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.