Turns out Southwest Airlines tried to kick yet another person off of a flight. This time, the flyer in question was wearing a sundress that showed too much cleavage for Southwest’s morality police.
Southwest Airlines has a history of preventing paying passengers from flying based on a bunch of different grounds, from too fat to fly to too liberal to lift-off, and every time they boot someone from their planes the media creates a firestorm surrounding our right to fly.
Like everyone, I stare slack-jawed at the television/internet machine when these claims are announced, pondering just what I’m willing to give up in order to cross the country in 6 hours rather than a billion. And like most airline passengers, I come to the conclusion that I’m willing to give up almost all of my personal liberty.
The other day, I was hopping a quick flight back to Boston and had no plans for the rest of the day. I threw on yoga pants, a sports bra, a tight fitting t-shirt and flip flops and headed through security. I went through the body scan – arms up, legs spread shoulder width apart and apparently something on my person seemed suspicious under the scan.
Something on my abdomen and upper torso. That couldn’t be seen by the naked eye, despite my clothing choices highlighting literally every ripple on my body. They asked if they could pat me down. And I agreed. And a handsome woman in blue latex gloves ran her hands up and down my stomach and chest to confirm that I wasn’t hiding anything…
If this interaction had happened anywhere else, I would be freaking the fluff out.You want me to stand here barefoot with my arms above my head and legs spread? And not move? And then you want to caress my torso while wearing latex gloves? While all these people look on? No. No thanks. I do not consent.
And yet, standing in the airport one beautiful morning I thought this whole charade was perfectly acceptable. Because I was getting home in an hour instead of six hours. And for that luxury, I was and still am completely willing to waive my rights against unreasonable searches and seizures. (I know you’re using my Kiehl’s Facial Fuel Scrub, TSA agent. That seizure was totally unreasonable.)
But, should I have to?
See, the Constitution, in the 4th Amendment, provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
And over the years, courts have fleshed out what that means – limiting what, when, and how law enforcement officials can conduct searches and take things and people into custody. We’ve figured out that searches and seizures are ok, as long as they’re not “unreasonable” and that in order to figure out what’s reasonable we look at the totality and nature of the circumstances.
In general, law enforcement has to have a warrant to conduct a search. But there are a whole bunch of exceptions.
Like the Terry Doctrine that allows for stop and frisk searches (they’ll stop you and then pat you down) if the officer has a reasonable suspicion that criminal activity might be happening. This “reasonable suspicion” standard requires that the person who did the search has some objective justification for their suspicion.
In terms of airport security, the Terry Doctrine has led to decisions that permit officers to perform a frisk if they believe there is a threat to safety. Or if a reasonably prudent person (your every-day Joe Six-Pack) believes that he, or others, are in danger.
Um. You guys remember September 11th, right? And the shoe bomber? And the underwear bomber? Seems like a reasonably prudent person would believe that just by virtue of letting people on planes we’re putting people in danger…
Hmm. So even if we think the search and seizure is unreasonable (like patting down the redhead in workout clothes that leave nothing to the imagination and taking her face soap) the Terry Doctrine would probably make it ok? What do you think?
In addition to the Terry exception, there are a bunch of others.
Like administrative searches – they’re permissible if the level of intrusiveness satisfies the administrative need that justifies the search. And they usually work under the reasonableness requirement because they’re not focused on individuals – so they involve a limited invasion of privacy. (I guess the justification is that if TSA officials are seeing everyone’s insides on that scanner… it’s a limited invasion of privacy.) Courts have consistently upheld airport screens as a consensual regulatory search under an administrative program to ensure air safety.
I could keep going on – bc border searches are another exception - but ultimately your standard, everyday search at the airport is valid. And even if you disagree with the analysis above, you’re pretty much giving consent to be searched when you buy a plane ticket. And that’s another exception.
I guess the question becomes what are you willing to give up in order to fly the friendly skies? What will you consent to?