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Originally published February 18 2013

Fourth Amendment protester may win wrongful detainment lawsuit against feds

by J. D. Heyes

(NaturalNews) A man who used a marker to write an abbreviated version of the Fourth Amendment on his chest and abdomen, then stripped to his skivvies at an airport security screening area, won't be jailed for the incident. In fact, he may even receive hundreds of thousands of dollars.

Aaron Tobey of Virginia claimed in a federal civil rights lawsuit he was handcuffed and held for an hour and a half by Transportation Security Administration officers in 2010 at the Richmond International Airport after he began removing clothing to display what he had written as part of a protest against invasive airport security screening methods.

His body read, "Amendment 4: The right of the people to be secure against unreasonable searches and seizures shall not be violated."

Ben Franklin would approve

In January, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled two to one to reverse a lower court ruling that had gone against Tobey, even invoking Benjamin Franklin in the process, reported.

In writing for the majority, U.S. District Judge Roger Gregory said:

Here, Mr. Tobey engaged in a silent, peaceful protest using the text of our Constitution - he was well within the ambit of First Amendment protections. And while it is tempting to hold that First Amendment rights should acquiesce to national security in this instance, our Forefather Benjamin Franklin warned against such a temptation by opining that those 'who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.' We take heed of his warning and are therefore unwilling to relinquish our First Amendment protections - even in an airport.

Tobey, like millions of other Americans, did not want to go through the advanced imaging x-ray machines - the so-called nude body scanners - that are now in wide use at several airports around the country. Rather, when it was his time to be screened, he wanted to opt for an intrusive pat-down and in doing so began to remove most of his clothing.

In his suit, Tobey claimed, among other things, that he was wrongfully detained, that those who detained him violated his First Amendment right to freedom of speech and, of course, the Fourth Amendment's privacy protections. He was on his way to Wisconsin to his grandmother's funeral; he made the flight despite being held for 90 minutes.

The suit alleged that, during his interrogation by Richmond International Airport police and TSA agents, Tobey was asked "about his affiliation with, or knowledge of, any terrorist organizations, if he had been asked to do what he did by any third party, and what his intentions and goals were."

A few weeks after his protest, Henrico County prosecutors dropped misdemeanor charges against him and he sued the police officers, the TSA, and because she heads up the TSA, Homeland Security Secretary Janet Napolitano.

How about someone take a look at the reason behind the protest?

U.S. District Judge J. Harvie Wilkinson, the lone dissenter, wrote:

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey's antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey - and the distraction he was creating - from the scene.

Notice the language: "antics" and "diversion," not speech; the use of scare tactics ("nefarious actors," "exploited") to justify precisely the kind of arrangement Benjamin Franklin warned against; assuming that all travelers agreed with his point of view by stating as fact that "defendants responded as any passenger would hope they would..."

The appeals court got the decision right for Tobey, who is seeking $250,000 in damages. But what needs to occur next is a serious examination of why Tobey felt it necessary to stage his protest in the first place - serial abuses of constitutional rights by TSA agents using a federally mandated "screening process."


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