In Vanderklok v. United States, 3rd Circ., No. 16-3422, the U.S. Court of Appeals for the Third Circuit declined to apply the civil rights laws in favor of an air traveler who was mistreated by TSA screeners. However, Vanderklok was not the end of the story. The Federal Tort Claims Act grants the United States sovereign immunity for intentional torts committed by federal employees. An exception to that immunity is the so-called “law enforcement proviso.” This waives immunity for certain intentional torts committed by employees who are “investigative or law enforcement officers.” Thanks to a crimped view of the law, air travelers strike out again.

The court, in Pellegrino v. United States, held that TSA screeners are not “investigative or law enforcement officers” and therefore the claims must be dismissed.

In 2006, Nadine Pellegrino and her husband, Harry Waldman, arrived at the Philadelphia International Airport. They were to catch a flight to Florida. The traveler asked for a private screening, because she was dissatisfied with how she was being treated. Pellegrino contended that the screener was unnecessarily rough and invasive. The screener and the passenger both acted badly and the situation deteriorated. Repacking of the items became a crass and irritable situation. Pellegrino tossed her shoes through an open door toward the screening lanes and began to carry her largest bag out of the room. Finally, Philadelphia police officers arrived at the scene, arrested Pellegrino and took her to the police station where she was held for approximately 18 hours before being released on bond. Eventually, the Philadelphia District Attorney's Office filed 10 charges against Pellegrino involving felony aggravated assault, possession of instruments of a crime, reckless endangerment and simple assault and making terroristic threats.