We’ve all been there – the intrusive, often humiliating, and always uncomfortable airport security pat-down. Those lucky few who have TSA pre-check have managed on occasion to skip over that part (more on that later). But plenty of non-wheelchair users have to get manually patted down by TSA as well, and in some cases have had experiences so bad that they decided to file lawsuits. Unfortunately, a federal appeals court ruled on July 11 that TSA screeners are immune from claims under a federal law governing assaults, false arrests and other abuses. This ruling could have a major negative impact on wheelchair users flying through US airports.
Reuters news service explained that in a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners were not “investigative or law enforcement officers,” and were therefore shielded from liability under the Federal Tort Claims Act (FTCA). One of the judges said that it was the responsibility of Congress to expand agency liability for abuses and avenues for airline passengers to address grievances. In the meantime, wheelchair users who get handled roughly or inappropriately have no legal recourse other than filing an administrative complaint.
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This situation is made even more severe by the fact that TSA rescinded pre-check program allowances for wheelchair users in January 2018, According to TSA policy, “Passengers with mobility disabilities in TSA Pre✓® lanes can be screened by advanced imaging technology (if available), metal detector, or a pat-down.” More specifically, “Pat-downs are conducted by a TSA officer of the same gender. If you have difficulty standing, you may ask for a chair, or you may be screened while seated in your wheelchair or scooter. Screening involving a sensitive area may be conducted in private with a companion or other individual of your choice. You may request screening in private at any time.” Furthermore, “TSA officers will test wheelchairs and scooters, including any non-removable pouches or fanny packs, for traces of explosives. Removable items will undergo X-ray screening. TSA officers will resolve positive explosives tests using other screening methods, including a pat-down and inspection of your property.”
These pat-downs are a nightmare for everyone, but even more so for wheelchair users, the elderly, and anyone who has a physical disability – especially people with balance issues or medical implants. In April 2017, the TSA rolled out even more invasive pat-down procedures because of a gap in security protocols. Per U.S. News, unlike the previous screening measures, the new protocol enables officers to use the front of their hands, rather than the backs of their hands, to screen passengers if the technology indicates a possible high-security threat. With the new pat-down procedure, officers may also inspect areas such as the buttocks, groin and breasts.
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People who use canes, walkers and rollators, manual and power wheelchairs, and electric scooters have all complained about being handled roughly at different airports across the US, and in some cases even being injured. In June 2018, a video of a 96 year-old woman getting patted down in a wheelchair by TSA went viral. Jeanne Clarkson said she was with her fiance and her mother, Evelyn Lebrier, in May at the Washington Dulles International Airport outside Washington, D.C. The group was returning to Indiana after a trip visiting family. “She has extreme arthritis in her left knee and [TSA screeners] were running their hands up and down and groping it,” Clarkson said. “She was in pain when they were doing it. And she says, ‘I don’t wanna fly again.'”
In May 2016, TSA apologized to Olympic gold medal-winning swimmer Amy Van Dyken-Rouen after she said she was inappropriately touched while going through security at Denver International Airport. “They go around your breasts, they basically go under your butt and they just grab things, not grab, they touch things that are not appropriate and it’s really embarrassing,” the 43-year-old Van Dyken-Rouen wrote in social media. In a rare case, the TSA actually admitted fault. “TSA reviews passenger complaints, and in this case determined that our officers did not follow correct screening protocols when Ms. Amy Van Dyken came through the security checkpoint at Denver International Airport (DEN) this weekend,” according to a TSA statement.
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The problem is that now, because of this court ruling, if a situation like Ms. Lebrier’s or Ms. Van-Dyken-Rouen’s pops up again, the victim’s only recourse is to file an administrative complaint with TSA. The critical decision by the court is establishing that TSA screeners are not law enforcement officers. In fact, many of them now don’t even work for TSA, as more airports are handing security screening over to contractors. Per the court decision, “…line TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers. Instead, they are instructed to carry out administrative searches and contact local law enforcement if they encounter situations requiring action beyond their limited though important responsibilities.”
So how does this affect wheelchair users going through TSA checkpoints at US airports? First, arrive at the airport with plenty of time before your flight to accommodate any security checkpoint hiccups. Second, it’s important to know what the screening procedure will be so it doesn’t catch you by surprise. It will be intrusive, it will be uncomfortable, and it will likely be carried out by TSA employees or contractors who are tired, underpaid, and don’t have much empathy for your particular needs. Third, if you have a problem with a screener or procedure, ask to speak to a supervisor. Keep calm and try not to escalate the situation because history has shown you will end up on the losing end of that fight. Fourth, file a formal complaint with the TSA so you have a record of what happened. Keep in mind you will probably be unable to take photos or video since that’s restricted at TSA checkpoints. And lastly, take to social media. You can’t tag the TSA on Facebook (shocker!), but you can tag the airport and encourage people to share your post. Write a letter to the newspaper where the airport is located, and stick to the facts without emotion or bias.
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The last thing wheelchair users need while traveling is more hassle, and it’s a travesty that a US Court has seen fit to eliminate a legal course of action when things go wrong. However, there are many ways wheelchair users can remain vocal, visible, and continue to shine a spotlight on these travel challenges.
When you’re ready to book your next accessible trip, make sure to check out my travel agency website at Spin the Globe/Travel!
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