Texas Drops Legislation Targeting Invasive TSA Patdowns

Yesterday, Texas lawmakers pulled legislation targeting Transportation Security Administration (TSA) agents who conduct invasive airport patdown searches after the federal government threatened to ground all flights out of the state.  

The bill (HB 1937), which unanimously passed the Texas House on May 13, would make it a crime, punishable by a $4000 fine and one year in jail, for TSA screeners to touch the genitals of a traveler without probable cause to believe that a crime has been committed.

The bill applied state sexual harassment law to a security agent who conducts intimate searches without probable cause and without a specific law authorizing the procedure. It made it a misdemeanor offense for a security agent to "intentionally, knowingly, or recklessly touch the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing, or touching the other person in a manner that would be offensive to a reasonable person."  

Following House passage of the bill, sponsor Rep. David Simpson said in a statement: "Groping innocent citizens does little to enhance security, but it does much to reduce our freedom and dignity. I am very thankful that members of both parties have joined together to defend our citizens’ dignity against the TSA’s egregious screening methods.”

However, consideration of the bill in the Senate was scuttled after legislative leaders received a letter from the U.S. Department of Justice warning that if the bill passed, flights out of the state could be grounded. 

In the letter to state officials, U.S. Attorney John Murphy warned: 

"The practical import of the bill is that it would threaten criminal prosecution of Transportation Security Administration personnel who carry out the security procedures required under federal statutes and TSA regulations passed to implement those statutes. Those officials cannot be put to the choice of risking criminal prosecution or carrying out their federal duties. Under the Supremacy Cause of the United States Constitution, Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law.

If HR 1937 were enacted, the federal government would likely seek an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew."

Rep. Simpson responded to the letter with a statement:

"The DOJ attempted to justify their action by an appeal to the Supremacy Clause of the United States Constitution and by claiming that the bill 'would conflict directly with federal law.' However, HB 1937 already grants a defense to prosecution for an offense that the actor performed pursuant to and consistent with an explicit and applicable grant of federal authority that is consistent with the United States Constitution.

The bill clearly states that an agent is exempt from prosecution as long as a constitutionally sanctioned federal law directs them to perform the invasive, indecent groping searches-including touching breasts, sexual organs and buttocks. 

Instead of threatening to shut down flights in Texas, why doesn’t the TSA just show us their statutory authority to grope or ogle our private parts?

All that HB 1937 does is require that the TSA abide by the Fourth Amendment to the US Constitution.  We aren’t even prohibiting the pat-downs, per se.  We’re just saying you can’t go straight to third base.  You have to have a reason-you have to have probable cause-before groping someone’s sexual organs.

Simpson concluded, "Someone must make a stand against the atrocities of our government agents. As Reagan said, ‘If not us, who? And if not now, when?’"