judges are few and far between, even on the relatively superior federal bench.

    Also, the government may render the motion futile. Let me assure you from personal experience: there are forces within the Department of Justice who are perfectly capable of initiating sham prosecutions of other travelers who object to being scanned or sexually assaulted, even if those events would normally never lead to prosecution, solely to defeat a selective prosecution motion in a high-profile case.

  6. Patrick  •  Nov 16, 2010 @9:39 am

    All of that would be well and wonderful if if weren't for that fact that Tyner is really under investigation for embarrassing the TSA and Michael Aguilar, a vindictive little thug who's been elevated beyond his natural station, which is shining the jackboots of San Diego mall cops Robert.

    But you and I both know that's the real reason for this.

  7. Scott Jacobs  •  Nov 16, 2010 @9:39 am

    "Are there others out there who, confronted with the choice between the scan and sexual assault, have said “screw this” and tried to walk out?"

    I can't find it, but there was the story of the pilot in I think Texas who refused the scanner, refused the pat down, and left the airport…

    Was maybe 2 weeks ago at most? Heck, I might have heard about it here…

  8. Scott Jacobs  •  Nov 16, 2010 @9:40 am

    And am I the only one who thinks this guy's possible fine got upped because he dared to commit "Contempt of Wannabe Cop"?

  9. Ken  •  Nov 16, 2010 @9:43 am

    All of that would be well and wonderful if if weren’t for that fact that Tyner is really under investigation for embarrassing the TSA and Michael Aguilar, a vindictive little thug who’s been elevated beyond his natural station, which is shining the jackboots of San Diego mall cops Robert.

    But you and I both know that’s the real reason for this.

    Of course I am aware of that. I'm not a moron.

    But it is not beyond the realm of possibility that the TSA will convince the U.S. Attorney's Office in San Diego to file some sort of bullshit charges. It would be a hugely thuggish and foolish thing to do — but security theater may demand it.

    I hope Tyner is getting good advice from somebody on how to navigate a federal criminal investigation. I'd represent him pro bono.

  10. Patrick  •  Nov 16, 2010 @9:46 am

    That comment was directed to Robert, Ken, not to you. Check the timestamps and, for that matter, the quote.

  11. Scott Jacobs  •  Nov 16, 2010 @9:52 am

    Ken, I think all the folks at PopeHat should contact Tyner, and offer to represent the man.

    Because you folks tearing into the TSA would be one of the most awesome things ever.

  12. Ken  •  Nov 16, 2010 @10:11 am

    That comment was directed to Robert, Ken, not to you. Check the timestamps and, for that matter, the quote.

    I wish I could believe you, Patrick. But your history of wantonly hurting my feelings and toying with my emotions speaks for itself.

    Ken, I think all the folks at PopeHat should contact Tyner, and offer to represent the man.

    Because you folks tearing into the TSA would be one of the most awesome things ever.

    He can email me at ken at popehat dot com. If he wants a pro bono lawyer who used to be a fed and has been defending federal investigations for ten years, and has multiple partners with even more experience, he's got one.

  13. Robert  •  Nov 16, 2010 @11:10 am

    Well, I'm not a moron either. My question was rhetorical.

    But does the TSA really need to prosecute, fine, and bring a civil suit against this matter? Are they that sure of themselves? Regrettably, the answer is "yes."

    I fly about 4 times/month. I decline the scanners, but don't object to the grope. Lately they ask me the reason for my decline. I stopped saying "radiation" (because then they give me a pseudo-science lecture), and now say "I want to have my possessions in my view at all times. According to the TSA's own website, over 200 TSA employees have been _prosecuted_ for theft, as of February 2008." (yes, I say all that).

    And, in truth, I am very worried that the TSA will steal from me. It's a serious problem.

  14. Scott Jacobs  •  Nov 16, 2010 @11:19 am

    I'm going commando next time I fly.

  15. Terry  •  Nov 16, 2010 @12:32 pm

    “Are there others out there who, confronted with the choice between the scan and sexual assault, have said “screw this” and tried to walk out?”

    Idaho State Rep. Phil Hart opted out of both this Spring/Summer of 2010.
    He declined the body scan and pat-down, and rented a car to drive from Boise to Coeur d'Alene, Idaho.

  16. brettrix  •  Nov 16, 2010 @2:13 pm

    it's really funny that the TSA website states that a person who refuses screening will be denied entry and unable to fly in BOLD but it does not state that you will be fined or harassed for sticking up for your 1st and 4th amendment rights… privacy and unreasonable search.

    i can't contact aguialar or even find a # to the tsa office in SD… sad, when i called the tsa contact center they didn't have a number for the tsa office – just the airport main number…

    http://www.tsa.gov/travelers/airtravel/assistant/editorial_1049.shtm

  17. nrasmuss  •  Nov 16, 2010 @6:16 pm

    I presume that the Thug-SA assumes that merely by waiving around a big stick they will convince Mr. Tyner (and by extension, the rest of us), to duck for cover and 'follow the rules.' On the other hand, I've wondered if they've given even a moment's thought to the disaster they'll have on their hands if they ever put this in front of a jury, and get roundly smacked down?

  18. Rich  •  Nov 16, 2010 @8:45 pm

    He will be given no choice by his own defense, the prosecution, and the judge to plea to a lesser charge,so that the nightmare all of them are profiting from, will end.

  19. Mad Kaugh  •  Nov 17, 2010 @9:13 am

    Re: Michael Aguilar doubling down on the stupid – It's about defending his job turf, and it's his first recourse. Intimidation might work, it works with most of the sheeple. Best case, the problem caves in with little effort, or possibly is tied up defending itself. Worst case, TSA looks a little stupider, but the sheeple have a short memory. In any case, Michael Aguilar will not have to pay. If it blows up, he will find a scape goat among the crew who were on-site. His career is not on the line.

  20. Mad Kaugh  •  Nov 17, 2010 @9:23 am

    Question: It seems to me that "can't leave the area" equates to arrest. Is that not the case? If it is the case, are they not required to state charges? Flip side, if TSA is not arresting, isn't what they are doing unlawful detention?

    The fact that they do it, and on a wide scale, does not make it legit.

  21. Marie  •  Nov 17, 2010 @11:19 am

    I know the answer already ("he's TSA" and "logic is futile"), but how can Aguilar say with a straight face that "Tyner is under investigation for leaving the security area WITHOUT PERMISSION." when Tyner was in fact ESCORTED from the secure area by a LEO, AFTER the TSA guy said to "escort him from the airport". How is that "leaving the security area without permission"?

    Trying to follow TSA 'thought' processes is painful.

  22. Upper1  •  Nov 20, 2010 @9:54 am

    Although I am vehemently against the TSA's new scanning procedures for Fourth Amendment reasons, I just wanted to let you know that the issue you seem to address in your form letter (Whether refusal is covered by the 1st Amendment) has already been ruled on in federal court, and is not relevant to this discussion. Courts have ruled that it is not the speech that matters, but the refusal itself. While free expression is covered, actions are not covered by the First Amendment's free speech protections.

    Once a passenger has agreed to get searched (by entering the TSA security area) consent cannot be revoked. The Court in US v. Aukai reasoned thusly:

    "[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by "electing not to fly" on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks."

    United States v. Aukai, 497 F.3d 955 (9th Cir. 2007).

    I think Tyner would lose any constitutional argument should he bring it in a court.

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