Aaron Tobey v. Terri Jones

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AARON TOBEY, 
Plaintiff-Appellee,
v.
TERRI JONES, individually and in
her official capacity as a
Supervisory Transportation
Security Officer with the
Transportation Security
Administration of the Department
of Homeland Security; REBECCA
SMITH, individually and in her
official capacity as a
Transportation Security Officer
with the Transportation Security  No. 11-2230
Administration of the Department
of Homeland Security,
Defendants-Appellants,
and
QUENTIN TRICE, individually and in
his official capacity as Chief of
Police of the Richmond
International Airport Police;
CALVIN VANN, individually and in
his capacity as an officer of the
Richmond International Airport
Police; ANTHONY MASON,

2 TOBEY v. JONES
individually and in his official 
capacity as an officer of the
Richmond International Airport
Police; JEFFREY KANDLER,
individually and in his official
capacity as an officer of the
Richmond International Airport
Police; JANET NAPOLITANO, in her
official capacity as Secretary of
Homeland Security; JOHN S.
PISTOLE, in his official capacity as
Administrator, Transportation
Security Administration; CAPITAL
REGION AIRPORT COMMISSION;

VICTOR WILLIAMS, in his official
capacity as Director of Public
Safety and Operations, Richmond
International Airport Police; JANE
DOE, individually and in her
official capacity as a TSA
Checkpoint Manager with the
Transportation Security
Administration of the Department
of Homeland Security,
Defendants.

TOBEY v. JONES 3
AARON TOBEY, 
Plaintiff-Appellee,
v.
JANE DOE, individually and in her
official capacity as a TSA
Checkpoint Manager with the
Transportation Security
Administration of the Department
of Homeland Security,
Defendants-Appellants,
and
QUENTIN TRICE, individually and in
his official capacity as Chief of  No. 11-2276
Police of the Richmond
International Airport Police;
CALVIN VANN, individually and in
his capacity as an officer of the
Richmond International Airport
Police; ANTHONY MASON,
individually and in his official
capacity as an officer of the
Richmond International Airport
Police; JEFFREY KANDLER,
individually and in his official
capacity as an officer of the
Richmond International Airport
Police; REBECCA SMITH,

4 TOBEY v. JONES
individually and in her official 
capacity as a Transportation
Security Officer with the
Transportation Security
Administration of the Department
of Homeland Security; JANET
NAPOLITANO in her official capacity
as Secretary of Homeland
Security; JOHN S. PISTOLE, in his
official capacity as Administrator,
Transportation Security

Administration; CAPITAL REGION
AIRPORT COMMISSION; VICTOR
WILLIAMS, in his official capacity
as Director of Public Safety and
Operations, Richmond
International Airport Police; TERRI
JONES, individually and in her
official capacity as a Supervisory
Transportation Security Officer
with the Transportation Security
Administration of the Department
of Homeland Security,
Defendants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:11-cv-00154-HEH)
Argued: October 24, 2012
Decided: January 25, 2013
Before WILKINSON, GREGORY, and DUNCAN,
Circuit Judges.
TOBEY v. JONES 5
Affirmed by published opinion. Judge Gregory wrote the
majority opinion, in which Judge Duncan joined. Judge
Wilkinson wrote a dissenting opinion.
COUNSEL
ARGUED: August E. Flentje, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellants.
Anand Agneshwar, ARNOLD & PORTER, LLP, New York,
New York, for Appellee. ON BRIEF: Tony West, Assistant
Attorney General, Douglas N. Letter, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellants. James J. Knicely, Robert Luther III, KNICELY &
ASSOCIATES, P.C., Williamsburg, Virginia; Alan C. Veron-
ick, ARNOLD & PORTER, LLP, New York, New York;
John W. Whitehead, Douglas R. McKusick, THE RUTHER-
FORD INSTITUTE, Charlottesville, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
Aaron Tobey alleges he was retaliated against for exercis-
ing his First Amendment rights when at Richmond Interna-
tional Airport (RIC), Transportation Security Administration
(TSA) agents and RIC police seized and arrested him for dis-
playing the text of the Fourth Amendment to the United States
Constitution on his chest. Seeking to vindicate his rights, Mr.
Tobey brought an action in the United States District Court
for the Eastern District of Virginia against the RIC police and
TSA agents, alleging violations of his First, Fourth, and Four-
teenth Amendment Equal Protection Clause rights. The TSA
agents moved to dismiss the claims, asserting qualified immu-
nity. The district judge sustained the motion as to the Fourth
6 TOBEY v. JONES
and Fourteenth Amendment claims, but denied the motion for
the First Amendment claim. The TSA agents appeal the denial
to this Court and are the only parties to this appeal. Because
we find the facts as alleged by Mr. Tobey plausibly set forth
a claim that the TSA agents violated his clearly established
First Amendment rights, we affirm the district court’s deci-
sion.
I.
From the outset we must underscore that this case is before
us on appeal from denial of a Fed. R. Civ. P. 12(b)(6) motion
to dismiss. Therefore, the facts set forth are from the vantage
point of Mr. Tobey, with all reasonable inferences drawn in
his favor. See Jenkins v. McKeithen, 395 U.S. 411, 421-22
(1969); Republican Party of North Carolina v. Martin, 980
F.2d 943, 952 (4th Cir. 1992).
A.
Following the September 11, 2001 terrorist attacks, Con-
gress created the Transportation Security Administration.
TSA is tasked with maintaining the security of commercial air
travel. TSA agents screen and search airline passengers at air-
ports, randomly selecting certain passengers for enhanced sec-
ondary screening. Under the then-current enhanced secondary
screening policies, passengers had a choice of submitting to
either an Advanced Imaging Technology (AIT) scan or a full-
body pat down. The purpose of TSA’s procedures was limited
to finding "explosives, incendiaries, weapons or other items
and screening to ensure that an individual’s identity is appro-
priately verified and checked against government watch lists."
TSA Management Directive No. 100.4 (Sept. 1, 2009).
On December 30, 2010, Aaron Tobey was scheduled to fly
from Richmond to Wisconsin to attend his grandfather’s
funeral. Mr. Tobey waited until there was a short line at the
TSA screening checkpoint and then commenced the screening
TOBEY v. JONES 7
process by presenting his boarding pass and identification to
the pre-screening agent. Mr. Tobey proceeded to the conveyor
belt area and placed his belt, shoes, sweatshirt, and other
carry-on items on the conveyor. Mr. Tobey was then diverted
by Appellant-Agent Smith from the standard metal detector
used as the primary screening apparatus to the AIT scanning
unit for enhanced screening.
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 con-
veyor 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 unconstitu-
tional.
At this point, Agent Smith radioed for assistance. As com-
manded 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
8 TOBEY v. JONES
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 Common-
wealth Attorney for Henrico County subsequently dropped
the disorderly conduct charge.
B.
On March 11, 2011, Mr. Tobey sued Agents Jones, Smith,
and the RIC police officers under 42 U.S.C. § 1983 (state
agents) and Bivens v. Six Unknown Named Agents for the Fed.
Bureau of Narcotics, 403 U.S. 388 (1974) (federal agents), for
depriving him of his (1) Fourth and Fourteenth Amendment
Rights (Count One); (2) First and Fourteenth Amendment
Rights (Count Two); and (3) Fourteenth Amendment Equal
Protection Rights (Count Three).1
On June 27, 2011, Appellants Jones and Smith moved to
dismiss all three claims. On August 30, 2011, the district
court granted the motion with respects to Counts One and
Three. In dismissing the Fourth Amendment claim, the court
explained that: Tobey’s "bizarre" behavior gave rise to further
police inquiry; "[g]iven the heightened security interest at air-
port security checkpoints . . . it was eminently reasonable for
1
Mr. Tobey filed a Second Amended Complaint on October 7, 2011,
alleging all three claims asserted in the initial complaint against Appellant-
Agent Doe. Agent Doe moved to dismiss on November 15, 2011, and the
court issued the same ruling as it had made to Agents Smith and Jones.
TOBEY v. JONES 9
Smith and Jones to seek assistance from the RIC police."
Tobey v. Napolitano, 808 F. Supp. 2d 830, 850 (E.D. Va.
2011).
The Equal Protection Clause claim was dismissed because
the "complaint makes no reference to any other passengers
who stripped off their clothes—much less passengers who
began stripping down and continued to do so even after being
told by a [TSA Agent] that it was unnecessary—or otherwise
launched a protest inside the screening area." Id. at 849.
The district court, however, declined to dismiss Mr.
Tobey’s First Amendment claim. The court held that because
there is a question of "whether the [TSA Agents] in fact
radioed for assistance because of the message Plaintiff sought
to convey or because of some other reasonable restriction on
First Amendment activity in the security screening area," dis-
missal on the basis of qualified immunity would be improper.
Id. at 850.
On October 31, 2011, Appellants appealed the district court
decision denying their motion to dismiss the First Amend-
ment claim. Appellants argue that Mr. Tobey did not allege a
facially valid First Amendment claim and even if he did, qual-
ified immunity bars such a claim because they did not violate
a clearly established constitutional right.
II.
Qualified immunity "shield[s] [officials] from civil dam-
ages liability as long as their actions could reasonably have
been thought consistent with the rights they are alleged to
have violated." Anderson v. Creighton, 483 U.S. 635, 638
(1987); see also Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
To determine whether Mr. Tobey’s complaint should survive
a qualified immunity-based motion to dismiss, we exercise
our "sound discretion" in following the two-step inquiry laid
out in Saucier by analyzing one, whether a constitutional vio-
10 TOBEY v. JONES
lation occurred, and two, whether the right violated was
clearly established. See Pearson, 555 U.S. at 236; Saucier,
533 U.S. at 200; Melgar v. Greene, 593 F.3d 348, 353 (4th
Cir. 2010). We review a qualified immunity-based motion to
dismiss de novo. Melgar, 593 F.3d at 353.
A.
As a threshold matter, before addressing whether Mr.
Tobey asserted a plausible First Amendment violation in his
complaint, we must correct an erroneous conclusion reached
by the district court. Reviewing the record afresh, we find that
the district court erred in concluding Mr. Tobey failed to
plead Appellants in some way caused his arrest. Tobey v.
Napolitano, 808 F. Supp. 2d at 850. The district court opined
that Mr. Tobey’s complaint "is devoid of any facts suggesting
that [Appellants]—neither of whom are law enforcement offi-
cers with the power of arrest—made any such assertion or
otherwise indicated to the RIC police that Plaintiff should be
arrested." Id. The district court further noted that "Plaintiff’s
counsel conceded that the Complaint ‘doesn’t say directly that
[Plaintiff’s arrest] was at the instruction of the TSA.’" Id. at
n.22 (citing Tr. 27:11-12). Fortunately for Mr. Tobey, he was
not required to state these precise magical words in order to
plausibly plead that Appellants caused his arrest. The
Supreme Court reiterated in Bell Atlantic Corp. v. Twombly
that a "formulaic recitation of the elements of a cause of
action will not do." 550 U.S. 544, 555 (2007) (citing Papasan
v. Allain, 478 U.S. 265, 268 (1986)). Allegations have facial
plausibility "when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
As the Supreme Court explained, Section 1983 (and by
association Bivens) anticipates that a government official will
be "responsible for the natural consequences of his actions."
Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (quoting Mon-
TOBEY v. JONES 11
roe v. Pape, 365 U.S. 167, 187 (1961)); see also Berg v.
County of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) ("A
government official’s liability for causing an arrest is the
same as for carrying it out." (internal quotation marks omit-
ted)). It is an undoubtedly natural consequence of reporting a
person to the police that the person will be arrested; especially
in the scenario we have here, where TSA and RIC police act
in close concert. So long as Mr. Tobey’s complaint rendered
it plausible that Appellants helped effectuate his arrest, the
district court should have factored the arrest into its decision
as to whether Mr. Tobey alleged plausible Bivens claims
against Appellants.
When looking at Mr. Tobey’s complaint and drawing all
reasonable inferences in his favor, it is logical to assume that
Appellants had a hand in his arrest. Mr. Tobey announced to
Appellants his desire to peacefully protest TSA screening
measures, and at that point, Appellants "radioed for assis-
tance." Immediately thereafter, RIC police "seized and hand-
cuffed" Mr. Tobey from behind without further inquiry. It is
reasonable to infer that whatever Appellants told RIC police
caused Mr. Tobey’s arrest. This inference is bolstered by the
fact that Appellants silently stood by and watched RIC police
arrest Mr. Tobey. The fact that Appellants do not have the
power of arrest does not hurt Mr. Tobey, but helps him, as
one can infer that Appellants radioed RIC police to arrest Mr.
Tobey as they could not do it themselves. It may bear out
after further discovery that Appellants radioed for assistance
for innocuous reasons. It may also bear out that Appellants
indicated to RIC police that they should arrest Mr. Tobey. Mr.
Tobey’s complaint raises a plausible inference that Appellants
caused his arrest, and thus it was improper for the district
court to find otherwise at the 12(b)(6) phase of litigation. The
district court should have considered the entire course of
events up to arrest when deciding whether to dismiss Mr.
Tobey’s Bivens actions against Appellants.
With that said, for the purposes of reviewing the plausibil-
ity of Mr. Tobey’s First Amendment claim, we will assume
12 TOBEY v. JONES
that Appellants’ liability carries through to arrest, although
further discovery may prove this not to be the case. Moreover,
the district court’s reasoning as to why qualified immunity
bars Mr. Tobey’s Fourth Amendment claim or why Mr.
Tobey’s First Amendment claim survives a 12(b)(6) motion
to dismiss has no sway on our decision, as both decisions
were based in part on the erroneous conclusion that Appel-
lants cannot be liable for Mr. Tobey’s arrest. Having clarified
this initial matter, we can now look at the facts and allegations
in Mr. Tobey’s complaint with unfettered freshness, as
required by de novo review.
B.
For Mr. Tobey’s First Amendment claim to survive a quali-
fied immunity-based 12(b)(6) motion to dismiss Mr. Tobey
must have plausibly alleged in his complaint that his constitu-
tional rights were violated. A cognizable First Amendment
retaliation claim requires a plaintiff to show: (1) "that [plain-
tiff’s] speech was protected"; (2) "defendant’s alleged retalia-
tory action adversely affected the plaintiff’s constitutionally
protected speech"; and (3) "a causal relationship exists
between [plaintiff’s] speech and the defendant’s retaliatory
action." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-
86 (4th. Cir. 2000).
A complaint need only "give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests."
Twombly, 550 U.S. at 555 (internal quotation marks omitted).
A Rule 12(b)(6) motion to dismiss "does not resolve contests
surrounding facts, the merits of a claim, or the applicability of
defenses." Martin, 980 F.2d at 952. Appellants argue Mr.
Tobey’s complaint did not adequately set forth a First
Amendment claim, and therefore must be dismissed. We dis-
agree.
Mr. Tobey’s complaint most certainly sets forth a valid
First Amendment retaliation claim. In his complaint, Mr.
TOBEY v. JONES 13
Tobey alleges the Appellants violated his First Amendment
rights by seizing him or causing his seizure, "without proba-
ble cause because of the message conveyed by [his] silent,
nonviolent expression of objection to the TSA’s screening
policies . . . ." He goes on to state that the Appellants "en-
gaged in content and/or viewpoint discrimination and
deprived [him] of his fundamental right to engage in free
speech . . . and to engage freely in political expression as
guaranteed by the First and Fourteenth Amendments to the
United States Constitution."
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.2 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 proxim-
ity of his peaceful protest and his arrest, unsupported by prob-
able 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 infer-
ence of retaliatory motive"). The factual allegations in the
complaint, viewed as a whole, have "facial plausibility" that
2
The dissent tellingly overlooks the critical fact that Mr. Tobey alleges
his arrest was directly preceded by his assertion to Appellants that he
removed his clothing to express his message of protest and his constitu-
tional views. By selecting facts that support its position, the dissent inac-
curately assesses Mr. Tobey’s constitutional claims.
14 TOBEY v. JONES
"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 pro-
tected First Amendment rights.
Appellants contend that Mr. Tobey has not pled a cogniza-
ble First Amendment claim because their actions were "rea-
sonable" given Mr. Tobey’s "bizarre" and "disruptive"
conduct. This argument stems from the Supreme Court’s rul-
ing in International Society for Krishna Consciousness, Inc.
v. Lee, 505 U.S. 672 (1992), in which the Court held that the
government can impose reasonable restrictions on speech in
an airport given that it is a nonpublic forum. Id. at 683.
Even conceding that Mr. Tobey’s behavior was "bizarre,"
bizarre behavior alone cannot be enough to effectuate an
arrest. If Appellants caused Mr. Tobey’s arrest solely due to
his "bizarre" behavior, Appellants’ cannot be said to have
acted reasonably. This is especially the case given that the
First Amendment protects bizarre behavior. See Spence v.
Washington, 418 U.S. 405, 410 (1974) (per curiam).3 Woven
3
The dissent attempts to limit the scope of Mr. Tobey’s protest by refer-
ring to the removal of his clothes as "separately identifiable conduct." Post
at 37. What the dissent fails to understand is that Mr. Tobey removed his
clothes as part of his message of protest; as a result, the dissent misappre-
hends the application of Spence. See post at 37-38. In exact accordance
with Spence, Mr. Tobey had a specific "intent to convey a particularized
message" by removing his clothes, which would have been glaringly
apparent to "[the Appellants] who viewed it." Spence, 418 U.S. at 410-11.
At the time of the incident, there was widespread uproar over the use of
AIT scans. See Phil Gast, Growing Backlash against TSA Body Scanners,
Pat-downs, CNN Travel, (Nov. 13, 2010, 8:39 PM), http://www.cnn.com/
2010/TRAVEL/11/12/travel.screening/index.html. Mr. Tobey removed his
TOBEY v. JONES 15
into our constitutional freedoms is the belief in autonomy and
the celebration of difference. For us to hold today that it is
reasonable to cause an arrest due to bizarre behavior and noth-
ing more would violate the most basic tenents of our Constitu-
tion.
Further, contrary to Appellants’ assertions, bizarre does not
equal disruptive. Whether Mr. Tobey was in fact "disruptive"
is a disputed question of fact at this juncture. Appellants seem
to think that removing clothing is per se disruptive. We beg
to differ. Passengers routinely remove clothing at an airport
screening station, and in fact are required to do so by TSA
regulations. It is just as reasonable that Mr. Tobey calmly tak-
ing off his t-shirt and sweatpants caused no disruption at all,
especially since he was never asked to put his clothes back on.
And because we are reviewing the facts at the 12(b)(6) phase
of litigation, we must view the facts in the light most favor-
able to Mr. Tobey. It could be perfectly true that after further
factual development a court could find that Appellants acted
reasonably given Mr. Tobey’s conduct. Perhaps Mr. Tobey
took off his shirt, twirled it around his head, and ripped off his
pants with a dramatic flourish, indeed causing a great specta-
clothes in protest of TSA using AIT scanners because the machines, in
essence, perform a ‘virtual strip search.’ With this general background, it
would be hard to insist, as the dissent inexplicably does, that Appellants
"miss[ed] the drift" of Mr. Tobey’s "bizarre" behavior, particularly as Mr.
Tobey told Appellants that he removed his clothing to convey his message
of protest. See Spence, 418 U.S. at 410. Directly in line with Spence,
therefore, "the nature of [Mr. Tobey’s] activity, combined with the factual
context and environment in which it was undertaken, lead to the conclu-
sion that he engaged in a form of protected expression." 418 U.S. at 409-
10. Spence stands for the proposition that "bizarre" behavior in the correct
context can be protected expression under the First Amendment. Id. at
409-10. Mr. Tobey’s removal of his clothing, along with his statement of
protest and the Fourth Amendment on his chest, moves his allegations
beyond simply "bizarre" behavior into the realm of constitutionally pro-
tected expression.
16 TOBEY v. JONES
cle. However, we cannot, from this record at the 12(b)(6)
stage, make this factual conclusion.
At bottom, we are not persuaded by the Appellants’ reason-
ableness argument. The question of reasonableness is a fact-
intensive inquiry, going directly to the heart of the case. In
Cornelius v. NAACP Legal Defense and Education Fund,
Inc., the Supreme Court held that the "reasonableness of the
Government’s restriction [in] a nonpublic forum must be
assessed in the light of the purpose of the forum and all the
surrounding circumstances." 473 U.S. 788, 809 (1985). Based
on Mr. Tobey’s complaint, it is unclear whether Appellants’
behavior was reasonably motivated by Mr. Tobey’s "disrup-
tive" conduct or unreasonably motivated by his protected pro-
test. What is reasonable in this context, therefore, requires
greater factual development and is better decided once discov-
ery has been conducted. See Martin, 980 F.2d at 952;
DiMeglio v. Haines, 45 F.3d 790, 795 (4th Cir. 1995)
("[W]here there is a material dispute over what the defendant
did . . . it may be that the qualified immunity question cannot
be resolved without discovery.").
In a similar vein, Appellants maintain that Mr. Tobey can-
not plead a First Amendment violation because the alleged
misconduct was consistent with a lawful TSA response.
Appellants make this claim without pointing to a single regu-
lation or law that permits seizure and arrest for the removal
of an outer-layer of clothing or prohibits the display of a
peaceful, non-disruptive message of protest.
The relevant TSA regulations state that "no person may
interfere with . . . [TSA] screening personnel in the perfor-
mance of their duties," 49 C.F.R. § 1540.109; and "[n]o per-
son may . . . attempt to circumvent . . . any security system,
measure, or procedure," 49 C.F.R. § 1540.105. Based on the
facts alleged in his complaint, Mr. Tobey violated neither of
these regulations. Although Appellants repeatedly mention
Mr. Tobey’s "disruptive" behavior as the impetus for the
TOBEY v. JONES 17
arrest, Mr. Tobey specifically alleges that he did not circum-
vent security measures nor did he disrupt the screening pro-
cess. Mr. Tobey attempted to submit to the enhanced
screening procedures. He never violated an express instruc-
tion of the Appellants. In a sense, Mr. Tobey aided in Appel-
lants’ search for contraband by removing his t-shirt and
sweatpants—at this point there were very few places he could
have been hiding anything. Mr. Tobey was simply showing
Appellants what they sought to see by using the AIT scanning
machine. There is nothing before the Court at the 12(b)(6)
phase that indicates Mr. Tobey removing his sweatpants and
t-shirt caused any interference, disruption, or delay, in viola-
tion of any TSA regulation.
Appellants seem to think the district judge’s finding of no
Fourth Amendment violation controls our First Amendment
analysis. As stated above, however, bizarre behavior alone is
not enough to effectuate an arrest. See supra p. 14. Further-
more, the district court’s Fourth Amendment holding is
undermined by its erroneous conclusion that Appellants’ can-
not be found liable for Mr. Tobey’s arrest. See supra pp. 10-
12. Additionally, the idea that we are bound by the district
court’s rationale violates the principle of de novo review. See
Melgar, 593 F.3d at 353. De novo review mandates that we
consider the complaint and nothing more, and draw all rea-
sonable inferences therefrom in favor of Mr. Tobey. And as
a practical matter, it would be imprudent for us to base our
decision on the district court’s Fourth Amendment findings
given that the decision is not before us and eventually can be
appealed. For us to base our holding on the reasoning of an
interlocutory order would be nonsensical—akin to building a
house on a lot comprised of quicksand. It is illogical for us to
look at the district court’s Fourth Amendment findings given
that Mr. Tobey still has the opportunity to appeal that deci-
sion; should the district court’s dismissal of Mr. Tobey’s
Fourth Amendment claim be reversed, our holding today
would be undermined. While we understand the First and
Fourth Amendment claims are closely linked, to prejudice Mr.
18 TOBEY v. JONES
Tobey on the basis of an interlocutory order that he has not
yet had the opportunity to appeal is untenable. See Baird v.
Palmer, 114 F.3d 39, 42-43 (4th Cir. 1997) ("[T]he collateral
order doctrine does not confer appellate jurisdiction over an
order dismissing claims against a defendant on the basis of
qualified immunity, where other claims remain pending in the
district court.")4; see also 28 U.S.C. § 1291.
Therefore, the district court’s decision to dismiss Mr.
Tobey’s Fourth Amendment claim is inconsequential to this
Court’s finding that Mr. Tobey asserted a plausible First
Amendment claim. Again, viewing the facts in the light most
favorable to Mr. Tobey, we find that it is unsettled whether
his behavior was in fact "disruptive" or that it was "eminently
reasonable" to effectuate an arrest based on his conduct in
spite of the text of the Fourth Amendment written on his chest.5
Thus, Mr. Tobey’s First Amendment claim properly survives
the motion to dismiss.
Appellants also raise the argument that Mr. Tobey’s com-
plaint is deficient because it does not adequately allege that
4
Mr. Tobey was not required to cross-appeal the district court’s dis-
missal of his Fourth and Fourteenth Amendment claims, as our pendent
jurisdiction is limited, and should only be used in extraordinary circum-
stances. See, e.g., Coleman v. Parker, 349 F.3d 534, 537 (8th Cir. 2003)
(holding that qualified immunity-based cross-appeal does not fall within
the court’s collateral order jurisdiction or within the court’s pendent appel-
late jurisdiction).
5
Moreover, even if we agreed with the district court’s characterization
of Appellants’ actions as "eminently reasonable" for purposes of the
Fourth Amendment, Appellants cite no authority for its argument that gov-
ernment action that is reasonable within the meaning of the Fourth
Amendment is necessarily therefore reasonable for purposes of First
Amendment analysis. If anything, the Supreme Court has suggested a
more exacting inquiry under the First Amendment. See Zurcher v. Stan-
ford Daily, 436 U.S. 547, 564 (1978) ("Where the materials sought to be
seized may be protected by the First Amendment, the requirements of the
Fourth Amendment must be applied with ‘scrupulous exactitude.’" (quot-
ing Stanford v. Texas, 379 U.S. 476, 485 (1965)).
TOBEY v. JONES 19
his arrest was caused by the message of protest he sought to
convey. To be sure, causation is a requirement of a First
Amendment retaliation claim. See Huang v. Bd. of Governors
of Univ. of N.C., 902 F.3d. 1134, 1140 (4th Cir. 1990). As we
said in Huang, "[t]he causation requirement is rigorous; it is
not enough that the protected expression played a role or was
a motivating factor in the retaliation; claimant must show that
‘but for’ the protected expression the [government official]
would not have taken the alleged retaliatory action." Id. What
Appellants conveniently overlook, however, is that Huang
was before the Court on appeal from a grant of summary
judgment. Viewing all facts as alleged by Mr. Tobey as true,
which is the posture we must take when reviewing a 12(b)(6)
motion, we can infer causation based on the facts, as Mr.
Tobey alleges the arrest was directly precipitated by his con-
stitutionally protected peaceful protest—Appellants did not
take action until after he informed them that he wished to dis-
play his chest in order to express his views on the constitu-
tionality of TSA screening measures. Again, it may turn out
after further discovery that Mr. Tobey cannot meet this "rigor-
ous" requirement, but without further discovery, we are
unable and unwilling to speculate as to the outcome.
We are satisfied, therefore, that Mr. Tobey adequately set
forth a plausible claim that his First Amendment rights were
violated by Appellants.
III.
We must next decide whether Mr. Tobey’s First Amend-
ment rights were clearly established. See Anderson, 483 U.S.
at 638. When deciding whether a right is clearly established,
we ask "whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted."
Henry v. Purnell, 652 F.3d 524, 534 (4th Cir. 2011) (en banc)
(quoting Saucier, 553 U.S. at 202).
20 TOBEY v. JONES
A.
A bedrock First Amendment principle is that citizens have
a right to voice dissent from government policies. See Mills
v. Alabama, 384 U.S. 214, 218 (1966) ("Whatever differences
may exist about interpretations of the First Amendment, there
is practically universal agreement that a major purpose of that
Amendment was to protect the free discussion of governmen-
tal affairs."). This principle transcends forums, as the
Supreme Court announced that "nondisruptive speech—such
as the wearing of a T-shirt or a button that contains a political
message may not be ‘airport related,’ but it is still protected
speech even in a nonpublic forum." Board of Airport
Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482
U.S. 569, 576 (1987). Therefore, in a nonpublic forum such
as an airport, a government official cannot "suppress expres-
sion merely because [they] oppose the speaker’s view."
United States v. Kokinda, 497 U.S. 720, 721 (1990) (quoting
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 46 (1983)); Arkansas Educ. Television Comm’n v. Forbes,
523 U.S. 666, 677-78 (1998) (quoting Cornelius, 473 U.S. at
800)).
Our precedent bolsters the Supreme Court’s resounding
pronouncements. We have held that "[i]t is well established
that a public official may not misuse his power to retaliate
against an individual for the exercise of a valid constitutional
right." Trulock, 275 F.3d at 406 (citing Suarez, 202 F.3d at
685). We further declared that "the First Amendment prohib-
its an officer from retaliating against an individual for speak-
ing critically of the government." Id.Taken together, it is crystal clear that the First Amendment
protects peaceful nondisruptive speech in an airport, and that
such speech cannot be suppressed solely because the govern-
ment disagrees with it. Thus, Mr. Tobey’s right to display a
peaceful non-disruptive message in protest of a government
TOBEY v. JONES 21
policy without recourse was clearly established at the time of
his arrest.6
B.
Appellants argue that because there is no case on-point
detailing what is a reasonable restriction on speech in an air-
port screening area, Mr. Tobey’s constitutional rights cannot
be said to have been clearly established. They argue the only
binding precedent, Krishna, states "restrictions on speech [at
airport terminals] . . . need only satisfy a standard of reason-
ableness," 505 U.S. at 677, and that a general standard of
"reasonableness" does not provide sufficient guidance as to
the contours of constitutional rights. See Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2084 (2011) ("The general proposition, for
example, that an unreasonable search or seizure violates the
Fourth Amendment is of little help in determining whether the
violative nature of the particular conduct is clearly estab-
lished.").
While reasonableness in and of itself may be an ineffective
guide as to whether a right is "clearly established," in this case
there are clear constitutional parameters. It may be unclear as
to what reasonableness entails in the abstract, but at a mini-
mum, given well-established precedent, we know that it is
unreasonable to effect an arrest without probable cause for
6
The dissent correctly notes that "officials can still be on notice that
their conduct violates established law even in novel factual circum-
stances." Post at 29 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
In a contradictory turn of events, however, the dissent repeatedly asserts
that the lack of precedent undermines Mr. Tobey’s claim. See post at 26,
27, 28, 29, 30, 33, 36. Thus, even though the dissent purports to under-
stand factually analogous precedent is not a prerequisite for finding that
a right is clearly established, the entire dissent seemingly hinges on this
very premise. Moreover, the unequivocal constitutional precedent pro-
vided Appellants with more than adequate notice that they cannot retaliate
against Mr. Tobey for exercising his First Amendment rights. This is not
an abstract principle but an irrefutable precept.
22 TOBEY v. JONES
displaying a silent, nondisruptive message of protest—which
is what allegedly occurred here. Appellants even conceded at
oral argument that it would have clearly been unlawful for
them to seize Mr. Tobey if the text of the Fourth Amendment
was printed on his t-shirt. We see no reason why the same
clear principle should not apply here, as Mr. Tobey’s allega-
tions amount to the factual equivalent.
Appellants cite Reichle v. Howards, 132 S. Ct. 2088 (2012)
as supporting their argument that Mr. Tobey’s constitutional
rights were not clearly established, but in doing so, miss the
mark completely. In Reichle, an appeal from summary judg-
ment, the Supreme Court found that it was not clearly estab-
lished that a plaintiff could make out a cognizable First
Amendment claim for an arrest that was supported by proba-
ble cause. Id. at 2097. Reichle does not apply here because
Mr. Tobey specifically alleges that his arrest was not sup-
ported by probable cause, and "probable cause or its absence
will be at least an evidentiary issue in practically all [ ] cases."
Hartman v. Moore, 547 U.S. 250, 265 (2006). At this stage
in the litigation, of course, we must credit Mr. Tobey’s allega-
tion that Appellants arrested or caused him to be arrested
without probable cause. He has, therefore, satisfied the
requirement in Hartman and Reichle to plead an absence of
probable cause.
Appellants also cite Rendon v. Transportation Security
Administration, 424 F.3d. 475 (6th Cir. 2005), as controlling
authority that First Amendment rights in the screening area of
an airport are not clearly established. This case is irrelevant
to the inquiry at hand because in that case the Sixth Circuit
grappled with the question of whether TSA Regulation 49
C.F.R. § 1540.109 was constitutionally overbroad, or whether
it violated the plaintiff’s constitutional rights as applied. In
Rendon, the plaintiff was being "uncooperative, unruly, and
using loud profanities" and therefore was cited for violating
TSA regulation 49 C.F.R. § 1540.109. 424 F.3d at 478. Ren-
don is factually distinct from what we have here. Mr. Tobey
TOBEY v. JONES 23
was peaceful, cooperative, and polite—this is presumably
why he was never cited for violating TSA regulations. The
TSA regulations are not at issue here.7
Given that peaceful, silent, nondisruptive protest is pro-
tected in a nonpublic forum, like an airport; that it is unequiv-
ocally clear that the government cannot effectuate an arrest
for the display of a message of peaceful protest; and that Mr.
Tobey’s arrest in this instance was allegedly not supported by
probable cause—we find that Mr. Tobey’s rights at the time
of his arrest were clearly established by decades-old prece-
dent.
IV.
While the sensitive nature of airport security weighs heav-
ily on the Court, protest against governmental policies goes
directly to the heart of the First Amendment. The First
Amendment symbolizes our "profound national commitment
to the principle that debate on public issues should be unin-
hibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials." New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964). Here, Mr. Tobey engaged
in a silent, peaceful protest using the text of our Constitu-
tion—he was well within the ambit of First Amendment pro-
tections. And while it is tempting to hold that First
Amendment rights should acquiesce to national security in
this instance, our Forefather Benjamin Franklin warned
against such a temptation by opining that those "who can give
up essential liberty to obtain a little temporary safety, deserve
7
Even if Rendon was on point, we normally will not look to other cir-
cuits in order to find that the law in our Circuit is not clearly established.
See, e.g., Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (en banc)
aff’d, 526 U.S. 603 (1999) (citing Cullinan v. Abramson, 128 F.3d 301,
311 (6th Cir. 1997), in which the Sixth Circuit explained that "[o]rdinarily,
at least, in determining whether a right is ‘clearly established’ this court
will not look beyond the Supreme Court and Sixth Circuit precedent").
24 TOBEY v. JONES
neither liberty nor safety." We take heed of his warning and
are therefore unwilling to relinquish our First Amendment
protections—even in an airport.
To be clear, we are not unreasonably tying the hands of
Appellants. There are certainly reasonable measures that they
could have taken to ensure safety, such as asking Mr. Tobey
about his intentions; fining Mr. Tobey for violating TSA regu-
lations if there was in fact one on point; turning Mr. Tobey
away from the line if he refused to put on his shirt; or most
simply, asking Mr. Tobey to put his shirt back on. Instead,
Appellants jumped straight to arrest, infringing upon Mr.
Tobey’s most basic liberty interest. The question of whether
Mr. Tobey’s conduct was so "bizarre" and "disruptive" that
Appellants’ reaction was reasonable or whether Mr. Tobey
was targeted because of the words on his chest cannot be
decided at the 12(b)(6) stage. It may be that discovery will
reveal there is no genuine issue of material fact. Should this
be the case, Appellants can move for summary judgment. See
Behrens v. Pelletier, 516 U.S. 299 (1996) (holding that a
defendant can raise the qualified-immunity defense at both the
motion to dismiss and summary judgment stage). However, at
this stage of the proceeding, we are satisfied that Mr. Tobey
has adequately pled that Appellants violated his clearly estab-
lished First Amendment rights.
V.
Consistent with the reasoning above, we affirm the district
court’s denial of Appellants’ qualified immunity-based
motion to dismiss of Mr. Tobey’s First Amendment claim.
AFFIRMED
TOBEY v. JONES 25
WILKINSON, Circuit Judge, dissenting:
I cannot join the majority’s decision permitting a damages
action to proceed against Transportation Security Administra-
tion ("TSA") agents who were faithfully performing one of
the most essential functions in our post-9/11 age: protecting
air passengers from the threat of air terrorism. We now view
these events in the comfort of hindsight. But while some may
consider plaintiff Aaron Tobey’s conduct to be cute or even
funny in retrospect, it was no laughing matter at the time.
According to the facts alleged in his complaint, Tobey
engaged in what his own counsel and the district court both
described as "bizarre" behavior in the security-screening area
of Richmond International Airport, removing his shirt and
pants despite being told that he did not need to disrobe. Tobey
v. Napolitano, 808 F. Supp. 2d 830, 850 (E.D. Va. 2011). His
"complaint makes no reference to any other passengers who
stripped off their clothes—much less passengers who began
stripping down and continued to do so even after being told
by a [TSA agent] that it was unnecessary—or otherwise
launched a protest inside the screening area." Id. at 849.
Airport screening procedures should, of course, be open to
debate and criticism. Had this protest been launched some-
where other than in the security-screening area, we would
have a much different case. But Tobey’s antics diverted
defendants from their passenger-screening duties for a period,
a diversion that nefarious actors could have exploited to dan-
gerous effect. Defendants responded as any passenger would
hope they would, summoning local law enforcement to
remove Tobey—and the distraction he was creating—from
the scene.
For their reasonable efforts to allow the regular screening
process to resume and to ensure passenger safety, defendants
have been rewarded with the protracted burdens of a lawsuit
and the prospect of significant damages liability. Given the
26 TOBEY v. JONES
way they have been treated, I would expect other TSA agents
to refrain from responding to some unknown quantum of
future security threats. And who could blame them?
The majority’s decision is not only unwise, but also pro-
foundly unfair. Imagine having to make repeated prompt
decisions—all while the lives of others just might hang in the
balance. Now imagine being hauled into court and threatened
with damages liability for those decisions, having never
received sufficient notice as to the legal standards by which
your conduct would be judged. Such is the deprivation of due
process that the majority countenances today.
There is, of course, a familiar legal doctrine designed to
avert the exactions of lawsuits like Tobey’s. For nearly forty
years, the Supreme Court has consistently held that govern-
ment officials performing discretionary functions enjoy quali-
fied immunity from damages actions so long as they do not
violate "clearly established" law. See, e.g., Pearson v. Calla-
han, 555 U.S. 223 (2009); Saucier v. Katz, 533 U.S. 194(2001); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Scheuer
v. Rhodes, 416 U.S. 232 (1974). The Court has, moreover,
repeatedly averred that qualified immunity is an immunity not
just from liability, but from suit, and that questions related to
such immunity should accordingly be resolved earlier rather
than later in the game. How sad that a message crafted so
plainly at the headwaters of a hierarchical judicial system has
failed to find its way downstream.
One would think the Supreme Court’s admonitions on the
need for some modicum of specificity in notice to defendants
might actually mean something. See, e.g., Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083-84 (2011); Anderson v. Creighton, 483
U.S. 635, 640 (1987). And yet, by allowing Tobey’s suit to
proceed by enunciating legal principles at the highest and
most nebulous level of generality, the majority deprives the
doctrine of its value. One would think that the uniquely sensi-
tive nature of a security-screening area might have figured in
TOBEY v. JONES 27
the majority’s analysis. Yet it cites not one—not even one—
case that would have afforded these agents anything resem-
bling fair notice of what might be expected of them in the sen-
sitive location and situation in which they found themselves.
The majority says long after the fact what it believes these
agents might have done, see ante at 24, but again it fails to
reference even a single case from the Supreme Court, this
court, or any other to support its view. If qualified immunity
was not created to keep suits like this one from gathering
steam, then I fail to see what utility the defense will have. I
regret that a doctrine so essential to the performance of public
functions has been reduced to hollow and formulaic recita-
tions that signal only its demise.
I.
The most unsettling aspect of this decision is that of scape-
goating low-level officials without ever apprising them of the
legal standards governing their conduct. In denying the immu-
nity, we are blindsiding others in a way we would never coun-
tenance for ourselves. Judges, after all, should appreciate the
difficulty of judgment.
By affording officials the latitude to make reasonable judg-
ments, qualified immunity helps to avert two evils. Subjecting
officials to damages actions when the governing law is
unclear would incur "substantial social costs," as "fear of per-
sonal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties." Anderson,
483 U.S. at 638. But qualified immunity is not premised on
a utilitarian calculus alone; it also seeks to prevent "the injus-
tice . . . of subjecting to liability an officer who is required,
by the legal obligations of his position, to exercise discretion."
Scheuer, 416 U.S. at 240.
I do understand that, like the proverbial Roman tax collec-
tor, TSA screening agents are not natural objects of affection.
It may seem a strange expenditure of energy strongly to
28 TOBEY v. JONES
defend them. Yet the most unpopular persons may not be
treated unfairly under law, and that is especially the case
when law itself has tasked them with the unpopular function
that nonetheless is necessary to the achievement of a larger
social good. The good of safe air travel seems too obvious to
mention. The very last way to achieve that good is to penalize
without a crumb of notice those who make it possible.
A straightforward application of the elementary principles
of qualified immunity leads inexorably to the conclusion that
this complaint must be dismissed. For the legal standard iden-
tified by Tobey and the majority as governing this case could
not possibly have provided adequate notice to defendants that
their alleged actions were unlawful. According to that stan-
dard, because an airport is a nonpublic forum, any regulation
restricting speech therein "need only be reasonable, as long as
the regulation is not an effort to suppress the speaker’s activ-
ity due to disagreement with the speaker’s view." Int’l Soc’y
for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679
(1992). This standard encompasses two prongs—a reason-
ableness requirement and a ban on viewpoint discrimination
—and though the majority repeatedly conflates them in its
analysis, they impose distinct requirements. Considering each
in turn, it becomes evident that no case law could possibly
have put defendants on notice that they could not respond to
Tobey’s conduct by defusing the situation as they did.
A.
Start with the requirement that restrictions on speech in a
nonpublic forum be "reasonable." The majority concedes that
a general reasonableness requirement does not in itself create
clearly established law sufficient to defeat a qualified-
immunity defense. Ante at 21 (citing al-Kidd, 131 S. Ct. at
2084 ("The general proposition, for example, that an unrea-
sonable search or seizure violates the Fourth Amendment is
of little help in determining whether the violative nature of
particular conduct is clearly established.")). This makes sense,
TOBEY v. JONES 29
of course, for how could an official possibly divine from a
general command to "be reasonable" specific standards of
conduct suited to the varied—and often unpredictable—
circumstances he or she might face?
Because a general reasonableness requirement is so vague,
Tobey and the majority must identify some case law that
would have given defendants fair notice that it would be
unreasonable to respond to his specific conduct by summon-
ing local law enforcement. Yet they fail to do so, ignoring the
Supreme Court’s admonition that courts must not "define
clearly established law at a high level of generality," al-Kidd,
131 S. Ct. at 2084, but rather must identify a constitutional
right that was "‘clearly established’ in a more particularized,
and hence more relevant, sense," Anderson, 483 U.S. at 640.
To be sure, "officials can still be on notice that their conduct
violates established law even in novel factual circumstances."
Hope v. Pelzer, 536 U.S. 730, 741 (2002). But in the absence
of some precedent addressing the scenario at issue, officials
will have sufficient notice only when "‘a general constitu-
tional rule already identified in the decisional law . . . appl-
[ies] with obvious clarity to the specific conduct in question.’"
Id. at 741 (emphases added) (quoting United States v. Lanier,
520 U.S. 259, 271 (1997)). What the majority fails to appreci-
ate is that qualified immunity requires "that in the light of pre-
existing law the unlawfulness must be apparent." Anderson,
483 U.S. at 640 (emphasis added).
General propositions stripped of all sense of context may
seem useful to my fine appellate colleagues, see ante at 21
n.6, but they are of no use at all to people who must confront
specific and difficult real-life situations. Neither Tobey nor
the majority points to a single court decision addressing a sit-
uation even remotely similar in time, place, or manner to the
one that occurred here, let alone a decision that would have
made the unlawfulness of defendants’ actions "apparent."
They cite no decision involving the period before scores of
passengers board airplanes, no decision involving the
30 TOBEY v. JONES
security-screening area of an airport, and no decision involv-
ing distracting conduct that poses a potential security threat.
Indeed, in the only appellate decision that even somewhat
resembles this case, the court ruled for the government defen-
dants, a ruling that would hardly have counseled defendants
to have acted in a different fashion than they did. See Rendon
v. TSA, 424 F.3d 475 (6th Cir. 2005). The complete dearth of
pertinent precedent should be dispositive of the question
whether it was clearly established that defendants’ conduct
was unreasonable: it was not.
Especially telling is the failure by Tobey and the majority
to cite a single case involving conduct that disrupts security-
screening activities, as Tobey’s conduct evidently did. The
majority finds it significant that Tobey’s complaint nowhere
explicitly alleges that his behavior caused any disruption but,
on the contrary, asserts that he "remained quiet, composed,
polite, cooperative, and complied with the requests of agents
and officers." Ante at 7. This statement, however, does not
render defendants’ alleged actions unreasonable. First, it is
belied by other allegations in the complaint. For example, as
the district court noted, Tobey "alleges that he began stripping
off his clothes inside the security screening area and contin-
ued to do so even after [one defendant] advised that removal
of clothing was unnecessary." Tobey, 808 F. Supp. 2d at 850.
Second, while it may be true that "[p]assengers routinely
remove clothing at an airport screening station," ante at 15,
they do not routinely doff their undershirts and bare their
chests; Tobey deliberately and indisputably removed much
more clothing than is consistent with ordinary TSA screening
practices. Needless to say, Tobey and the majority point to no
decision holding that it is unreasonable to detain someone
who fails to follow TSA instructions and proceeds in a man-
ner calculated to divert attention from the normal screening
process and redirect it toward himself.
In addition, whether or not Tobey caused a visible commo-
tion in the screening area—whether or not he "took off his
TOBEY v. JONES 31
shirt, twirled it around his head, and ripped off his pants with
a dramatic flourish, indeed causing a great spectacle," ante at
15-16—it is a simple matter of common sense that his behav-
ior was disruptive. See Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) ("Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense."). This inference follows ineluctably from the
face of the complaint. Outside a few limited contexts, such as
public swimming pools, removing one’s shirt and pants will
always attract other people’s attention and distract them from
whatever they happen to be doing. Tobey’s own counsel con-
ceded as much when he described his client’s behavior as "bi-
zarre," an impression that the district court evidently shared.
See Tobey, 808 F. Supp. 2d at 850 ("Plaintiff’s counsel con-
ceded at oral argument that Plaintiff’s behavior was bizarre,
and that [defendants] were justified in summoning the [local
p]olice for further inquiry."). And Tobey himself anticipated
the disruption his behavior might cause, alleging in his com-
plaint that he purposefully "waited for the number of people
in line to diminish" in order to "avoid the possibility of caus-
ing delay for his fellow passengers."
Of course, the majority offers no guidance whatsoever to
TSA officials as to how many people must be waiting in line
before they may take even modest preventive steps. And for
good reason. Conduct like Tobey’s inevitably delays the
screening process for other passengers, and referring a person
who engages in it to local authorities prevents the screening
line from jamming up and allows for a careful assessment of
any threat the person might pose. See Rendon, 424 F.3d at
479. Such a referral was a perfectly reasonable step to take,
as it provided an opportunity for further evaluation of the situ-
ation while avoiding any further potential disruptions to the
screening process.
Disruptions in an airport security-screening area, especially
ones involving "bizarre" behavior like public stripping, pose
32 TOBEY v. JONES
safety risks. As TSA regulations recognize, "[c]heckpoint dis-
ruptions potentially can be dangerous" for a number of rea-
sons, including: a "disruptive individual may be attempting to
discourage the screener from being as thorough as required";
a "screener may . . . need to summon a checkpoint screening
supervisor and law enforcement officer, taking them away
from other duties"; and "[a] screener encountering such a situ-
ation must turn away from his or her normal duties to deal
with the disruptive individual, which may affect the screening
of other individuals." 67 Fed. Reg. 8340, 8344 (Feb. 22,
2002). TSA regulations accordingly provide that "[n]o person
may interfere with . . . screening personnel in the performance
of their screening duties." 49 C.F.R. § 1540.109 (2012). Pas-
senger safety would seem to require that TSA agents be able
to focus on their screening tasks, unimpeded by boarding pas-
sengers attempting to divert their attention, whether as a
means of protest or for more sinister purposes.
To deem defendants’ response to Tobey’s distracting
behavior not only unreasonable, but clearly so, is to posit a
world in which TSA agents can afford to indulge individuals’
flamboyant propensities in one of the most sensitive areas of
the airport. After recent plots involving commercial aircraft,
it should go without saying that this is not the world in which
we live.
Tobey may very well have had benign motives. He may
very well have posed no immediate security threat himself.
But it will hardly do to countenance lengthy discovery in an
attempt to discern what TSA agents could not possibly have
known at the time. They had minutes to figure out what will
take us months. They were not allowed simply to assume non-
chalantly that Tobey’s actions were a harmless prank. They
could not possibly have known how far he would go in dis-
robing or what further actions he was prepared to take. They
could not close their eyes to the obvious risks that his distract-
ing behavior created for his fellow passengers’ safety.
Although no serious harm was done this time, "the Govern-
TOBEY v. JONES 33
ment need not wait until havoc is wreaked to restrict access
to a nonpublic forum." Cornelius v. NAACP, 473 U.S. 788,
810 (1985). In the absence of a single precedent instructing
government officials to permit publicity stunts in highly sensi-
tive venues like airport security-screening areas, I fail to see
how defendants’ response was unreasonable, let alone how
any unreasonableness was "clearly established."
B.
As for the prohibition against viewpoint discrimination in
a nonpublic forum, Tobey’s complaint alleges no violation of
this prohibition at all—let alone one that was "clearly estab-
lished." To be sure, he advances a conclusory legal allegation
to that effect. Not once in his complaint, however, does Tobey
plead a fact that would even suggest that defendants reacted
to the viewpoint he expressed rather than to his state of
undress.
Tobey does not suggest that defendants spoke even one
word of disagreement with his message before summoning
local police. He does not plead that they tolerated nonexpres-
sive disruption in the screening area. And most tellingly of all,
as the district court noted, his "complaint makes no reference
to any other passengers who stripped off their clothes—much
less passengers who began stripping down and continued to
do so even after being told by a [TSA agent] that it was
unnecessary—or otherwise launched a protest inside the
screening area" but who were not removed. Tobey, 808 F.
Supp. 2d at 849.
Had defendants truly committed viewpoint discrimination,
one would think that Tobey could point to at least one com-
ment or one comparator, someone who engaged in similarly
distracting conduct but who expressed a viewpoint different
from his (or no viewpoint at all) and whom defendants per-
mitted to remain in the screening area. He does point to picto-
rial displays of people in bathing suits and athletic shorts that
34 TOBEY v. JONES
were posted in other areas of the airport, but his attempt to
analogize his personal behavior to pictorial displays else-
where is singularly unpersuasive. Tobey obviously experi-
enced the events giving rise to this suit firsthand. He had
every incentive to include every detail that could possibly
help his case in his complaint. That he failed to plead a single
telltale sign of viewpoint bias betrays just how baseless his
claim really is.
What Tobey’s complaint does plead is not viewpoint dis-
crimination, but a perfectly reasonable response by defendants
to his highly unusual and potentially dangerous stunt. How
can it possibly be viewpoint bias to refer someone in a state
of unauthorized public undress for further evaluation and
allow the routine screening process at an airport to resume?
The agents here went the extra mile. Before ever summoning
local law enforcement, one defendant "informed [Tobey] that
removal of clothing was not necessary." It is an irony to say
the least that the defendants whose "intrusive" conduct Tobey
was protesting were simultaneously advising him that intru-
sive screening measures were "not necessary." In case there
were any doubt, this statement confirms that defendants were
concerned not with Tobey’s viewpoint, but with the fact that
he was standing nearly naked in the worst possible place. It
is sheer fancy to think that defendants had anything on their
minds other than eliminating the distraction that Tobey’s state
of dishabille was causing.
But even if defendants engaged in viewpoint discrimina-
tion, as Tobey improbably alleges, it was not clearly estab-
lished that such discrimination was unconstitutional in the
very limited setting of this case. The majority notes that it is
clearly established that "citizens have a right to voice dissent
from government policies," ante at 20 (citing Mills v. Ala-
bama, 384 U.S. 214, 218 (1966)); that even in a nonpublic
forum, "government official[s] cannot ‘suppress expression
merely because [they] oppose the speaker’s view,’" ante at 20
(quoting United States v. Kokinda, 497 U.S. 720, 721 (1990));
TOBEY v. JONES 35
and that "‘a public official may not misuse his power to retali-
ate against an individual for the exercise of a valid constitu-
tional right,’" ante at 20 (quoting Trulock v. Freeh, 275 F.3d
391, 406 (4th Cir. 2001)). While these abstract propositions
are as incontestable judicially as mom and apple pie, they fail
to provide the kind of concrete guidance that could have ren-
dered defendants’ alleged constitutional violation "clearly
established."
Of course the First Amendment subjects viewpoint discrim-
ination to strict scrutiny—as well it should. But the govern-
ment has a "compelling interest" in ensuring the safety of its
citizens. That interest is not abrogated when they take to the
air. A "narrowly tailored" means of achieving that interest,
moreover, will on rare occasions involve taking into account
the views expressed by individuals. As Justice Ginsburg
recently explained, because law-enforcement officers per-
forming a "protective function" will "rightly take into account
words spoken to, or in the proximity of, the person whose
safety is their charge," "retaliatory animus cannot be inferred
from the assessment they ma[k]e" of those words so long as
the assessment is "rational." Reichle v. Howards, 132 S. Ct.
2088, 2097-98 (2012) (Ginsburg, J., concurring in the judg-
ment). Consider someone who shouts in the security-
screening area, "All citizens have a constitutional right to
carry guns on airplanes." No one denies that TSA agents
could weigh the speaker’s viewpoint without violating the
First Amendment; indeed, we would regard any TSA agent
who failed to do so as dangerously incompetent. And when
agents confront a passenger like Tobey, who so dramatically
expressed opposition to security-screening precautions right
before boarding a flight, they confront a situation that only a
naif would ignore. The passenger may turn out to be harmless,
but the Constitution cannot possibly be construed to require
TSA agents to take that gamble.
In addition, Tobey must prove that defendants’ alleged
viewpoint discrimination caused his seizure. See Suarez Corp.
36 TOBEY v. JONES
Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000).
Tobey’s complaint, however, alleged a violation of the Fourth
Amendment as well as the First, and for many of the reasons
noted above, the district court rightly dismissed Tobey’s
Fourth Amendment claim, describing defendants’ decision to
summon local law enforcement as "eminently reasonable."
Tobey, 808 F. Supp. 2d at 850. This conclusion should have
led it to dispose of Tobey’s First Amendment claim as well.
For just last Term, the Supreme Court held that, notwithstand-
ing the First Amendment’s general prohibition against retalia-
tory arrests, "the more specific right to be free from a
retaliatory arrest that is otherwise supported by probable
cause" is not clearly established for purposes of qualified
immunity, reasoning that any inference of impermissible cau-
sation is severely undermined by the existence of probable
cause. Reichle, 132 S. Ct. at 2094 (majority opinion).
The same conclusion applies here: the causation element of
Tobey’s First Amendment claim is undermined, if not viti-
ated, by the fact that defendants’ actions were reasonable
under the Fourth Amendment. In light of Reichle, then, it was
not clearly established that these same actions violated the
First Amendment.
The majority responds by pointing to Tobey’s allegation
that defendants’ actions were not supported by "probable
cause." See ante at 21. The problem with this argument is that
neither Tobey nor the majority cites a single case holding that
probable cause is the relevant standard governing the decision
by an official who does not have arresting authority, such as
a TSA agent, to refer someone to another official who does.
And any confusion regarding the appropriate Fourth Amend-
ment standard only bolsters the conclusion that defendants’
alleged constitutional violation was not clearly established.
For the majority to hold otherwise, it must ignore conflicting
precedents and expect lay TSA agents to have imposed on the
spot a degree of coherence on First and Fourth Amendment
jurisprudence that has eluded serious students of constitu-
TOBEY v. JONES 37
tional law. Qualified immunity exists to forestall precisely
this result.
C.
Unable to muster a single case so much as suggesting that
defendants’ conduct was either (1) unreasonable or (2) imper-
missibly based on viewpoint, the majority instead attempts to
find clearly established law in abstract principles snatched
from disparate areas of First Amendment doctrine. First, the
majority appears to embrace Tobey’s pronouncement that "in-
dividuals possess First Amendment rights at airports." See
ante at 20 (citing Bd. of Airport Comm’rs v. Jews for Jesus,
482 U.S. 569, 576 (1987)). Of course they do. But that lofty
proposition is not at issue in this case. The question, rather,
is how these rights apply in the special context of security
screening. By woodenly invoking any First Amendment pre-
cedent that happens to involve an airport, Tobey and the
majority ignore the fact that this case concerns not the airport
in general, but the security-screening area in particular, as
well as the pressing security concerns that are uniquely rele-
vant there. The Supreme Court’s airport cases simply do not
speak to this special context and thus could not have given
defendants notice that their response to Tobey’s conduct may
have been unconstitutional.
Second, the majority cites Spence v. Washington, 418 U.S.
405, 410 (1974) (per curiam), for the proposition that "the
First Amendment protects bizarre behavior." Ante at 14. That
is not what Spence said. Rather, Spence held that what might
otherwise seem like "bizarre behavior" may in fact be pro-
tected symbolic speech where "[a]n intent to convey a particu-
larized message was present, and [where] in the surrounding
circumstances the likelihood was great that the message
would be understood by those who viewed it." Spence, 418
U.S. at 410-11. Even when these conditions are met, however,
the government may, consistent with the First Amendment,
reasonably respond to any "separately identifiable conduct" in
38 TOBEY v. JONES
which the speaker engages. Cohen v. California, 403 U.S. 15,
18 (1971). That was the case here. Tobey did not simply wear
a t-shirt bearing his message, but rather engaged in the "sepa-
rately identifiable conduct" of removing his shirt and pants.
As noted earlier, Tobey’s own complaint makes clear that it
was this conduct that provoked defendants’ response. More-
over, Spence had absolutely nothing to do with airport secur-
ity screening. It concerned the display, from an apartment
window, of an American flag with an appended peace sym-
bol, and to claim it provided specific guidance in the wholly
different context here is an acrobatic leap that my friends in
the majority should have the prudence to resist.
D.
The majority attempts to mitigate the injustice of its
qualified-immunity ruling by noting that defendants still
might receive such immunity at the summary-judgment stage.
See ante at 24. Small consolation that. The multiple admoni-
tions that fall on deaf ears today hardly assure a receptive
audience tomorrow. Among those admonitions are the
Supreme Court’s repeated instructions that qualified immu-
nity is an immunity from suit, not just damages, and that it
must therefore be recognized before the considerable costs of
litigation accumulate. See, e.g., Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam); Siegert v. Gilley, 500 U.S. 226,
233 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985).
Whatever the eventual outcome of this suit might be, defen-
dants are left to suffer the immediate consequences, the very
consequences that any immunity, to be effective, is designed
to alleviate.
II.
Tobey’s suit fails for another, independent reason, and in
rejecting this reason, the majority manages to flout a second
body of Supreme Court precedent. In a recent line of deci-
sions, the Court has held that a plaintiff must allege enough
TOBEY v. JONES 39
factual content in his complaint to render his legal claim for
relief "plausible on its face" in order to survive a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Iqbal,
556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Tobey’s complaint falls well short of this require-
ment, for it conclusorily asserts that defendants engaged in
viewpoint discrimination without pleading so much as a sin-
gle factual allegation that supports this conclusion. In short,
by announcing a near-categorical rule that every complaint
survives a motion to dismiss, the majority proceeds as if
Twombly and Iqbal were purely advisory.
The rules of pleading assume particular importance in the
context of a damages action against a public official, espe-
cially one alleging that the official acted with an impermissi-
ble motive. As the Supreme Court explained even before
Iqbal, "[b]ecause an official’s state of mind is easy to allege
and hard to disprove," a court confronting such an allegation
"must exercise its discretion in a way that protects the sub-
stance of the qualified immunity defense . . . so that officials
are not subjected to unnecessary and burdensome discovery or
trial proceedings." Crawford-El v. Britton, 523 U.S. 574, 584-
85, 597-98 (1998) (internal quotation marks omitted). This
Court has similarly observed that "the protection afforded
officials by an objective test [for qualified immunity] would
be illusory if the simple allegation of discriminatory animus
sufficed to set it aside." Gooden v. Howard Cnty., Md., 954
F.2d 960, 969 (4th Cir. 1992) (en banc). The doctrine of qual-
ified immunity and the rules of pleading are therefore mutu-
ally reinforcing: the former ensures that officials cannot be
subjected to damages suits for making close judgment calls
where the governing law was unclear, while the latter ensure
that this defense cannot be defeated by a bare allegation of
impermissible motive.
In light of these principles, it becomes clear that Tobey’s
complaint fails to allege a "plausible" claim of viewpoint dis-
crimination against defendants. This inquiry is governed by
40 TOBEY v. JONES
what should by now be a familiar two-step analysis. First, a
court should "begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the
assumption of truth" ordinarily accorded the allegations in a
complaint at the motion-to-dismiss stage. Iqbal, 556 U.S. at
679. Mere "‘labels and conclusions’" or "‘a formulaic recita-
tion of the elements of a cause of action will not do.’" Id. at
678 (quoting Twombly, 550 U.S. at 555). Nor will "‘naked
assertion[s]’ devoid of ‘further factual enhancement.’" Id.(quoting Twombly, 550 U.S. at 557). Second, setting aside any
unsupported legal conclusions, a court "should assume the[ ]
veracity" of any remaining "well-pleaded factual allegations"
and "determine whether they plausibly give rise to an entitle-
ment to relief." Id. at 679. "Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of
entitlement to relief.’" Id. at 678 (quoting Twombly, 550 U.S.
at 557). Thus, a plaintiff fails to adequately plead his claim
that a defendant acted unlawfully if there exists an "‘obvious
alternative explanation’" for the defendant’s conduct that ren-
ders the unlawful explanation implausible. Id. at 682 (quoting
Twombly, 550 U.S. at 567).
The only reference to viewpoint discrimination in Tobey’s
entire complaint constitutes a "naked assertion," not a "well-
pleaded factual allegation." Tobey asserts that defendants
"seized [him], or in collaboration with others caused his sei-
zure, without probable cause because of the message con-
veyed by Plaintiff’s silent, nonviolent expression of objection
to the TSA’s screening policies . . . and thereby engaged in
content and/or viewpoint discrimination." This allegation
amounts to nothing more than a "formulaic recitation of the
elements" of a First Amendment retaliation claim. To make
out such a claim, a plaintiff must show (1) "that his or her
speech was protected," (2) "that the defendant’s alleged retal-
iatory action adversely affected the plaintiff’s constitutionally
protected speech," and (3) "that a causal relationship exists
between [the plaintiff’s] speech and the defendant’s retalia-
TOBEY v. JONES 41
tory action." McGraw, 202 F.3d at 686. Tobey asserts that
defendants acted "because of" his speech and thus engaged in
"viewpoint discrimination," but these phrases do no more than
reiterate the third element of a retaliation claim; they in no
way make it more plausible that the element is satisfied in this
case.
Indeed, Tobey’s allegation of viewpoint discrimination is
barely distinguishable from the allegation of religious and
racial discrimination that the Supreme Court rejected as con-
clusory in Iqbal. According to Iqbal’s allegation, the defen-
dants in that case "‘knew of, condoned, and willfully and
maliciously agreed to subject [him]’ to harsh conditions of
confinement ‘as a matter of policy, solely on account of [his]
religion, race, and/or national origin and for no legitimate
penological interest.’" Iqbal, 556 U.S. at 680. Substitute
"message" for "religion, race, and/or national origin" and "be-
cause of" for "solely on account of" and you basically have
Tobey’s allegation of viewpoint discrimination. If Iqbal’s
allegation could not pass as a well-pleaded fact, then Tobey’s
cannot fare any better.
Stripped of the conclusory allegation of viewpoint discrimi-
nation, Tobey’s First Amendment claim "stops well short of
the line between possible and plausible." Only two factual
allegations in Tobey’s 128-paragraph complaint concern the
actions of defendants at issue here. Specifically, Tobey
alleges, first, that, after he removed his shirt and pants, one
defendant "informed [him] that removal of clothing was not
necessary," and, second, that the same defendant "radioed for
assistance" when Tobey remained unclothed and stated his
opposition to TSA screening procedures, while another "di-
rect[ed] [him] to stay where he was" pending the arrival of
local law enforcement. These allegations do not render
Tobey’s claim of viewpoint discrimination remotely plausi-
ble. On the contrary, there is an "obvious alternative explana-
tion" for defendants’ alleged actions—namely, that they
summoned local law enforcement because of Tobey’s nearly
42 TOBEY v. JONES
naked state. Iqbal, 556 U.S. at 682. Although it suggests oth-
erwise, see ante at 13 n.2, it is the majority that fails to recog-
nize that the TSA agents took action only after Tobey
gratuitously stripped his clothing and emerged in the security-
screening area in a state of undress. Tobey’s own complaint
thus not only fails to negate the obvious alternative explana-
tion for defendants’ conduct; it positively reinforces it. His
allegation that one defendant "informed [him] that removal of
clothing was not necessary" evinces a focus on his undress
rather than his speech. Moreover, the complaint describes a
course of conduct on the part of defendants that was not only
perfectly reasonable in its own right, but also perfectly consis-
tent with the First Amendment. It is unusual to have a com-
plaint whose allegations work so actively to make defendants’
case, but so it is with Tobey’s.
The majority’s approach to this case misses the entire point
of Twombly and Iqbal. American jurisprudence has long been
founded on the presumption of innocence. That makes espe-
cial sense in the context of criminal justice, when the state
bears the burden not only of proving guilt, but of doing so
beyond a reasonable doubt. Twombly and Iqbal make clear,
however, that the presumption of innocence retains some
meaning even in the different context of a civil action. That
is to say, a legal system is not justified in presuming culpabil-
ity based on the mere "possibility" of the same if there exists
a perfectly "obvious" and innocent explanation for a defen-
dant’s actions. Here, the explanation of innocence is not only
obvious but likely, given the potential security threat posed by
Tobey’s conduct. To reject Twombly and Iqbal in circum-
stances such as these is to accord no significance at all to the
signal contribution of those cases, which presumes that Amer-
icans, even those in government, act within the strictures of
the law and allocates the burden of plausibly showing other-
wise to those who charge unlawful conduct.
TOBEY v. JONES 43
III.
Whatever the ultimate fate of Tobey’s lawsuit,* it is hard
to overlook the injustice done these defendants, who have
been deprived of the most straightforward application of
qualified-immunity doctrines and Twombly/Iqbal pleading
standards. Faithfully applying these doctrines would not lead
us to constrict the First Amendment values that Tobey and the
majority claim to champion. Consider all the other venues in
which Tobey could have protested TSA screening policies.
Indeed, many airports have permitted such protests in less
sensitive locations. See, e.g., Lee Bergquist, Airport Body
Scan Protests Fizzle Out, Milwaukee J. Sentinel, Nov. 24,
2010, http://www.jsonline.com/news/milwaukee/110365459
.html. Had Tobey mounted his protest somewhere other than
the security-screening area, we would have confronted a very
different question. I am sure the particular strategy employed
by Tobey helped to attract greater attention to his message.
But it is always true that the more disruptive the speaker, the
more attention the message garners. And if that becomes the
abiding principle of decision, then the law of reasonable time,
place, and manner restrictions will be soon set at naught. Just
as one may not shout "Fire!" falsely in a crowded theater, so
one may not theatrically divert TSA agents in their screening
tasks, even in order to express disapproval of their actions.
No one enjoys having to endure the inconvenience of air-
port security screening. No one wants to toss his or her shoes
and other personal effects into a bin. TSA agents, moreover,
can and do make mistakes, and there is always the chance that
imbuing subordinate officials with a bit of authority can make
them tyrants in their spheres. Whether TSA screening proce-
dures are too intrusive and demeaning is surely a debate worth
having, and Tobey may well have something of value to con-
*Whether the cause of action asserted by Tobey would lie under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), is not before us, and I do not address it.
44 TOBEY v. JONES
tribute to it. But TSA agents also perform what is indubitably
a vital function, and it is sometimes necessary to make small
sacrifices to achieve greater gains or, as in this case, to avoid
catastrophic loss.
Wherever the grand balance may be struck, the particulars
here leave little room for doubt. These agents were not out to
squelch speech or to handle passengers rudely. They advised
less intrusive measures, not more. The provocation was then
thrust upon them, and they gave to passenger protection the
benefit of the doubt. They have now been entangled in a law-
suit without so much as a pass at proper notice. They face fur-
ther litigation for doing nothing more than seeking to ensure
our safety in the skies.
They deserve better. I respectfully dissent.