Could Decision Bring the Fourth Amendment Back to Airports? Eric Andre stars in the ABC unscripted comedy, "The Prank Panel" (ABC) Eric André is a surrealist comedian whose eponymous and NSFW show on Adult Swim was beyond edgy. In one of his hidden-camera comedy bits on his recent Netflix special, Legalize Everything, he steps out of a police car in a police uniform, scattering broken beer bottles on the street, and then approaches astonished onlookers with what appears to be a bong and a bag of mushrooms. “I stole it from the evidence room,” he says to one startled passerby, offering his purported drugs. “This stuff will knock you into next Tuesday, you gotta get high with me.” Imagine Candid Camera on drugs. But André, as himself, was not carrying drugs or acting weird when he tried to board a flight in the Atlanta airport in 2021. He had passed through TSA screening and a boarding pass check, only to be stopped on the jet bridge seconds from entering the plane and taking his seat. The police asked André for his boarding pass, then held both his pass and ID while interrogating him about his travel plans. André claimed that with officers standing in front of him, holding documents without which he couldn’t move, a “request” to search his bag was hardly consensual. He was just one of the 402 people that the Clayton County “Airport Interdiction Unit” had similarly stopped over an eight-month span. André, along with comedian-actor Clayton English (who had the same experience earlier), brought a Fourth Amendment lawsuit, dismissed by a federal district court. When André and English appealed, the Eleventh Circuit Court of Appeals revived their lawsuit – a powerful and necessary affirmation that constitutional protections do not fade away at the airport gate. The Eleventh Circuit’s recent opinion explains that an improper “seizure” of a person’s effects occurs when that “person’s ‘freedom of movement’ … is restrained ‘by means of physical force or a show of authority.’” The Court held that this was an objective test, resting on the determination of whether the officer’s words and actions would have conveyed to a reasonable person that he was not free to leave. Yep, holding someone’s boarding pass and ID would tend to give you that impression. The court stressed that “blocking an individual’s path … is a consideration of great, and probably decisive, significance.” The Eleventh Circuit also concluded that under qualified immunity the individual officers cannot be held liable at this stage of litigation because the law is not so “clearly established” in jet-bridge settings that the officers should have known their actions violated rights. Despite this limitation, André and English can still sue for the violation of their Fourth Amendment rights. PPSA believes this may well become a landmark case. We’ve become used to putting up with intrusive inspections at the airport, ranging from millimeter-wave imaging of our nude bodies to pat downs of our intimate areas. These are unfortunate but arguably necessary steps to ensure that bombs and weapons are kept off planes. But playing games with passengers’ Fourth Amendment rights at the jet bridge because someone’s crazy hair strikes an officer as suspicious was appropriately called out by the 11th Circuit. A follow-up case the courts might soon consider is the widespread practice of Customs and Border Protection agents holding the laptops and digital devices of Americans returning from abroad, ushering them in side rooms while demanding their passcodes. Many Americans have been strong-armed in this way into allowing inspections of the contents of their digital devices, involving more personal information – texts, images, messages – than what most people have in their carry-ons. The American airport has become a gray zone for constitutional rights. If André and English win their lawsuit, this could well mark a revival of the Fourth Amendment for flyers. Comments are closed.
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