This legislative package is a state-level response to constitutional violations by the TSA. Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this legislation in your state.
1. Travel Freedom Act: Noncompliance
“An Act relating to the offensive touching of persons seeking access to public buildings and transportation; providing penalties.”
2. Travel Freedom Act: Banning TSA Patdowns without Probable Cause
“An Act relating to the offensive touching of persons seeking access to public buildings and transportation; providing penalties.”
3. Travel Freedom Act: Banning Whole-Body Scanners
“It shall be unlawful for any person or governmental entity within the state to use a wholebody imaging device at any public facility or government building for the purpose of screening persons except in accordance with the provisions of this section.”
4. Travel Freedom Resolution
A non-binding resolution reaffirming the rights of the people and the power of the state. If your state politicians don’t feel they have strong enough support – or are waffling – for introducing the binding Act(s) above, we strongly suggest that you urge them to introduce this resolution. While non-binding, it will bring the issue more into the public sphere, and politicians can rest easy that passage of it won’t result in any federal backlash. Passage will likely build grassroots support and a stronger on-the-ground network for passage of the ACT(s) in future sessions.
Travel Freedom Act: Noncompliance
A BILL
TO BE ENTITLED AN ACT
Relating to the non-compliance of [State] public officials with oppression by the intrusive touching of persons seeking access to public buildings and transportation; providing penalties; relating to a person’s right to resist certain illegal searches and seizures.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF [State]:
SECTION 1: [Section ______, Penal Code, is amended] OR [A new Section ______is added to the Penal Code]
(a) A person who is a public servant of the State of [State] commits a class A Misdemeanor if the person:
(1) While acting under color of the person’s office or employment without probable cause to believe the other person committed a criminal offense:?
(A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and
(B) Intentionally, knowingly, or recklessly:
(i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or
(ii) causes physical contact with the other person when the actor knows or should reasonably believe that the other person will regard the contact as offensive or provocative; or
(2) While acting under color of the person’s office or employment knowingly provides material assistance to searches described in subsection a(1) performed by any public servant of the State of [State] or any public servant of the United States.
(b) It shall be lawful for any person to reasonably resist, or reasonably aid in the reasonable resistance of another, or reasonably resist on behalf of a minor, incompetent, disabled, or any other person who cannot resist on behalf of themselves;
(1) A search described in subsection (a)(1) when performed by a public servant of the state of [State]; or
(2) A search described in subsection (a)(1) when performed by a public servant of the United States.
(c) For the purposes of this Section a “public servant of the state of [State]” includes:
(1) An officer, employee or agent of:
(A) The State of [State] or any political subdivision thereof;
(B) A branch, department or agency of the State of [State] or any political subdivision thereof;
(C) Another person acting under contract with a branch, department or agency of the State of [State] or any political subdivision thereof for the purpose of providing security or law enforcement service; and
(D) Any other person acting under color of State law.
(d) For the purposes of this Section a “public servant of the United States” includes:
(1) An officer, employee or agent of:
(A) The United States;
(B) A branch, department or agency of the United States;
(C) Another person acting under contract with a branch, department or agency of the United States for the purpose of providing security or law enforcement service; and
(D) Any other person acting under color of the United States.
(e) For purposes of this Section, a person who is a public servant acts under color of the person’s office or employment if the person acts or purports to act in an official capacity.
SECTION 2: This act shall be construed, as a matter of state law, liberally to effectuate its purpose to of inhibiting oppression through intrusive touching, searches and seizures
SECTION 3: This Act takes effect on the 91st day after the last day of the legislative session.
**Legislation drafted by Blake Filippi
Blake Filippi [send him email] is a Legal Analyst for the Tenth Amendment Center. He is also the director of the Rhode Island Liberty Coalition, a constitutional attorney and the initial author of resolutions opposing NDAA detention provisions being introduced around the country. Visit RI Liberty online at www.riliberty.com.
Travel Freedom Act: Banning TSA Patdowns
AN ACT
relating to the offensive touching of persons seeking access to public buildings and transportation; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF [STATE]:
SECTION 1. Section [NUMBER], Criminal Code, is amended by adding [SUBSECTIONS] to read as follows:
(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent.
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; [or]
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; or
(3) as part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly:
(A) searches another person without probable cause to believe the person committed an offense; and
(B) touches the anus, sexual organ, or breasts of the other person, including touching through clothing, or touches the other person in a manner that would be offensive to a reasonable person.
(b) An offense under this section is a felony of the second degree
An offense under Subsection (a)(3) is a state jail felony.
(c) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under Subsection (a)(3).
SECTION 2. This Act takes effect immediately upon signature of the Governor.
Travel Freedom Act: Whole-Body Scanners
AN ACT
RELATING TO HOMELAND SECURITY; TO PROVIDE REQUIREMENTS RELATING TO WHOLEBODY IMAGING, TO PROVIDE FOR AN ALTERNATIVE TO WHOLEBODY IMAGING, TO PROVIDE RESTRICTIONS RELATING TO IMAGES, TO PROVIDE THAT THE STATE SHALL MAKE CERTAIN FINDINGS PRIOR TO USE OF ANY WHOLEBODY SCANNERS IN THE STATE, TO PROVIDE FOR REPORTING AND TO DEFINE TERMS.
Be It Enacted by the Legislature of the State of [STATE]:
SECTION 1. That Title [NUMBER], [STATE] Code, be, and the same is hereby amended by the addition thereto of a NEW CHAPTER, to be known and designated as Chapter [NUMBER], Title [NUMBER], [STATE] Code, and to read as follows:
CHAPTER [NUMBER] LIMITATIONS ON THE USE OF WHOLEBODY IMAGING TECHNOLOGY FOR SCREENING PURPOSES
[NUMBER] WHOLEBODY IMAGING LIMITATIONS.
(1) It shall be unlawful for any person or governmental entity within the state of [STATE] to use a wholebody imaging device at any public facility or government building for the purpose of screening persons except in accordance with the provisions of this section.
(2) Wholebody imaging technology may not be used as the sole or primary method of screening persons, nor may it be used to screen any person unless another method of screening, such as metal detection, demonstrates cause for preventing such person from boarding an aircraft or entering a public facility or government building.
(3) A person for whom screening by wholebody imaging technology is permissible pursuant to the provisions of subsection (2) of this section, shall be provided information on the operation of such technology, on the image generated by such technology, on privacy policies relating to such technology, and on the right to request a patdown search pursuant to the provisions of subsection (4) of this section, prior to utilization of such technology with respect to such person.
(4) A person for whom screening by wholebody imaging technology is permissible pursuant to the provisions of subsection (2) of this section shall be offered a patdown search in lieu of such screening.
(5) An image of a person generated by wholebody imaging technology may not be stored, transferred, shared or copied in any form after the determination has been made to allow or disallow the person whose body was scanned to proceed to board an aircraft or enter a public facility or government building.
(6) Prior to the use of any wholebody scanner in the state of [STATE], the chief of the bureau of homeland security for the state of [STATE] shall make a finding that repeated exposure to a wholebody scanner by persons who frequently fly, or who frequently visit a public facility or government building where a wholebody scanner is in use, will not be harmed or in any way have their physical wellbeing affected by repeated exposure to the wholebody scanner. Such findings shall also address persons who operate or work in close proximity to a wholebody scanner.
(7) No later than one (1) year after the date of enactment of this section, and annually thereafter, the [DEPARTMENT] of the state of [STATE] shall submit to the legislature a report containing information on the implementation of the provisions of this section which shall include the number of persons for whom screening by wholebody imaging technology was permissible under the provisions of subsection (2) of this section as a percentage of all screened, the number of persons who chose a patdown search when presented the offer pursuant to the provisions of subsection (4) of this section as a percentage of all persons presented such offer, on privacy protection measures taken with respect to wholebody imaging technology, on privacy violations that occurred with respect to such technology and on the effectiveness of such technology. The report shall also include any new findings related to the health effects of exposure to the radiation from a wholebody scanner to the operator and to persons who are frequently xrayed by such wholebody scanners.
(8) As used in this section, the following terms mean:
(a) “Patdown search” means a physical search of a person where the outer clothing of the person is patted by the palm or the back of the hand when there is reasonable suspicion the person may possess a prohibited weapon, destructive device or other prohibited material;
(b)”Wholebody imaging technology” means a device, including a device using backscatter xrays or millimeter waves, used to detect objects carried on individuals and that creates a visual image of the individual€™s full body, showing the surface of the skin and revealing objects that are on the body.
SECTION 2. This Act takes effect immediately upon signature of the Governor.
Travel Freedom Resolution
Whereas, The Fourth Amendment of the United States Constitution provides the following guarantee:
The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Transportation Security Administration (TSA) procedures such as full body scans and personal, invasive pat-downs are in direct violation of the Fourth Amendment and are thus unconstitutional; and
Whereas, The concept of the presumption of innocence is one of the most basic in our system of justice, even though it is not explicitly enumerated in the text of the U.S. Constitution. This basic right comes to us, like many things, from English jurisprudence and has been a part of that system for so long that it is considered common law. Furthermore, this concept is embodied in several provisions of the U.S. Constitution, such as the right to remain silent and the right to a jury. The practices of full body scans and enhanced physical pat-down checks assume guilt before innocence and are therefore in direct violation of common law and concepts embodied in the U.S. Constitution; and
Whereas, While the U.S. Constitution does not specifically mention a right to privacy, many Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the Ninth Amendment. In addition, right to privacy is inherent in many of the amendments in the Bill of Rights, such as the Fourth Amendment’s search and seizure limits, and the Fifth Amendment’s self-incrimination limit. Full body scanning and enhanced physical pat-down checks violate American citizens’ right to privacy and are an assault on our human dignity, as well as our physical, emotional, and mental well-being; and
Whereas, While the U.S. Constitution does not specifically mention “travel” or an explicit right to travel, this right is firmly established in U.S. law and precedent. In United States v Guest, 383 U.S. 745 (1966), the Supreme Court noted, “It is a right that has been firmly established and repeatedly recognized.” In Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in his concurring opinion that…it is a right broadly assertable against private interference as well as government action. Like the right of association, . . . it is a virtually unconditional personal right, guaranteed by the Constitution to us all.
Furthermore, although the Articles of Confederation had an explicit right to travel, it is thought that the right is so fundamental that the framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights. Thus, being denied access to any mode of travel due to an individual’s refusal to submit to full body scanning or enhanced physical pat-down checks is a violation of American citizens’ right to travel; and
Whereas, Full body scanning and enhanced pat-down procedures have not been proven to be effective in preventing terrorist attacks on airlines. In fact, they may have little impact on security and merely give travelers a false sense of security, as opposed to adopting real security measures to ensure that travelers are actually safe.
Whereas, The use of full body scanning and enhanced pat-down procedures actually embolden our enemies and further their goals by eroding the very freedoms Americans hold dear and which Al Qaeda and other Islamic radicals want to destroy; now, therefore, be it
Resolved by the [CHAMBER], That we hereby memorialize the Congress of the United States and the Department of Homeland Security to remember that this is, in fact, the United States of America and to ban the invasive, demoralizing, illegal and unconstitutional practices of full body scanning and enhanced physical pat downs; and be it further
Resolved that should the Congress of the United States not ban these unconstitutional practices in a reasonable time, the state of [STATE] will be required to take such actions as are necessary to protect the liberty of the citizens of this state; and be it further
Resolved, That copies of this resolution be transmitted to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the members of the [STATE] congressional delegation, and the Administrator of the TSA.