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.
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?
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.
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?
On the bright side, isn't the 9th the most frequently overturned court?
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.
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.
couldn't revocation of consent merely be said to constitute, in some instances, a reasonable basis for a limited search?
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.
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.
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.
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.
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."
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?
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.
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.
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.
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.
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.
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.
/thread
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.
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.
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.