Law suits against the TSA based upon existing tort law theories have now been shown to be viable, and a potential new weapon if utilized properly, says the lawyer who developed novel legal theories which have been used against the tobacco and food industries, pricing and other types of discrimination against women, and even against Spiro T. Agnew and violations of potty parity.
A women who was inappropriately and embarrassingly searched by TSA employees succeeded in forcing the government to compensate her, based upon common law tort claims of negligence and intentional infliction of emotional distress. While most of the media coverage has focused on the paltry amount of the settlement - only $2350 - they may be overlooking its potential significance and possible precedent value, says public interest law professor John Banzhaf.
"This settlement strongly suggests that the TSA can't avoid such law suits by making broad claims that federal law authorizing TSA searches completely overrides state law, the various defenses set forth in the Federal Torts Claims Act [FTCA] such as the "discretionary function exemption," or that passengers, by passing through a TSA checkpoint, automatically consent to whatever touchings or other invasions of their personal privacy might occur," says Banzhaf.
Although the amount recovered in this initial case may be small, and possibly not even worth the effort to litigate it, there's every reason to believe that juries, increasingly outraged by overly intrusive searches - especially of the elderly, the disabled, young children, etc. - could return much larger verdicts, including even punitive damages in amounts significant to deter such unlawful conduct, argues Banzhaf.
He notes for example that, although some of the initial verdicts in the law suits against tobacco companies he helped precipitate were modest, later verdicts reached to hundreds of millions and even billions of dollars. Although the law suit he helped bring against McDonald's over fat in its french fries was originally decried as frivolous, it resulted in a $12.5 million settlement, agreements by McDonald's to mend its ways, and opened the door to a new movement to use legal action as a weapon against obesity - similar to the one used so successfully against smoking - with at least ten successful fat legal action victories.
"Also, if the TSA can be forced to make settlements, the settlements could also include remedial measures such as re-training for TSA inspectors, better oversight by knowledgeable supervisors, and even reasonable restrictions on the searches themselves,"
In addition to trying - as Texas, Utah, and other states are now doing - to pass legislation which may in practice not be completely effective, the states might also consider what they could do to facilitate tort actions against the TSA.
These steps might include setting up surveillance cameras in airports to provide strong evidence for such legal actions, legal opinions by state attorneys general helping to validate the law suits, the preparation of "Sue-The-TSA"
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
Creator, Banzhaf Index of Voting Power
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/]