Airport Searches:

The Ninth Circuit makes clear, in a 15-judge en banc decision, that airport searches are constitutionally justified as "special needs" searches because they are generally reasonable and aimed at more than just normal law enforcement, and not because of some (fictional) implied consent on the part of passengers. This has legal consequences:

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.” Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent, either ongoing consent or irrevocable implied consent.

The constitutionality of an airport screening search, however, does not depend on consent, and requiring 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.

Thanks to How Appealing for the pointer.

George Lyon (mail):
So if consent or implied consent is not the basis of the search, why is airport screening not a general search?
8.10.2007 5:28pm
William Spieler (mail) (www):
At least the Ninth Circuit is recognizing that this is a search, unlike non-search searches like drug dogs
8.10.2007 5:41pm
Harvey Mosley (mail):
Slightly OT question:

When I am summoned for jury duty, I have to report or I could be sent to jail. When I report for jury duty, I'm forced to go through a metal detector.

Since all of this is against my will, why is this search not considered unreasonable?
8.10.2007 5:42pm
Eugene Volokh (www):
George Lyon: Because it's a permissible "special needs" search; there's a whole body of Fourth Amendment doctrine about that, which the opinion discusses briefly. If you're curious about it, check out the cases on which the opinion relies; they should all be available at findlaw.com.
8.10.2007 5:49pm
vukdog:
I hope this question isn't too far off base. We read Korematsu in Con Law class and I don't know if that case is still good law. In any event, I've always wondered, were Japanese Americans or others at that time subject to any "special needs" searches under the rubric of "a general regulatory scheme in furtherance of an administrative purpose"?
8.10.2007 6:03pm
Mr. X (www):
Prof. Volokh,
Can you explain how a system of searches effectuated by an entire cabinet level agency and through which millions of people go through every day fits under "special needs" doctrine?

This decision combined with Gilmore seems to stand for the proposition that the Fourth Amendment does not apply to anyone who wants to fly.
8.10.2007 6:14pm
George Lyon (mail):
Eugene: I don't deny the court has created the "special needs" exception to allow searches it thinks are reasonable, but that does not in my view transform them from being general searches which the fourth amendment was intended to prevent. No doubt the British would have said they had a special need to search the houses of colonists for weapons and seditionist propaganda. Given that airliners can be turned into weapons of mass destruction by a suicidal fanatic, I would uphold the search in question as reasonable, too. However, I think we teeter on a very slippery slope when we justify a search by the degree of regulation an activity is subject to. After all under the commerce power as the Court has most recently interpreted it, there is very little anymore other than consensual sexual conduct of adults which is not subject to extensive regulation.
8.10.2007 6:31pm
Gino:
Don't fly. I don't.
8.10.2007 6:48pm
Tinhorn (mail):

...requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world.


Does this mean that things would have have different pre-9/11? (The opinion does not quite say that, but the reference to 9/11 at least implies it.) If 9/11 turned all those searches into "special needs" searches, how do we know which searches (if any) it didn't turn into "special needs" searches?
8.10.2007 6:56pm
abb3w:
Could this also allow for stopping every vehicle that enters or exits an interstate highway, so as to preclude car bombings? Or to stop any pedestrian on any urban street sidewalk for a search against unlicensed weapons, so as to prevent carjackings for use in car bombings? A very slippery slope indeed.

On the bright side, isn't the 9th the most frequently overturned court?
8.10.2007 7:11pm
Gordo:
An eminently sensible decision from a Court that has a reputation for not being very sensible. The concurrence by Judge Graber and two others at the end bears review. I would note that this particular en banc panel did not include Judge Reinhardt - otherwise we might have had a dissenting opinion.
8.10.2007 7:35pm
Gordo:
As for "slippery slopes," that's why we have qualified judges. They tend to throw sand on the slickest parts.
8.10.2007 7:37pm
Guest12345:
This is stupid. If the problem is the possibility that the plan becomes a missile, then the solution is to harden the cockpit, not to secure the cabin and cargo areas.

I have never heard a sane rebuttal to the suggestion that the cockpit of any plane be a completely separate compartment from the passenger cabin with no way to travel between the two.
8.10.2007 7:45pm
Zacharias (mail):
Harvey Mosley--

You don't get how our jury system works here. We permit as jurors only those who have already assented to government invasion of their liberty rights. That's why we put them through the metal detectors and are now thinking about instituting the rubber-glove searches.
8.10.2007 7:50pm
b.:
would "requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search" have made any more sense in a pre-9/11 world?

couldn't revocation of consent merely be said to constitute, in some instances, a reasonable basis for a limited search?
8.10.2007 7:50pm
Just Dropping By (mail):
The constitutionality of an airport screening search, however, does not depend on consent, and requiring 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.

Isn't this effectively an admission by the court that airport searches are not administrative searches for public saftey, but are in fact law enforcement searches for purposes of arresting people? Every sort of administrative search I'm aware of can be permissibly avoided by stopping the relevant activity that gives rise to the right to conduct the search in the first place. If the purpose of the search is "to prevent the carrying of weapons or explosives aboard aircraft," rather than to arrest people, then that goal is accomplished just as much by someone "electing not to fly" as it is by arresting them.
8.10.2007 8:14pm
Fub:
The constitutionality of an airport screening search, however, does not depend on consent, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world.
"Post-9/11" is a long time.
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.
Because everybody knows that terrorist groups who use expendable chumps to blow themselves up would never sacrifice a few to arrest in order to "detect systematic vulnerabilities in airport security".
8.10.2007 8:31pm
r78:
I guess I have to wonder what the point of these searches are, exactly.

The TSA allows people to take lighters on planes. Manyduty free shops (on the "clean" side of the metal detectors) sell vodka which - last time I checked - burns really well.
Just take two or three bottles of vodka into the bathroom with you on the plane, insert wicks/fuses, and you have some handy/dandy 750 ML molotov cocktails.

But I guess everybody feels safer walking through metal detectors without their shoes.
8.10.2007 9:00pm
Dilan Esper (mail) (www):
If I can digress, I HATE "implied consent" doctrines in searches and am quite glad that the law is not based on that doctrine.

It seems to me that there is no stopping point with implied consent. If the goverment can insist on a waiver of Fourth Amendment rights as a condition of getting in an airplane or driving a car, why not First Amendment, or Second Amendment, or Fifth Amendment, or Sixth Amendment, or Eighth Amendment, or Fourteenth Amendment rights?

Courts are correct to uphold these sorts of searches as special needs searches and not to adopt the language of implied consent.

I should add that despite the fact that courts have rejected the implied consent theory, the California DMV continues to lie to California drivers and claim that you ARE implicitly consenting to DWI searches when you sign up for a driver's license. Unfortunately, there's no constitutional provision that bars the government from lying to the public or falsely saying that the law is what it WISHED the law was.
8.10.2007 9:16pm
OrinKerr:
r78,

The regulations are designed to block the use of explosives that wold rip a hole in a plane. I'm not sure what you would buy in the "duty free" shop that would rip a hole in a plane.
8.10.2007 9:26pm
Dave N (mail):
I find it fascinating that a Ninth Circuit en banc panel could unanimously agree that today is Friday, let alone reach consensus on the issue of the scope of administrative searches of airline passengers.

True, Judges Reinhardt, Pregerson, Thomas, and Paez were not on the panel but several panel-members (Judges Schroeder, Gould, Graber, Wardlaw and Hawkins, for example) are all liberal to one degree or another.

I would note that Judge Bea wrote both the three judge panel decision (440 F.3d 1168) and the en banc decision. I would also note that Senior Judge Dorothy Nelson (certainly no conservative) joined Judge Bea's earlier decision (along with Judge Callahan).

Judge Bea's decision makes sense, but I also thought Judge Graber made a good point in her concurrence--these administrative searches are legal regardless of the status of the "War on Terror."
8.10.2007 10:41pm
asarwate (mail) (www):
Of course, there are already flaws which allow would-be terrorists to probe the probability of being screened on a future flight, as in the Carnival Booth approach.
8.10.2007 10:50pm
Toby:
I feel compelled to point out that Ethanol burns at a very low temperature...
8.10.2007 10:58pm
Brian G (mail) (www):
Technically, Korematsu is still good law as there has never been the opportunity to overturn it. I doubt it will ever be upheld if it ever came under review.
8.11.2007 12:31am
MB88:

I have never heard a sane rebuttal to the suggestion that the cockpit of any plane be a completely separate compartment from the passenger cabin with no way to travel between the two.


What if both pilots have heart attacks and die, mid-air? What if one pilot kills the other, and then himself? What if the pilots want coffee?
8.11.2007 1:42am
whit:
"the California DMV continues to lie to California drivers and claim that you ARE implicitly consenting to DWI searches when you sign up for a driver's license"

my understanding is that you can only be administratively punished for refusing these searches (i assume you are referring to breath tests) by a suspension of license for refusal, and there is no CRIMINAL penalty for refusing, thus it "flies" so to speak.

you have every right to refuse the breath test (which is only triggered when there is PC to arrest you for DUI), and the state has the authority to revoke your PRIVILEGE to drive, because it is just that - a PRIVILEGE not a right.

the state says that if you want the PRIVILEGE to drive on a public way - which involves piloting a deadly weapon capable of killing at least as many people as a full auto rifle in capable hands, then that is the tradeoff

the 'right' to drive does not exist, is not even mentioned in the constitution.

you have no more right to drive, than you have the "right" to pilot an airplane. and if you want the PRIVILEGE of doing either, you must consent to certain requirements.
8.11.2007 1:42am
Guest12345:
What if both pilots have heart attacks and die, mid-air? What if one pilot kills the other, and then himself? What if the pilots want coffee?


1) Pilots have physicals to determine their fitness for duty.
2) There is absolutely nothing that can be done to protect the plane from a rogue pilot.
3) Pack a thermos.

And if they need to visit the restroom. Either put a small one in the cockpit or a bucket under their seats.
8.11.2007 1:59am
MB88:
OK, what if both pilots eat some bad sushi immediately before the flight and pass out mid-air? What if they're poisoned before flight?

The risk of something bizarre like that happening is obviously small -- much smaller than the risk of a passenger attacking and gaining control of the plane. But I think it would only take one such incident to swing public opinion pretty firmly against a physically separated cockpit.
8.11.2007 2:37am
NicholasV (mail) (www):
OK, what if both pilots eat some bad sushi immediately before the flight and pass out mid-air? What if they're poisoned before flight?

I thought pilots were prohibited from eating seafood prior to a flight because the chance of getting food poisoning was too high. Maybe I am wrong. This does not invalidate the point - they could both get sick from something else.

I suspect the proper solution will be to have a strong door, plus the capability of the aircraft being controlled from the ground in an emergency. That in itself is a security issue, but it would take care of both sick pilots and help a lot with hijackings if it were possible.
8.11.2007 5:58am
SpenceB:
... if it means anything at all, it should be obvious that the 4th Amendment at least prohibits any 'general' search & seizure authority by the Federal government.

Millions of air travelers & baggage involuntarily stopped and searched by Federal agents every day... is obviously a general search in direct violation of the 4th Amendment.

The final obvious conclusion is that adherence to even the basic 4th Amendment law is now viewed as optional by large proportions of Americans and their government officials.

It is no longer law.
8.11.2007 10:26am
ShelbyC:
"the state says that if you want the PRIVILEGE to drive on a public way..."

Driving on a road I'm compelled to pay for is a right. It's no more a privelege that any other exercise of liberty.
8.11.2007 12:47pm
Enoch:
If both pilots die or are incapacitated, the plane is doomed even if the people in the cabin can access the cockpit. The idea that a flight attendant or a passenger with experience in a Cessna is going to land the plane is pure fantasy.
8.11.2007 1:29pm
Crunchy Frog:
Pilots need to eat, drink, and use the bathroom just like everyone else on the plane. Are you going to duplicate the toilet and kitchen facilities ahead of the secure firewall in order for this to happen?

/thread
8.11.2007 1:59pm
whit:
"Driving on a road I'm compelled to pay for is a right. It's no more a privelege that any other exercise of liberty"

no, it's not.

TRAVELING on the roadway *might* be arguably a right, but engaging in the act of DRIVING is not

it is also not mentioned in the constitution (the RIGHT to drive)

speech, bearing arms, assembly, etc. ARE.

it's really that simple. driving is a privilege NOT a right.

heck, a state could ban the use of cars completely by public citizens on public ways. they could have mass transit only. would that be good policy? probably not. :)

but nobody has a RIGHT to drive a car on a public way.

can you back up your assertion with case law? please show me a case that says that you have the RIGHT to drive.
8.11.2007 6:29pm
SIG357:
Not only is driving not a right, neither is flying. It seems to me that there is no "involuntary" search involved in getting on a plane, since getting on a plane is a voluntary activity.
8.11.2007 8:30pm
Guest12345:
Pilots need to eat, drink, and use the bathroom just like everyone else on the plane. Are you going to duplicate the toilet and kitchen facilities ahead of the secure firewall in order for this to happen?


Pack a lunch. Bring a bottle of water. And yes, you could make some kind of toilet that take up minimal space. There is no need for general purpose facilities of any kind, kitchen or toilet. This is not an apartment or house or motel. It's an airplane.

You could double the salary of all the commercial pilots in the country for a tiny fraction of the money wasted in the theater called the TSA.
8.11.2007 8:49pm
Dilan Esper (mail) (www):
whit:

It is true that under the law, driving is a privilege. (Although I am sick of the DMV telling us that too-- I think that creates a callous atitude among government officials that if they treat us like dirt, that's OK because nobody HAS to drive.)

But that doesn't change the fact that the application for a driver's license IS NOT an implicit "consent" to search. And if you read California driving instruction materials, they falsely claim it is.
8.13.2007 2:56pm