A pregnant woman who was subjected to an aggressive search of her genital area after she declined to go through an airport body scanner can sue the Transportation Security Administration for mental distress.
Aligning itself with five other federal court districts, the 11th Circuit Court of Appeals ruled an exception to the law providing sovereign immunity to the government includes TSA officers. A Florida lower court, and the federal government, had relied upon an earlier unpublished 11th Circuit decision ruling the other way to argue TSA employees weren’t “investigative or law enforcement officers.”
Elizabeth Koletas was pregnant and traveling through Southwest Florida International Airport in 2022 when she asked to skip the body scanner out of concern it would hurt her unborn child. The TSA officers said she could, but she would have to consent to a pat-down search.
After an officer noticed a bulge in her vaginal area, she was ordered to lift her skirt and pull down her underwear, according to the lawsuit. The woman complained the bulge was tissue to soak up blood from her pregnancy but the officers insisted. It was, in fact, tissue, and Koletas sued under the Federal Tort Claims Act.
“Koletas was deeply shaken by her encounter” with the officers, the 11th Circuit said, “and developed a host of psychological and physical symptoms as a result of enduring their strip search: battery, false imprisonment, intentional infliction of emotional distress, and negligence.”
The FTCA lifts sovereign immunity for some lawsuits but has an exception for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.”
The law contains a carveout, however, for “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process” committed by “investigative or law enforcement officers,” defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”
Five other circuits concluded TSA officers fall under the carveout, but the 11th Circuit had earlier distinguished TSA employees from “investigative officers” in an unpublished opinion. This time, the court said the earlier decision had no precedental value.
“We caution district courts from relying on our unpublished decisions purely because they are our decisions, without carefully evaluating the legal suasion,” the court said in an opinion issued Nov. 12. “There are few jobs more closely associated by the public with the notion of a ‘search’ than a (TSA officer); it is effectively the bulk of their job.”
