Aaron Tobey v. Terri Jones
706 F.3d 379 (2013)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Government officials violate a clearly established First Amendment right when they retaliate against an individual for engaging in peaceful, non-disruptive political expression in an airport security screening area by causing their arrest without probable cause. Officials engaging in such conduct are not entitled to qualified immunity from a civil suit at the pleading stage.
Facts:
- On December 30, 2010, Aaron Tobey was at Richmond International Airport to fly to his grandfather's funeral.
- In protest of TSA screening procedures he believed were unconstitutional, Tobey had written the text of the Fourth Amendment on his chest.
- After being selected for enhanced screening, Tobey removed his sweatshirt and t-shirt, revealing the constitutional text written on his chest.
- TSA Agent Smith advised Tobey that he did not need to remove his clothes.
- Tobey calmly responded that he wished to express his view that the screening procedures were unconstitutional.
- Immediately following Tobey's statement, Agent Smith radioed for assistance, and her supervisor, Agent Jones, also requested help from airport police.
- Tobey remained quiet, cooperative, and complied with all requests from agents.
- Richmond International Airport police officers arrived and, without inquiry, immediately handcuffed and arrested Tobey.
Procedural Posture:
- Aaron Tobey filed a lawsuit in the United States District Court for the Eastern District of Virginia against TSA Agents Jones and Smith, among others, alleging violations of his First, Fourth, and Fourteenth Amendment rights.
- The TSA agents filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss all claims, asserting qualified immunity.
- The district court granted the motion to dismiss the Fourth and Fourteenth Amendment claims but denied the motion as to the First Amendment retaliation claim.
- The TSA agents (Appellants) filed an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit, challenging the district court's denial of qualified immunity on the First Amendment claim. Aaron Tobey is the Appellee.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Do TSA agents violate a clearly established First Amendment right when they cause the arrest of a passenger for peacefully and non-disruptively displaying the text of the Fourth Amendment on his chest as a form of protest in an airport security screening area, thus precluding qualified immunity at the pleading stage?
Opinions:
Majority - Judge Gregory
Yes. Causing the arrest of a passenger in retaliation for a peaceful, non-disruptive political protest in an airport security screening area violates a clearly established First Amendment right. At the motion to dismiss stage, it is a reasonable inference that the TSA agents caused Tobey's arrest by calling the police immediately after he explained the expressive nature of his conduct. Tobey pleaded a valid First Amendment retaliation claim by alleging he engaged in protected speech (a peaceful protest), suffered an adverse action (arrest), and that a causal connection existed, which is suggested by the close temporal proximity between his protest and the arrest. The agents' argument that Tobey's conduct was 'disruptive' is a question of fact that cannot be resolved on a motion to dismiss, as the court must accept Tobey's allegation that he was calm and cooperative. The right to engage in peaceful, non-disruptive political protest is clearly established, even in a non-public forum like an airport, and it is unreasonable for officials to effect an arrest for such conduct without probable cause.
Dissenting - Judge Wilkinson
No. The TSA agents' actions did not violate a clearly established First Amendment right, and they should be entitled to qualified immunity. The majority fails to give proper weight to the high-security context of an airport screening checkpoint, where Tobey's 'bizarre' and distracting conduct of stripping posed a potential safety risk by diverting agents from their primary duties. Qualified immunity requires that law be clearly established in a particularized sense, and no existing precedent provided fair notice to these agents that calling police in response to such a distraction was unconstitutional. The complaint fails to plausibly allege viewpoint discrimination under the Twombly/Iqbal standard, as the 'obvious alternative explanation' is that the agents were responding to Tobey's disruptive conduct, not the content of his message. Given that the agents' actions were reasonable for Fourth Amendment purposes, any First Amendment claim based on a retaliatory arrest theory is not clearly established, per Reichle v. Howards.
Analysis:
This decision clarifies the application of First Amendment principles in the unique, security-sensitive context of a post-9/11 airport checkpoint. It establishes that the government's interest in security does not create a speech-free zone where officials can retaliate against peaceful, non-disruptive protest. By denying qualified immunity at the pleading stage, the court signals that plaintiffs with plausible retaliation claims should be allowed to proceed to discovery, making it more difficult for officials to dismiss such suits early. The case reinforces the principle that factual disputes, such as whether a protest was genuinely 'disruptive,' cannot be resolved on a motion to dismiss in favor of the government defendant.
