Legal News You Can Use
By Stephen T. Holzer
A new twist on body searches at airports
Amid all the hub-bub over body scanners and intimate pat-downs by TSA agents at airports, a new wrinkle: local prosecutors in San Mateo and Santa Clara counties threaten that they will prosecute for sexual battery any TSA employee who shows an intent to become too intimate with the pat-downee.
In a report dated November 18, 2010 in The Vancouver Sun, the assistant DA in San Mateo County declared, "If an employee of TSA inappropriately touches the privates of another person, and they do so with a sexual or lewd intent, then that’s either a misdemeanor (if it’s over the clothing) or a felony crime (possible when touching the skin)."
So, as frequently argued in this column in the past, law has completely overtaken common sense:
- it is illegal discrimination if we “profile” passengers (i.e., middle-eastern men between the ages of 20-40 getting more scrutiny that an 80-year old Caucasian or African-American grandmother);
-so everyone is now subject to radiation from new, intrusive full-body scans or, alternatively, to being felt up by TSA agents; if the passenger refuses, he or she is now subject to the legal process in which he or she can be fined up to $11,000; and
-if the passenger agrees to the pat-down (under threat of legal proceedings and fines), the TSA employees themselves are subject to prosecution for sexual battery if the pat-down goes awry.
As President Bush said to the head of FEMA in a now-famous misspeak during the Katrina crisis, “Heckuva job, Brownie”. Perhaps President Obama now wishes to give the same praise to the head of TSA.
The real terrorists are in their caves, laughing hysterically at how our penchant for making everything subject to legal challenge has tied ourselves up in knots. As we use up our resources pointing fingers at each other for possible legal transgressions, the terrorists are busy plotting new ways to endanger our security.
Every law-abiding nation surely must have some legal protections against an intrusive government. On the other hand, the government has a responsibility to protect the security of its citizenry, even if some protective measures run the risk of violating civil liberties. The real question should be how does the government enforce effective protection while violating civil liberty the least.
The common-sense answer is profiling. Profiling is not perfect, but please remind me of the last time an 80 year-old African American grandmother tried to blow up a plane or shoot up an Army barracks.
Instead of asking one group of people to bear an admittedly disproportionate share of scrutiny, out of political correctness we’ve decided to subject the whole population to radiation or being felt up by strangers. And to threaten the TSA employees with criminal prosecution for doing that job to boot.
Why doesn’t someone do a survey of middle eastern men between, say, 20-40 to find out if they would really be that upset with being subject to extra security surveillance compared to the rest of the population? It’s a good guess that the 99.9% of such people would welcome the extra scrutiny because they would like to be kept safe, too.
Unless you possess a particularly thick law book, don’t try holding it up to shield yourself from a terrorist bomb or bullet. It won’t work.
The terrorists don’t really have to attack us anymore to try to kill our way of life. We are doing the job for them by strangling ourselves in political correctness and legal red tape.
Stephen Holzer practices law at the Encino law firm of Lewitt Hackman Shapiro Marshall & Harlan, specializing in business litigation and environmental matters, and is the Chair of the United Chambers of Commerce of the San Fernando Valley. He can be reached at sholzer@lewitthackman.com or 818-907-3299 with any questions about this column.