Michael Roberts: Heroic Pilot Stands Up for His Constitutional Rights

Michael Roberts, a pilot for ExpressJet Airlines, stood up for his constitutional rights when he refused to pass through the TSA’s new Advanced Imaging Technology (AIT) machine that, as he says, amounts to “virtual strip searching,” and then when offered the alternative of being frisked by a TSA agent, also declined the alternative secondary screening of being frisked by a TSA agent.  Mr. Roberts’ account can be read here.

Mr. Roberts said he had gone through the TSA metal detector countless times, had never been suspected of carrying dangerous materials on a flight, and had even taught the security portion of a TSA-mandated course for his airline.  But they wouldn’t let him through the checkpoint unless he consented to either the virtual strip search of the AIT machine, or a physical frisking.  He refused, and after some further questioning, was eventually allowed to leave the airport.

He was willing to go through a metal detector as he had done in the past, but that was no longer an option.  TSA policies have become increasingly intrusive, as anyone who flies regularly knows.

The Fouth Amendment to the Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

I am not an attorney, but my common sense tells me that the TSA was asking Mr. Roberts to undergo an unreasonable search without probable cause.  If the government can’t tell you, “Here’s why we suspect you, and here’s what we expect to find when we search,” then as I read the Constitution, the search is unconstitutional.

I fly the airlines frequently, and I always passively step through the TSA-mandated search, because I’m sure that if I didn’t, like Mr. Roberts I would not be able to complete my trip.  So, my choice is: put up with what I view as unconstitutional violations of my rights and take the trip, or refuse and stay home.  I compromise my principles and go, but I’m not happy about it.

So, I applaud Mr. Roberts, who has much more at stake than I do, because he’s risking his job to protect his constitutional right against unreasonable search.  I deliberately put his name in the title of my post, because I believe he deserves as much publicity from this as he can get.

I would have some second thoughts about Mr. Roberts’ stand if I thought the vast expense and erosion of our rights actually made flying safer, but I don’t think that is the case.  The TSA has NEVER uncovered any security threats from anyone at any TSA checkpoint.  They have occasionally found guns, but not carried by people who intended to use them on flights.  They didn’t find the shoe bomber (but, now YOU have to take off your shoes), and they didn’t find the underwear bomber (and, Mr. Roberts notes, the TSA is now moving toward requiring everyone to undergo a virtual strip search).

My wife, who normally carries a small knife on her keychain, has lost many knives to the TSA, because she forgets to take the knife off her keychain.  Once I sent my two teenage boys off to visit their uncle without briefing them on TSA procedures, and they both got caught with toothpaste in their backpacks.  I did witness a feeble old woman in a wheelchair being patted down by TSA agents because she couldn’t make it through the metal detector in her wheelchair.  Is any of this reasonable?

The only reason I can see for the TSA policy on liquids, gels, and aerosols, is that it allows them to catch violators with some regularity.  If they were only looking for guns, knives, box cutters, and bombs, they would almost never find anything, and surely their senses would be dulled going day after day after day looking for something that’s never there.  But with their current policies, they can find all sorts of things that aren’t threats at all, but do violate their policies.

Once, passing through London, I got pulled out of the line by some very polite British agents for a more intensive inspection where they had me empty everything out of my carry-on.  They apologized and said they pulled people at random for these inspections.  As an old greybeard, I told them I was flattered that at my age anyone would single me out as a potential security threat.

OK, end of rant.  And hats off to Michael Roberts, who unlike me, is willing to stand up to the federal government for his constitutional rights, even though doing so will imperil his livelihood.  That takes some courage, and I hope he is willing to pursue this, and to win his constitutionally-granted right to be free from unreasonable searches without probable cause.

Randall G. Holcombe is Research Fellow at the Independent Institute and DeVoe Moore Professor of Economics at Florida State University. His Independent books include Housing America: Building Out of a Crisis (edited with Benjamin Powell); and Writing Off Ideas: Taxation, Foundations, and Philanthropy in America .
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