Bill Would Make Some Airport Screening Sexual Assault

[The Northerner]

CONCORD, N.H. -- A House committee is scheduled to hold a hearing on Tuesday on a bill that would make it a sexual assault for an airport screener to touch or view a person's breast or genitals without probable cause.

The bill (HB628-FN) includes anyone working as a security agent of the federal, state, or local government, and includes touching or viewing with a "technological device."

The bill states "discussing or possessing a copy of the Constitution, discussing the security apparatus of an airport, being on the premises of an airport, possessing an airplane ticket or any other type of ticket for access to mass transportation, driving a motor vehicle on a public way, or ownership of firearms" should not be considered probable cause.

Anyone convicted of the offense would be classified as a tier III sex offender. Tier III sex offenders are registered for life and must remain on the public list of sex offenders.

The bill is scheduled to be heard by the House Criminal Justice Committee shortly at 11:15 a.m.

Read more: http://www.wmur.com/politics/27035604/detail.html

[sakabatou]

1. Rec'd

[MadHound]

2. If it goes through, it won't survive a court challenge,

Especially since this will be effecting all sorts of law enforcement people, not just TSA. Can't hamstring cops patting down a perp for weapons.

[EFerrari]

5. But that's probable cause, isn't it?

[jberryhill]

6. No, it isn't

If you are out jogging, and there was a bank robbery in the area, a cop might see you running from the bank and have a reasonable suspicion you might be the bank robber. That doesn't rise to the level of probable cause.

In a "reasonable suspicion" situation there are articulable facts ("he was running away from the direction where a bank was robbed") in which a cop can stop you and ask a question or two.

That situation is called a "Terry stop" (named after the case on this point). There is no probable cause to arrest you for robbing the bank, but there are facts on which there might be a suspicion.

As a practical matter, you might be carrying a weapon and you might really be a desperado of some kind ready to take out the officer. Under Terry, the cop is allowed to conduct a frisk for the purpose of establishing you are not carrying a weapon that might jeopardize the cop's safety. The cop can detain you and ask questions to the extent of dispelling or confirming his or her suspicion about the bank robbery, but no longer than necessary for that purpose.

It is a search. However, the purpose of the search is not to look for evidence of a crime, and it is a permissible search.

Now, if the cop feels that you have a hash pipe in your pocket, and can identify it by the external feel, then you have another problem, since it was found incident to a lawful search - even though that has nothing to do with why you were the subject of the Terry stop. Those kinds of cases will come down to whether the cop had a reasonable suspicion on which the Terry stop was premised in the first place.

Airport searches fall under a different doctrine - the administrative search. The use of a metal detector, which has been going on since the 1960's is a search. The rules around administrative search PREVENT the use of suspicion of any kind as a guide for selection. That's why the various notions of using profiling or interrogations to target airport actually ERODE the existing fourth amendment search protections, such as they are. What people want to argue on DU is that (a) there must be probable cause, and (b) you can obtain probable cause based on whether someone "looks like a terrorist" or is within a certain age range or ethnic group.

Where the rubber meets the road on the recently enhanced procedures is whether the intrusiveness of the search is proportional to the risk sought to be prevented, because the administrative search doctrine - whether applied to sobriety checkpoints (which are run under the same doctrine) or airports - requires proportionality. It's a balancing test in a grey area that needs to be hashed out in court instead of people arbitrarily believing that there is a black-and-white line among the spectrum of things that might be done to prevent concealed weapons or explosives from getting onto airplanes.

[Ian David]

3. The "solution" would be to hire TSA screeners who are ALREADY Tier III sex-offenders. n/t

[MineralMan]

4. Many bills are introduced. Few become law.

This one will not be one of the few.

[HopeHoops]

7. K&R