- Associated Press - Wednesday, August 10, 2011

RICHMOND — A judge said Wednesday that he will rule in about two weeks on whether to dismiss a lawsuit filed by a college student who was arrested after stripping to his running shorts at a Richmond International Airport checkpoint to protest security procedures.

After hearing about an hour of arguments, U.S. District Judge Henry E. Hudson took the motions under advisement and tentatively scheduled a two-day jury trial to start Jan. 18.

Aaron Tobey, 21, of Charlottesville was detained by federal Transportation Security Administration officers Dec. 30 after partially disrobing to display the text of the Constitution’s Fourth Amendment written on his chest. Mr. Tobey, at the time a University of Cincinnati senior, says he was protesting airport security procedures that he believes violate the amendment’s protections against unreasonable search and seizure.

According to Mr. Tobey’s complaint, TSA officers called Richmond airport police, who arrested and handcuffed him before asking any questions. A disorderly conduct charge was later dropped, but Mr. Tobey claims in his lawsuit that the “overbearing, heavy-handed and unfounded actions of security personnel” violated his free-speech and other constitutional rights.

Defendants include Secretary of Homeland Security Janet Napolitano, TSA administrator John S. Pistole, the Capital Region Airport Commission, airport public safety director Victor Williams, a TSA security officer and three airport police officers. The federal officials and the airport defendants filed separate motions to dismiss.
Carlotta Wells, an attorney for the federal defendants, said all the TSA did was call for police assistance when Mr. Tobey refused to go through a body scanner as directed and began stripping and placing his outer garments on a conveyor belt.

“What he was doing was unusual, unexpected and out of the ordinary,” she said, adding that Tobey’s detention was necessary to maintain order in the security checkpoint area.

Paul Jacobs, attorney for the airport defendants, questioned whether it would have been reasonable for airport police to stand back and assess whether the partially disrobed man was a harmless protester “rather than a terrorist or some kook with a bomb in his shorts.”

But Mr. Tobey’s lawyer, Anand Agneshwar, said his client complied with all of the officers’ directives and did nothing to warrant being immediately handcuffed and detained for nearly two hours. Mr. Agneshwar said officers lectured his client about the rights one has to give up in the name of airline safety — an indication that they disapproved of the content of his message.

Judge Hudson did not seem persuaded.

“The mere fact that he stripped his clothes off in a secure area, you don’t think that justifies calling police to inquire further?” Judge Hudson said.

Mr. Agneshwar said that based on what happened, it appeared the TSA summoned police to arrest Mr. Tobey, not just to question him. He said the actions by the TSA and the airport police went beyond what was necessary to ensure that Mr. Tobey was not a security threat.

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