Does a woman subjected to an unjustified body cavity search by a Transportation Security Administration (TSA) agent have a means by which to assert her rights in court? Today, the Institute for Justice (IJ) filed an amicus brief in a case that aims to ensure that such victims of abusive searches have a remedy under a statute called the Federal Tort Claims Act (FTCA) when their rights are violated by federal officers.  

In 2019, Michele Leuthauser was flying out of Las Vegas. As she walked through the TSA line, she was informed she would need to go to a private room for additional screening. Leuthauser describes the “groin search” that ensued as a graphic invasion of her most intimate areas, wholly without justification. Leuthauser contacted the airport police about what had happened but was informed that TSA was outside of their jurisdiction. 

Seeking justice in court, Leuthauser sued the officer who conducted the groin search and her employer, the United States of America. She filed a claim against the government under the FTCA and sought to recover against the TSA agent through what is known as a Bivens claim, named after the 1971 Supreme Court case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. A federal court dismissed both claims, leaving Leuthauser with no remedy in court. 

“Far too often, individuals have rights under American law but no remedies in American courts,” said IJ Attorney Patrick Jaicomo. “This case is about ensuring that victims of abuse by federal officials, like TSA agents, can enforce their rights.” 

Leuthauser is appealing the district court’s decision to the 9th U.S. Circuit Court of Appeals, asking that court to allow her claim to proceed under the FTCA. 

“Ms. Leuthauser deserves to have her case heard on its merits and not simply thrown out because of a labyrinth of court-created immunities that is nearly impossible to escape,” said IJ Attorney Anya Bidwell. 

IJ’s amicus brief points out that Congress was so determined to provide relief to victims of federal searches and seizures that it twice—in 1974 and then again in 1988—amended the FTCA to ensure that claims were available against federal officers like TSA agents, who “execute searches.” IJ’s brief also highlights how the district court’s ruling, denying Leuthauser any remedy at all, reveals the rights-without-remedies regime that exists today in the United States, especially when federal officers are accused of wrongdoing. 

“This case isn’t just about TSA agents. It’s about the basic principle that when a federal agent violates a person’s rights, there must be a way to hold them accountable,” said IJ Attorney Jaba Tsitsuashvili. 

As part of its Project on Immunity and Accountability, IJ has challenged various immunity doctrines, including qualified immunity and federal immunity. These doctrines prevent federal agents from being held accountable for egregious misconduct. In Byrd v. Lamb, a Department of Homeland Security agent was captured on video threatening to shoot Kevin Byrd in the head and pulling the trigger of a loaded gun, which thankfully jammed. Kevin did nothing wrong. Mohamud v. Weyker involves a teenage girl in Minnesota named Hamdi Mohamud, who was framed by a police officer and arrested for crimes she did not commit. Both cases are pending before the United States Supreme Court. 

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