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

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24 Responses

  1. Doug says:

    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 says:

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

  3. Patrick says:

    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 says:

    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 says:

    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 says:

    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 says:

    "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 says:

    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 says:

    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 says:

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

  11. Scott Jacobs says:

    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 says:

    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 says:

    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. Terry says:

    “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.

  15. brettrix says:

    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

  16. nrasmuss says:

    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?

  17. Rich says:

    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.

  18. Mad Kaugh says:

    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.

  19. Mad Kaugh says:

    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.

  20. Marie says:

    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.

  21. Upper1 says:

    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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