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Media Alerts - Tobey v. Jones et al. - Fourth Circuit
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March 5, 2013
  Tobey v. Jones et al. - Fourth Circuit
Headline: Court Refuses to Dismiss First Amendment Suit for Airport Arrest

Area of Law: Constitutional Law

Issue Presented: Whether First Amendment claims survive a motion to dismiss based on qualified immunity where plaintiff alleges government agents caused his seizure without probable cause in retaliation for nonviolent expression of objection to government policy in an airport.

Brief Summary: Aaron Tobey was arrested at Richmond International Airport after removing his shirt to display the text of the Fourth Amendment. Tobey had written the amendment on his chest to express his objection to TSA screening processes. He removed his shirt when diverted to a full body scanning unit, which he believed to be unconstitutional. Following his arrest, Tobey brought suit against the TSA agents and airport police, alleging violation of his First, Fourth and Fourteenth Amendment rights. The District Court granted the defendants' motions to dismiss the Fourth and Fourteenth Amendment claims. However, the court denied a motion to dismiss Tobey's First Amendment claim. On appeal by the TSA Agents only, the Fourth Circuit affirmed the denial of the motion to dismiss the First Amendment claim. Judge Wilkinson filed a dissenting opinion.

Significance: Fourth Circuit holds that agents who merely caused the arrest of a citizen in an airport may be liable for that arrest on First Amendment grounds.

Extended Summary: In December 2010, twenty-one-year-old Aaron Tobey planned to fly from Richmond International Airport (RIC) to Wisconsin for his grandfather's funeral. At the TSA's screening checkpoint, he was diverted from the primary screening metal detector to an Advanced Imaging Technology (AIT) unit for enhanced screening. In anticipation of enhanced screening, Tobey had written the text of the Fourth Amendment across his chest. At the AIT unit, he began removing his shirt and sweatpants, explaining that he wished to express his belief that AIT screening was unconstitutional. A TSA agent informed Tobey that he did not need to remove his clothes. When Tobey continued to disrobe, TSA agents called the airport police. When they arrived, the police immediately handcuffed and arrested Tobey, informing him that he was being arrested for disturbing the peace. He was detained for over an hour and formally charged with disorderly conduct in a public place.

Tobey sued the TSA agents and arresting officers for violating his First, Fourth, and Fourteenth Amendment rights. The TSA agents moved to dismiss. The District Court dismissed all claims except the First Amendment claim. In part, the District Court based its decision to dismiss the Fourth and Fourteenth Amendment claims on the conclusion that the TSA agents could not be liable for Tobey's arrest. With regard to the First Amendment claim, however, the District Court refused to dismiss the claim that the agents radioing for police assistance violated the First Amendment. The court found that it was unclear whether the agents radioed for help because of the beliefs Tobey expressed or radioed for help for some other reason which might not violate First Amendment rights.

On review, the Fourth Circuit decided that the TSA agents were potentially liable for the actual arrest, not just the call that set it in motion. Turning to the merits, the court asked whether Tobey's complaint adequately set forth a First Amendment violation, and whether the First Amendment right in question was clearly established. To decide the first question -- whether Tobey's claim adequately set forth a First Amendment claim -- the court considered whether Tobey had shown that 1) his speech was protected, 2) the TSA agents' alleged retaliatory action adversely affected that speech, and 3) there was a causal relationship between the speech and the TSA agents' retaliatory action. After holding that Tobey's complaint "most certainly" established the elements of a valid First Amendment claim, the court addressed several arguments made by the TSA agents to show that Tobey's claim was nevertheless not a valid complaint. The Court first rejected the argument that Tobey couldn't bring a valid complaint because the agents' actions were "reasonable" in light of his "bizarre" and "disruptive" behavior. In support of this position, the TSA agents pointed to the decision in International Society for Krishna Consciousness, Inc. v. Lee, which permitted reasonable restrictions on speech in airports. Rejecting the agents' argument, the Fourth Circuit held that bizarre behavior does not support arrest. The court further found that the question of whether Tobey's behavior was disruptive was a question of fact that would need to be determined at trial. The court also rejected the TSA agents' arguments that Tobey could not state a claim because their actions were consistent with a lawful response. The court highlighted that Tobey had not refused to comply with any TSA orders and noted that the government had not cited a single regulation or law which allows arrest for the removal an outer layer of clothing or prohibits display of a peaceful, non-disruptive message of protest.

The court next held that the right the TSA agents allegedly violated was clearly established and so the agents were not protected by qualified immunity. The court reasoned that the principles protecting free discussion of governmental affairs transcend speaking forums and prevent government officials in airports from suppressing speech because they disagree with it. The TSA agents had conceded in oral argument that it would have been unlawful for them to arrest Tobey if the text of the Fourth Amendment had been printed on his shirt rather than written on his chest. According to the court, Tobey's allegations were factually equivalent to that situation.

In dissent, Judge Wilkinson wrote that the First Amendment claim should have been dismissed based on qualified immunity for the TSA agents' actions. Observing that no case law put the TSA agents on notice that they could not respond as they did, Judge Wilkinson found that the defense of qualified immunity was designed to avert not only liability for government officials in such a position but also to protect them against suits like the one brought by Tobey. He emphasized that Tobey's decision to express his beliefs at the airport screening checkpoint made it reasonable for the TSA agents to remove the distraction he was creating.

To read the full opinion please visit:

Panel: Circuit Judges Gregory, Duncan, and Wilkinson.

Argument Date: 10/24/12

Date of Issued Opinion: 01/25/13

Docket Number: No. 11-2230

Decided: Affirmed by published opinion.

Case Alert Author: Philip C. Dales

Counsel: ARGUED: August E. Flentje, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Anand Agneshwar, ARNOLD & PORTER, LLP, New York,New York, for Appellee. ON BRIEF: Tony West, Assistant Attorney General, Douglas N. Letter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Neil H.MacBride, United States Attorney, Alexandria, Virginia, for Appellants. James J. Knicely, Robert Luther III, KNICELY & ASSOCIATES, P.C., Williamsburg, Virginia; Alan C. Veronick, ARNOLD & PORTER, LLP, New York, New York; John W. Whitehead, Douglas R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia, for Appellee.

Author of Opinion: Gregory, J.; Wilkinson, J. (dissenting)

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 03/06/2013 at 12:06 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 03/05/2013 09:01 PM     4th Circuit  

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