Comedians Clayton English, center, and Eric André, right, speak with their attorney outside the … More
Is there anyone who flies regularly who hasn’t momentarily panicked over misplacing their ticket or driver’s license? After a couple of scares, I now always put my license right back in my wallet as soon as I get it back from TSA. After all, they’re the two most important things you need to get to where you are going and back.
That’s why it was so shocking when, last week in a hearing in a federal appeals court, a government attorney told the panel of judges that airline passengers should feel “free to leave” and board their flight even if a police officer has their ticket and license and won’t give them back.
Comedians Sue Over Airport Stops
That government attorney is representing Clayton County, Georgia police officers in a suit filed by comedians Eric Andre and Clayton English. Those officers interrogated Andre and English while they were boarding their flights out of Atlanta Hartsfield International Airport. Their suit argues the officers violated the comedians’ Fourth Amendment rights by insisting on searching their carry-on bags and unconstitutionally target flyers by race (both Andre and English are Black).
Every passenger has to go through TSA security checks before they head to their plane, but police also approach passengers in search of illicit drugs or cash. But in these supposedly “consensual” encounters, officers are not supposed to force flyers to submit to a search. Handing over your bag must be “voluntary” in order for the search to be constitutional.
A federal district court had previously dismissed Andre and English’s lawsuit. It found that the two comedians lacked evidence that officers were singling out passengers by race and that they had voluntarily let officers search their bags.
According to their complaint, the officers stood in the way of Andre and English, demanded their tickets and licenses, and then started asking them questions about whether they were carrying illegal drugs.
Appeals Court Could Put Lawsuit Back on Track
The 11th Circuit’s judges seemed open to reversing the district court, delving deep into whether the searches crossed the line from voluntary to mandatory. Judges asked the government’s attorneys, for instance, if officers had to stand to the side of passengers when they asked to conduct a search or if they could instead bar the way forward. The judges also asked about another proposed scenario where the officers had taken the passenger’s license and ticket while asking to search a carry-on bag.
Then Judge Elizabeth Branch asked a critical question: “But they’re free to leave this stop and get on the plane without a license?” The attorney response was clear: “Yes, your honor. Sure, it’s not convenient, they probably do not want to leave their driver’s license.”
Leaving behind your license isn’t a mere inconvenience. It means effectively stranding yourself at your destination. You can’t get back through security for a return flight or drive home legally. And that doesn’t even touch on how an officer who is holding onto a license might react to a passenger just walking away mid-interrogation.
What Really Happens When Passengers Ignore Law Enforcement
If Andre and English had moved on past the officers, the result might have been exactly what happened to flyer David C. at the Cincinnati airport. In that case, David knew his rights and walked away. The DEA agent then followed him onto the plane and seized David’s carry-on bag over his objections. With his carry-on bag, his ID and medication inside, now with the DEA, David had no choice but to step off the plane and was eventually bullied into permitting a search of his bag.
David’s encounter prompted a Department of Justice Inspector General investigation and led the DEA to end its program that included agents making “consensual” encounters at the airport. However, there is nothing preventing the new administration from resurrecting the program.
The Fourth Amendment Protects Americans From Unreasonable Searches
The origin of the Fourth Amendment is clear: the Founding Fathers had been subjected over and over again to intrusive searches by British authorities. Operating with “general warrants” soldiers searched any home they wished, even breaking down doors. John Adams watched the fight over one of these warrants and later wrote that when the court blessed the broad search powers: “Then and there the child Independence was born.”
Jetway searches are really fishing expeditions. The TSA already searches passengers’ bags thoroughly and can report any illegal items to local law enforcement. But when law enforcement agencies find passengers with cash, they can seize the money and try to take it through civil forfeiture even though it is legal to fly domestically with any amount of cash. And when officers find and seize cash, they often let flyers go without making an arrest.
While the DEA seems to be out of the business (for the moment) of shaking down flyers, Clayton County is vigorously fighting the lawsuit. A victory for the county will certainly encourage more “consensual” encounters at the Atlanta airport but may also prompt other local law enforcement agencies at major airports to use the same tactics.
We’ll know in a few months whether the lawsuit remains dismissed or gets to move forward. Even if you don’t fly regularly, the implications for the Fourth Amendment could apply more broadly. It should be obvious that no one is free to go if the authorities are holding onto the basic identifying information you need to move freely.
