Texas Republican proposes criminal penalties for overly touchy TSA agents

By Stephen C. Webster
Monday, March 7, 2011 12:29 EDT
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From Republican majorities to corporate outrages, everything’s bigger in Texas.

That even holds true when it comes to giving “the man” the finger, which is precisely what one conservative state representative has set about doing with a new proposal that would make airport security a much tricker business in the lone star state.

Reacting to public outcry over the Transportation Security Administration (TSA) and their recently updated airport screening requirements, Texas state Rep. David Simpson (R) introduced a bill that would aim criminal penalties at agents who get a little too touchy with passengers.

Though unlikely to pass — even with the GOP supermajority in the Texas legislature — the bill quickly became a cause célèbre to civil libertarians who adamantly oppose the TSA’s screening procedures implemented last year.

Rep. Simpson’s bill would amend a statute pertaining to “the offensive touching of persons,” extending it to security personnel who conduct a search “without probable cause.”

That’s actually the exact wording used in the Constitution in the section outlining prohibitions on unreasonable search and seizure.. The legal standard for a lawful search is probable cause: a requirement that law enforcement must meet before most judges will issue search warrants.

The bill specifies that “offensive” touching which takes place as “part of a search performed to grant access to a publicly accessible building or form of transportation” would be reclassified to a state jail felony.

It defines an offender as someone who “intentionally, knowingly, or recklessly: (A) Searches another person without probable cause to believe the person committed an offense; and (B) Touches the anus, sexual organ, or breasts of the other person, including touching through clothing, or touches the other person in a manner that would be offensive to a reasonable person.”

Texas is not alone in the effort: lawmakers in several other states, like New Hampshire, New Jersey and Hawaii, were also considering similar legislation to restrict the TSA in other ways, like prohibiting the use of x-ray machines that capture images of passengers by looking underneath their clothes, or restricting the ways agents can touch passengers.

To some, this isn’t a matter of simply not having one’s “junk” touched in public, as one man famously said while objecting to a search.

“This is nullification at its finest: protecting individual rights on a state or local level when the federal government refuses to abide by [the law], which is pretty unambiguous,” said Michael Boldin, executive director of the 10th Amendment Foundation, in an interview with Raw Story. “There’s no exceptions [in the Constitution] for probable cause if someone’s at an airport or a bus stop or anywhere; no exceptions at all.”

“We hope that this is going to catch on,” he added. “I can’t stand flying now. It’s like they treat you like a dog and they don’t care about your rights, and we’re supposed to say this is acceptable?”

The TSA said backscatter x-ray technology was deployed in 78 different airports by the end of Feb. 2011.

If such practices were banned, it is unclear how the federal government would react. Their response could be similar to how the Justice Department handled the passage of strict immigration laws in Arizona: by challenging their authority in federal court.

Rep. Simpson, the bill’s author, was also behind another proposal to impose a $1,000 fee for every day a Texas airport has backscatter x-ray machines operating in its terminals.

A TSA spokesperson told Raw Story that as a matter of policy, the agency does not comment on pending legislation.

Rep. Simpson did not respond to a request for comment. His proposed law was available online (PDF).

Stephen C. Webster
Stephen C. Webster
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
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