On The Front Lines

District Court Agrees to Keep Aaron Tobey TSA Protest Case Alive, Rejects Government’s Motion to Dismiss Airport Stripper Lawsuit

RICHMOND, Va.—U.S. District Judge Henry Hudson has rejected a motion by the Federal government to dismiss First Amendment claims against two Transportation Security Administration (TSA) agents in a civil rights lawsuit involving college student Aaron Tobey who was arrested for disorderly conduct after removing his shirt at Richmond International Airport (RIC) and exposing a portion of the Fourth Amendment written on his chest. While allowing the viewpoint discrimination claims against the individual TSA agents to move forward, the court dismissed the lawsuit against TSA supervisory officials and the Capital Region Airport Commission as an entity. The suit charging several Capital Region Airport Commission police officers with constitutional violations and false arrest in connection with the incident remains active and is moving forward.

Tobey made his novel protest against the TSA's use of whole-body imaging scanners and enhanced pat downs on December 30, 2010. Attorneys for The Rutherford Institute subsequently filed a free speech lawsuit in U.S. District Court in March 2011. The lawsuit alleges that agents of the TSA and RIC police deprived Tobey of his rights under the First and Fourth Amendments to the U.S. Constitution. Hudson has tentatively set the case for trial on Jan. 18, 2012.

"Aaron Tobey was arrested for exercising his right to free speech, which is clearly protected under the First Amendment," said John W. Whitehead, president of The Rutherford Institute. "Tobey was also unduly seized by government agents in violation of the Fourth Amendment, despite the fact that he did nothing to disrupt airport routine."

Aaron Tobey, who was then a student pursuing a degree in architecture, was waiting in line to pass through screening at Richmond International Airport on December 30, 2010, when he removed his shirt to show that he had written on his chest part of the text of the Fourth Amendment ("The right of the people to be secure… against unreasonable searches and seizures, shall not be violated"), which protects the privacy of individuals by forbidding unreasonable searches and seizures by government agents.

Despite successfully passing through the screening, Aaron was arrested and handcuffed. Government agents from agencies including the Joint Task Force on Terrorism questioned Tobey for approximately 90 minutes before citing him for disorderly conduct, a Class I misdemeanor under Virginia law, which carries penalties of up to $2,500 and 12 months in jail. The Henrico County Commonwealth's attorney eventually dropped the charges against Tobey.

In the March 2011 complaint filed in the U.S. District Court for the Eastern District of Virginia, Institute attorneys allege that Tobey was arrested and held for questioning without sufficient cause in violation of the Fourth Amendment's protection against unreasonable searches and seizures and the First Amendment's protection against discrimination based on the content and manner of his protest. The Rutherford Institute's complaint in Tobey v. Napolitano is available here.