Integrity Legal

Posts Tagged ‘New Hampshire’

24th April 2011

It recently came to this blogger’s attention that a screener for the Transportation Security Administration (TSA) has been arrested in connection to charges stemming from child pornography. To quote directly from Philly.com:

A passenger screener at Philadelphia International Airport is facing charges that he distributed more than 100 images of child pornography via Facebook, records show.

Federal agents also allege that Transportation Safety Administration Officer Thomas Gordon Jr. of Philadelphia, who routinely searched airline passengers, uploaded explicit pictures of young girls to an Internet site on which he also posted a photograph of himself in his TSA uniform.

The administration of this web log highly encourages readers to click upon the hyperlinks above to read further from this story in order to gain perspective.

This arrest comes amidst calls from State and Federal legislators to reign in the activities of Transportation Security Administration personnel as such activities are coming to be increasingly viewed by many as arbitrary, capricious, and quite possibly in violation of Constitutional protections designed to protect the inalienable rights of United States Citizens. To quote directly from myfoxdfw.com

DALLAS – Full body pat-downs at airports are under heavy scrutiny in Austin. Representative David Simpson of Longview is sponsoring a bill that would make it illegal for Transpiration Security Administration agents to enforce full body searches without justification. The agent conducting the enhanced pat-down could face a felony charge and jail time. “We’ve got a draw a line somewhere,” Simpson said. “We’ve got young children, autistic children, seperated from their mother saying, ‘Stranger danger! Stranger danger!’ Man, oh boy. We’re teaching our children it’s indecent. It’s wrong to let these people in these areas except for a doctor.”

The administration of this blog asks readers to click upon the links above to view this story in further detail.

Texas is not the only sovereign American State to question the methodology of the Transportation Security Administration as this blog previously reported that some New Hampshire State legislators are attempting to take measures to curtail the TSA’s activities. An update on that story can be found by quoting directly from the website WHDH.com:

MANCHESTER, N.H. — A new proposal in New Hampshire would make some controversial TSA security exams a crime. The bill, which is clearly aimed at the Transportation Security Administration, would make an invasive pat down at the airport felony sexual assault unless the screener has probable cause to do the search. “We’re telling the TSA, if they violate our laws and they sexually assault our citizens, we’re going to do something about it,” said Rep. George Lambert, legislation co-sponsor.

In the recent past it appeared as though only State legislators were scrutinizing this issue intensely, but it recently came to this blogger’s attention that State legislators have been joined by a Federal legislator in calling for a rollback of what are perceived to be invasive and questionably Constitutional tactics currently employed by the Transportation Security Administration (TSA). To quote directly from Townhall.com:

In the latest battle of David vs. Goliath, Rep. Jason Chaffetz is taking on the TSA again, this time against the backdrop of a revolting video showing a TSA pat-down of a 6-year-old girl. Chaffetz has introduced a bill that would call for parental consent before minors are subjected to pat-downs at airport security. A parent would also be allowed to be present for the pat-downs. According to Utah’s Daily Herald, Chaffetz’s 15 year old daughter was forced to undergo a private pat-down without parents present. The bill, just introduced, does not specify what would happen if a parent refuses consent for a pat-down of a minor. Chaffetz has challenged the TSA several times on invasive and unproven security procedures like the full body scan machines and the detailed pat-downs, but TSA continues to be inconsistent in their policy implementations. Back in November, the agency said that there would be modified pat-downs for children under 12, since there was no intelligence — even internationally — that children that age were being used in terrorist attacks. However, the video circulating the internet shows no body areas of the 6-year-old girl were off limits in the frisking.

Those reading this blog are encouraged to click on the hyperlinks above to view this story in detail.

Readers interested in seeing the video of the groping of the 6 year old child alluded to above are encouraged to click HERE.

In light of all of the events and issues noted above this blogger would ask the reader to take the time to read the following:

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.

How are “random” searches reasonable? Under the specific facts seen in the video above, how is it reasonable to assume that it is okay to grope a six year old child without probable cause? Where is the rule of law? Meanwhile, are any of these searches occurring pursuant to a warrant based upon probable cause and supported by an oath or affirmation? If not, then under what authority are these searches occurring?

In response to the incident involving the child the TSA web log noted:

A video taken of one of our officers patting down a six year-old has attracted quite a bit of attention. Some folks are asking if the proper procedures were followed. Yes. TSA has reviewed the incident and the security officer in the video followed the current standard operating procedures.

This blogger cares very little for the justifications being posed by the TSA on this point as they are simply naked assertions which are not based upon anything other than the TSA’s unilateral opinion. Under the United States legal system the “current standard operating procedures” are always to be in compliance with the 4th Amendment, especially if a search concerns an American Citizen. If they are not in compliance with the 4th Amendment and the US Constitution, then such procedures are, in this blogger’s opinion: unlawful. Hopefully TSA will rectify their behavior as it seems likely that further tensions could arise as State and Federal legislatures along with local authorities take it upon themselves to protect the civil liberties of their Citizenry and constituents. It is hoped that these issues will be resolved to the benefit of all concerned, but clearly issues surrounding American Citizens’ right to freedom from unreasonable search and seizure must be dealt with in order to uphold the American Peoples’ Constitutional protections.

For related information please see: Necessary and Proper Clause.

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3rd March 2011

It recently came to this blogger’s attention through the Huffington Post website that a legislator in the sovereign State of New Hampshire has introduced a bill that could criminalize certain activities of the Transportation Safety Administration (TSA). To quote directly from the story posted on the Huffington Post official website:

A Republican state representative from New Hampshire named George Lambert has co-sponsored a bill that would make it a felony to touch or view someone’s private parts without probable cause.

Lambert was interviewed by MSNBC on Wednesday to discuss the bill, which would apply to TSA pat downs, as well as the agency’s x-ray scanners. The bill would essentially make it a sexual assault to conduct an invasive pat down or look at images of a traveler on one of the TSA’s new high-tech scanners.

Clearly, the TSA’s current policies on so-called “pat downs” (which many argue are unduly invasive and violate Constitutional protections prohibiting unreasonable search and seizure) and scanning are under fire from many different circles. However, the question must be posed: is New Hampshire Constitutionally permitted to enforce criminal sanctions against TSA officers? TSA officers operate under the jurisdiction of the United States Federal government’s Department of Homeland Security. Most currently binding American jurisprudence has found against the notion that State’s may enforce State law against Federal agents or institutions. The most notable case in this vein is probably McCulloch v. Maryland. In the language of the McCulloch decision, the Court found that the State of Maryland did not have the right to levy a tax upon the Bank of the United States. This decision set the stage for the, now rather sophisticated, premise that the States’ power to enforce State law is curtailed when attempting to enforce that law against the Federal government. Through later cases, this notion was expanded upon. This blogger recently found an interesting article on this topic entitled: What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause. This article delves deeply into the issues associated with Federal preemption of State prerogatives in matters pertaining to Federal operations and Federal agents and this blogger highly recommends those interested in this issue click on the link above to read this article.

It would appear from the plain language of the McCulloch decision that the States’ ability to enforce actions against the Federal government are not restricted completely. To quote directly from page 2219 of the What Kind of Immunity? article noted above, the article’s authors, Seth P. Waxman and Trevor W. Morrison, cited a section of the McCulloch decision which is noteworthy:

[N]o principle [of state power] . . . can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested insubordinate governments, as to exempt its own operations from their own influence.

At first blush, the above citation may appear to fully favor the Federal authorities on the issue of whether the sovereign State of New Hampshire has the authority to enforce criminal penalties against TSA officers, but one phrase is critical to an analysis of New Hampshire’s proposed legislation and that phrase is “legitimate operations“. In the McCulloch case, the Bank of the United States was deemed to be a legitimate operation of the Federal government notwithstanding the fact that the Constitution did not expressly permit such an institution because the Court reasoned that the Federal government, through the Necessary and Proper Clause, could establish a bank so as to facilitate the express Federal powers granted under the Taxing and Spending Clause. In short: the Federal government’s ability to tax and spend is considered a “legitimate operation” of the Federal government and if a bank facilitates that operation, then it is operating lawfully.

This analysis begs the question: Is groping Americans’ genitalia (also referred to as “enhanced pat downs”) and capturing nude body scanner images a “legitimate operation” of the Federal government? If not, then the State may have a right to enforce State criminal law against those who engage in such activity. That said, this issue is far from resolved and the State of New Hampshire has yet to actually promulgate this legislation, but clearly the issues noted above make for interesting jurisprudence.

For related information please see: US States.

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