Michael Roberts: Heroic Pilot Stands Up for His Constitutional Rights
By Randall Holcombe • Friday October 22, 2010 8:25 AM PDT • 22 Comments
Michael Roberts, a pilot for ExpressJet Airlines, stood up for his constitutional rights when he refused to pass through the TSA’s new Advanced Imaging Technology (AIT) machine that, as he says, amounts to “virtual strip searching,” and then when offered the alternative of being frisked by a TSA agent, also declined the alternative secondary screening of being frisked by a TSA agent. Mr. Roberts’ account can be read here.
Mr. Roberts said he had gone through the TSA metal detector countless times, had never been suspected of carrying dangerous materials on a flight, and had even taught the security portion of a TSA-mandated course for his airline. But they wouldn’t let him through the checkpoint unless he consented to either the virtual strip search of the AIT machine, or a physical frisking. He refused, and after some further questioning, was eventually allowed to leave the airport.
He was willing to go through a metal detector as he had done in the past, but that was no longer an option. TSA policies have become increasingly intrusive, as anyone who flies regularly knows.
The Fouth Amendment to the Constitution reads, “The right of the people to be secure in their persons, houses, 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.”
I am not an attorney, but my common sense tells me that the TSA was asking Mr. Roberts to undergo an unreasonable search without probable cause. If the government can’t tell you, “Here’s why we suspect you, and here’s what we expect to find when we search,” then as I read the Constitution, the search is unconstitutional.
I fly the airlines frequently, and I always passively step through the TSA-mandated search, because I’m sure that if I didn’t, like Mr. Roberts I would not be able to complete my trip. So, my choice is: put up with what I view as unconstitutional violations of my rights and take the trip, or refuse and stay home. I compromise my principles and go, but I’m not happy about it.
So, I applaud Mr. Roberts, who has much more at stake than I do, because he’s risking his job to protect his constitutional right against unreasonable search. I deliberately put his name in the title of my post, because I believe he deserves as much publicity from this as he can get.
I would have some second thoughts about Mr. Roberts’ stand if I thought the vast expense and erosion of our rights actually made flying safer, but I don’t think that is the case. The TSA has NEVER uncovered any security threats from anyone at any TSA checkpoint. They have occasionally found guns, but not carried by people who intended to use them on flights. They didn’t find the shoe bomber (but, now YOU have to take off your shoes), and they didn’t find the underwear bomber (and, Mr. Roberts notes, the TSA is now moving toward requiring everyone to undergo a virtual strip search).
My wife, who normally carries a small knife on her keychain, has lost many knives to the TSA, because she forgets to take the knife off her keychain. Once I sent my two teenage boys off to visit their uncle without briefing them on TSA procedures, and they both got caught with toothpaste in their backpacks. I did witness a feeble old woman in a wheelchair being patted down by TSA agents because she couldn’t make it through the metal detector in her wheelchair. Is any of this reasonable?
The only reason I can see for the TSA policy on liquids, gels, and aerosols, is that it allows them to catch violators with some regularity. If they were only looking for guns, knives, box cutters, and bombs, they would almost never find anything, and surely their senses would be dulled going day after day after day looking for something that’s never there. But with their current policies, they can find all sorts of things that aren’t threats at all, but do violate their policies.
Once, passing through London, I got pulled out of the line by some very polite British agents for a more intensive inspection where they had me empty everything out of my carry-on. They apologized and said they pulled people at random for these inspections. As an old greybeard, I told them I was flattered that at my age anyone would single me out as a potential security threat.
OK, end of rant. And hats off to Michael Roberts, who unlike me, is willing to stand up to the federal government for his constitutional rights, even though doing so will imperil his livelihood. That takes some courage, and I hope he is willing to pursue this, and to win his constitutionally-granted right to be free from unreasonable searches without probable cause.
Tags: Civil Liberties, Integrity, Law, Liberty, Personal Liberty, Power, Privacy, Surveillance, The State, Transportation 
If we ever intend to restore our personal liberties, both civil and economic, it will be necessary to severe the tie between education and state. Otherwise the brainwashing will continue to churn out millions of submissive, docile, unthinking people.
Michael Roberts represents the remnant that resists the government onslaught. He is to be commended for taking a principled stand against the TSA goon squad.
Steve Hogan | Oct 22, 2010 | Reply
Michael Roberts is the Rosa Parks of the New Civil Rights Era.
D. Saul Weiner | Oct 22, 2010 | Reply
Great comment, Saul! I wish I had thought of it, and used it as the title of my post.
Randall Holcombe | Oct 22, 2010 | Reply
Given the amount of scrutiny and training pilots receive, I’m shocked that a pilot would be asked to go through the body scanner to check for weapons. Does TAS know that every cockpit come equipped with an ax? They don’t need to smuggle weapons on board. Homeland Security is such a joke.
Cbellow | Oct 22, 2010 | Reply
Call me cynical, but after reading the first volume of Law, Legislation, and Liberty [Vol. 1, Vol. 2, Vol. 3], I’m convinced that the way western countries have implemented democracy will always lead to a slow erosion of liberty. Legislators will constantly find themselves in situations where they need to be seen “doing something,” and they’ll slowly erode liberty in the process. Hayek’s solution of separating the body that determines the rules of just conduct from the one that directs government is the best one I’ve heard of so far. I’d really like to see a country give it a try.
Ian | Oct 22, 2010 | Reply
Mike Roberts,
Great job. Keep it up.
It’s a big joke having some a****** starring at your body.
Don’t give in. Great job !!!!!!!!!!!!!!!!!!
tony | Oct 22, 2010 | Reply
I support the government. It has a compelling duty to protect us. If the pilot’s not hiding something, he should consent to be searched. The searches are reasonable, especially a frisk. It would be too expensive to try to make an individualized assessment of probable cause, for every traveler or pilot, before asking them to submit to the usual type of search.
This kind of libertarianism endangers us all. It would hamstring the government in its compelling interest in protecting travelers from terrorists, including far-right-wing anti-government types.
Tim | Oct 23, 2010 | Reply
Tim,
If the pilot wanted to endanger the plane he could do naked without any carry-on objects.
The best way to prevent terrorism is to stop being terrorists ourselves. Obviously it’s “okay” for the US to kill civilians in other countries, but the moment they retaliate towards us they’re the bad guys? I don’t condone the 9/11 attacks, but I also don’t condone all the innocents murdered on foreign soil.
It’s your kind of statist attitude that endangers liberty. You know, the kind mentioned in the Declaration of Independence. Or is that too extreme?
Also, Google the 4th and 5th Amendment of the Constitution. You might learn something.
Cheryl | Oct 23, 2010 | Reply
It’s people like Tim, here who are endangering everyone. Mindless types like his are everywhere, according to them, it’s always an inconvenience for goberment to preserve liberty, and it’s always convenient for individuals to give up their liberty, how much more bassackwards can it get?
Being fondled by perverts sounds so innocent when the word frisk is used to describe the injustice, one that goberment is supposedly to protect us From, not be the cause Of. Line up the little girls and boys for their gropings by TSA?
The goberment only has One compelling duty, and that’s to see it maintains it’s power over everyone. Not that people like Tim would ever be able to understand this, afterall, to people like Tim, goberment is god on earth.
clark | Oct 23, 2010 | Reply
I have not yet encountered this predicament. But I have a plan when I do. I shall opt for the pat down – and pretend that I’m gay and that I find the gentleman doing the pat down very attractive. I’ll say, “can I be patted down by HIM?” At the very least, this should freak them out.
rhayat1 | Oct 24, 2010 | Reply
Benighted Tim got but halfway through a key proposition of T. Jefferson, who said that governments are instituted among men to secure our unalienable rights, rights that are being violated in the misplaced zeal to protect our persons whether or not we want or need such protection.
Alan Esworthy | Oct 24, 2010 | Reply
I deliberately put his name in the title of my post, because I believe he deserves as much publicity from this as he can get.
James Morgan - Puritan Financial Advisor | Oct 24, 2010 | Reply
As long as most people are like Randall Holcombe, and are will to forgo their rights in order to take the trip, we will continue to have encroachments on our liberties. If everyone would say hell no, we are not going to put up with this, and refuse to fly, there would be changes. With all those planes and no one on them, the airlines would push for change because they are having trouble as it is, and those problems would be intolerable if people massively boycotted flying. Government responds to big money.
I appreciate the principled stance Michael Roberts took. He will likely lose his job over it. He is a pilot, so he would not need a bomb to destroy a plane and its passengers. All he has to do is fly it into the ground. Even the dimwits in the government should be able to eventually see that. So TSA could make an exception for pilots, and the rest of the flying public would be back to making the same sort of decision that Mr. Holcombe has been making.
I’m not hopeful that anything will come of this, other than one principled man losing his job.
Cogitator | Oct 24, 2010 | Reply
The question has to be: what is a “reasonable” search? Is the only Constitutional search one of the search warrant that the police use? That frisking is invalid because it is a “guilty until proven innocent” type of search? Or what?
Gil | Oct 24, 2010 | Reply
All you need to do is to take one look at who is working for TSA; they couldn’t catch flies.
amishfarmer | Oct 26, 2010 | Reply
Why not privatize the airplane security industry? Let the airlines handle the protection of their planes and passengers, they have the biggest incentive to do so. Government security guards have no culpability in the safety of the airplanes and neither does the government. Let the airlines protect their own investment. People can then decide for themselves if they want to fly on an airline or not.
Clyde | Oct 28, 2010 | Reply
Cogitator, don’t judge Mr. Holcombe (and myself for that matter) or more appropriately, “he who is without sin, cast the first stone.” Did you pay taxes on wages last year? If so, you have allowed your rights to be violated. We both know that the list of examples does not exhaust there.
As for Tim; poor silly rube, as Cogitator mentioned already, a pilot needs no weapons to be a terrorist, he’s flying one. They that would give essential liberty for [the illusion of] safety, deserve neither...” Franklin.
Clyde, your idea has already been tried; it was called the 9th & 10th Amendments. The entire “government owned airports” down to TSA is a violation of not only the 4th, but the 9th and 10th. We’re just letting it happen. Because no one (myself included) wants to be the one to be the victim of the first shot fired in the war for liberty.
joe4liberty | Nov 1, 2010 | Reply
Good for you Michael....stand up for your rights. We need to stop this lunatic approach to take away all of our freedoms. Once the 4th Amendment goes, the 2nd will follow since it has been in the process for a while now, but they want that one gone more than ever. I don’t fly anymore, especially with my children because I refuse to have some minimum wage TSA agent take away my daughters innocence by viewing her naked image. That borderlines child pornography in my opinion. On my last flight, a return flight from Chicago O’Hare to Houston I refused the full body scanner, offered to go through the regular metal detector, but was forced to have a pad-down as you described. When questioning the agents as to why, I did not receive an answer. To make things worse, the even faked a explosive response after testing their gloves post-search resulting in having a second pad-down by another person. So, I don’t fly anymore because I refuse to surrender my birth given rights to some power-hungry-minimum-wage earning pervert!!
Brigitte | Nov 10, 2010 | Reply