TSA Tyranny Withdraws Support from House Version of TSA Anti-Groping Bill (HB41)
Recent amendments introduced to HB 41 — which adopt changes made at the urging of Lt. Governor David Dewhurst and Speaker Joe Straus — would strip the proposed TSA Anti-Groping bill of its teeth and render prosecution under the measure extremely difficult. More importantly, the new language concedes the debate on the fundamental constitutional question at stake. Rather than declaring that a state actor cannot touch a person’s private parts without probable cause in violation of the Fourth Amendment, the amended language requires that a prosecutor prove in every instance that such inappropriate touching does in fact violate the Constitution, or their case will be dismissed. With this in view, TsaTyranny.com believes HB 41, in its present form, will only affirm and embolden TSA officials in their abusive procedures and hinder prosecutors from holding them accountable. Consequently, TsaTyranny.com opposes the present wording of HB 41 and withdraws support of the bill until the compromise language is removed.
1. Contact Rep. David Simpson and urge him to return HB 41 to its clear defense of Texans’ Fourth Amendment rights. Encourage him to insist that the bill identify that pat downs performed without probable cause which involve the touching of private parts are unconstitutional. Call him and urge these changes: (512) 463-0750.
2. Contact Senator Dan Patrick and urge him not to support the current proposed changes in House Bill 41?s language. Ask him to retain SB29’s clear defense of Texans’ Fourth Amendment rights. Encourage him to insist that the bill identify that pat downs performed without probable cause which involve the touching of private parts are unconstitutional. Call him and urge these changes: (512) 463-0107.
“After Lt. Gov. Dewhurst published a press release indicating that he had been working with the Attorney General’s office to address the threats of the Obama Administration, we read other reports which stated that the amendments to the TSA Anti-Groping bill he was advancing would render the legislation ‘wholly irrelevant’ and make its passage a mere symbolic victory — reports which left us very concerned,” noted Michael Gobart, Founder of TsaTyranny.com. “After consulting with multiple attorneys and legal teams who investigated the matter, we concluded that the amendments would indeed gut the bill of its force.”
“The office of TsaTyranny.com, along with the legal team who helped to draft the original wording of HB 41, met with Representative David Simpson, the bill’s author in the House, to oppose recommended changes which would strip the legislation of language clearly identifying the TSA pat-downs/searches as unconstitutional,” continued Gobart. “Our appeals were heard, but not heeded.”
Gobart concluded: “We entered this important battle to secure our Fourth Amendment rights and the sanctity of our bodies, not simply to get a bill passed.”
If HB 41 is passed with the amendments suggested by the Attorney General’s office (amendments solicited by Lt. Gov. Dewhurst to make the bill as impervious as possible to a facial constitutional attack), it will no longer be possible to prosecute TSA agents who execute full-body pat downs without probable cause unless such searches are first declared “Constitutionally Unreasonable”.
Under the amended language, HB 41 is no longer a legislative declaration that such actions are unconstitutional and criminal. Instead, the amended bill leaves the issue of constitutionality to be determined by the courts, with the burden of proof shifted to the one who experienced the “sexual assault.” While this amendment certainly makes the bill more impervious to Federal attack on constitutional grounds, it does so by surrendering the entire battle.
“If we believe that travelers being touched in their private parts without probable cause is unconstitutional, then we must not be afraid to say it, to codify it, and to hold actors who violate this standard accountable with the force of law,” remarked Wesley Strackbein, co-founder of TsaTyranny.com.
“The nature of confrontation is to confront — not appease — and we should not adopt language in the TSA Anti-Groping Bill that concedes the constitutional high ground at the outset of the battle,” Strackbein added. “The sanctity of innocent men, women, and children hangs in the balance. We owe it to them to fight for their rights, rather than to willfully disarm ourselves to placate bureaucrats who are running roughshod over our constitutional liberties.”
Don Hart, Esq. Founder and President of Heritage Defense (an advocacy group for Family rights against government intrusion) contributed in authoring the original legislation. Hart stated the following regarding the proposed amendment described above:
In my opinion, it is clear that the amended bill will bar the state of Texas from taking action against the TSA until their invasive screening procedures are declared unconstitutional. Accordingly, the bill may encourage and empower the TSA to continue in the very actions the bill is supposed to curtail without fear of reprisal until a court declares such actions unconstitutional. The TSA may proceed as usual without fear of prosecution under the statute, secure in the knowledge that Texas has voluntarily tied its own hands unless and until the TSA’s actions are declared unconstitutional.
The TSA may well be emboldened to be more aggressive and inappropriate with Texans since Texas has conceded that it will do nothing until such a constitutional determination is made. Accordingly, the TSA may well be more confident in its position, and Texans will be less safe from the abuses the bill is supposed to discourage since Texas has said it will only prosecute the TSA if a federal court says Texas may do so by declaring the TSA’s actions unconstitutional. Of course, such a declaration would obviously render the bill almost entirely moot anyway.
Whether a misinformed concession to Federal authority, a symbolic gesture, or a politically motivated effort to appear to take action about the TSA while doing nothing substantive in an effort to pacify the outrage of Texans about TSA abuses, the consequences of the bill may very well be harmful. The bill is not merely symbolic. It puts Texans in greater danger of abuse. Moreover, it shifts the burden to Texas to prove a constitutional violation in the context of a criminal statute. This is a more difficult burden than simply challenging the TSA’s actions as unconstitutional, either facially or as they are being applied.
Lt. Colonel John Eidsmoe, USAF (Retired), Counsel for Foundation of Moral Law and Professor of Oak Brook College of Law and Government Policy, took issue with the changes recommended by the Attorney General’s office:
Eidsmoe then called on Texas to take leadership in opposing federal overreach:
The claimed powers of the federal government are being expanded at the expense of the states, in ways that the nation’s Founding Fathers would never have condoned. This trend will continue, unless states take a stand and reassert their authority to protect their citizens’ rights against federal abuses. Texas is a large and influential state. If Texas leads the way, I believe other states will follow. (Lt. Col. John Eidsmoe – TSA Anti-Groping Bill Amendment Opinion)
Bradley Pierce, family rights activist and Attorney, was a contributor to the early versions of HB 41. Pierce made the following observations:
The amendments make it clear to TSA screeners that they may continue to operate in an unconstitutional manner until the Fifth Circuit or U.S. Supreme Court says otherwise. Moreover, instead of the burden being on the TSA to prove that their actions are constitutional, the burden will now be on the State of Texas to prove, beyond a reasonable doubt, that the TSA’s actions are unconstitutional and that the TSA screener knew his actions were unconstitutional when he performed them. As a result, the bill puts Texans in a worse position than no bill at all.
The amended bill implicitly declares that the State of Texas has no voice in what is and is not constitutional, and that the federal government must choose to restrain itself if we are to be free.
Other amendments have been suggested which would also dramatically weaken the bill, if adopted. One example insisted on by Speaker Joe Straus would establish that TSA agents be permitted to exercise a “reasonable suspicion” standard of review (a standard created by case law for police officers which is applied by far better trained personnel in circumstances far more dangerous than TSA agents encounter manning a gate with X-Ray machines and metal detectors). This would permit the TSA to use their judgment to require a search if they held the judicially created “reasonable suspicion” rather than the constitutionally mandated standard of Probable Cause. This amendment also weakens the bill unwisely and unnecessarily and is opposed by TsaTyranny.com. While Rep. Simpson agreed to compromises on other amendments, he thankfully stood firm in maintaining the standard of probable cause in the bill.
“We appreciate Rep. Simpson and Sen. Patrick’s willingness to take on the issue of TSA abuse in Texas,” commented Strackbein. “We urge that they not cave now to demands made on them to neuter the TSA Anti-Groping bill. It would be better to go down fighting for a bill that upholds the Constitution than to have an empty ‘win’ that gives further credence to tyranny.”
In light of these recent amendments to HB 41 — changes which entirely strip the proposed TSA Anti-Groping bill of any firm constitutional defense of the sanctity of Texans’ bodies or the security of their persons, and which remove the ability for the State of Texas to effectively prosecute the TSA for intimate pat-downs without probable cause — TsaTyranny.com no longer supports Texas HB 41. TsaTyranny.com further believes HB 41, in its present form, will only affirm and embolden TSA officials in their abusive procedures and hinder prosecutors from holding them accountable. Consequently, TsaTyranny.com opposes the present wording of HB 41 and withdraws support of the bill until the compromise language is removed.
TsaTyranny.com will focus its efforts in the remaining days of the Special Session in Texas on encouraging passage of legislation which truly protects Texans and holds the TSA accountable for illegal and unconstitutional invasions of the bodies of law-abiding citizens.