Fourth Amendment Blog – Plaintiff stated First Amendment retaliation claim for being arrested for having Fourth Amendment written on chest
Plaintiff took off his shirt at airport security, and the text of the Fourth Amendment was written on his chest. Wearing only shorts and socks, he cooperated with the screening process, and he was arrested and handcuffed for disorderly conduct. He stated a claim for First Amendment retaliation against the TSA officers and local police who arrested him. Tobey v. Jones, 11-2230 (4th Cir. January 25, 2013):
In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.
At this point, Agent Smith radioed for assistance. As commanded by her supervisor, Appellant-Agent Jones, Agent Smith ordered Mr. Tobey to remain in front of the AIT unit. Agent Jones and unknown Appellant-Agent Doe then asked RIC police for assistance. At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him. In fact, Mr. Tobey alleges that he “remained quiet, composed, polite, cooperative and complied with the requests of agents and officers.”
RIC police officers Vann and Mason arrived on the scene and immediately handcuffed and arrested Mr. Tobey. None of the TSA agents informed RIC police of what occurred at the screening station, nor did RIC police ask. Officer Vann escorted Mr. Tobey to a side area and informed him he was under arrest for creating a public disturbance. Agent Doe searched Mr. Tobey’s belongings, removing unidentified items. Officer Mason then collected Mr. Tobey’s belongings with assistance from Agents Smith and Doe.
Mr. Tobey was then taken to the RIC police station where Officer Vann and other officers questioned Mr. Tobey and threatened him with various criminal sanctions. Mr. Tobey was eventually charged with disorderly conduct in a public place. See Va. Code Ann. § 18.2-415. The officers later released Mr. Tobey after consulting with an Air Marshal from the Federal Air Marshal’s Joint Terrorism Task Force. In total, Mr. Tobey was held for over an hour. Mr. Tobey boarded the plane without further incident. The Commonwealth Attorney for Henrico County subsequently dropped the disorderly conduct charge.
He survives qualified immunity analysis:
These legal conclusions are well supported by the facts laid out in Mr. Tobey’s complaint. Mr. Tobey alleges that he removed his sweatpants and t-shirt to reveal the text of the Fourth Amendment on his chest. Appellants told him that he did not have to remove his clothing, but he responded that he wished to express his views that the screening process was unconstitutional. Immediately after this assertion, Appellants engaged RIC police officers to arrest him.
They handcuffed and seized him with no questioning and without telling him why he was being arrested. In short, Mr. Tobey’s complaint satisfies all three elements of a First Amendment claim as he alleges: (1) he engaged in constitutionally protected non-violent protest; (2) he was seized as a result of the protest; and (3) the temporal proximity of his peaceful protest and his arrest, unsupported by probable cause, shows Appellants engaged in impermissible retaliation. Cf. Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (observing that “the timing of the search raises an inference of retaliatory motive”). The factual allegations in the complaint, viewed as a whole, have “facial plausibility” that “allow the court to draw reasonable inference that the defendant[s] [are] liable for misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This is not a case where the complaint is merely “threadbare recitals of a cause of action’s elements supported by mere conclusory statements.” Id. These factual allegations, when viewed as accurate, adequately support Mr. Tobey’s legal assertion that he was unlawfully seized in retaliation for exercising his protected First Amendment rights.