Police, The Fourth Amendment, Qualified Immunity

Shirtless guy at the airport with 4a markered on his chest

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Case: Tobey v. Jones (4th Cir. Jan. 25, 2013)

What happened: In this somewhat high profile case, a protestor markered the text of 4a onto his bare chest and went to the airport for his flight. When required to take off his belt and hoes for security reasons, he took off most (not all) of the rest of his clothes off, thereby exposing his chest and the text of 4a to the screeners. Plaintiff was arrested at, what strongly appears to be, the behest of the airport screeners (that is, a couple of government employees who work for the TSA). Plaintiff later sued for false arrest.

Decision: Plaintiff’s “pleadings” are sufficient to allow the case to proceed, despite the fact that the plaintiff does not know whether it is the policemen, or the screeners, who are responsible for his allegedly false arrest.

Comment: In the later 2000’s, the Supreme Court made ome changes to pleading law that make it tough for section 1983 plaintiffs (and other plaintiffs) to make it past the pleading stage if the plaintiff does not know exactly what happened to lead to her alleged injuries. This can potentially lead to a Catch-22 situation where plaintiff needs the discovery that a lawsuit provides in order to know who’s bad behavior led to her injury, but, at the same time, she can’t get this information because her lawsuit is terminated at the pleadings stage, which usually occurs before any discovery has taken place. In this case, the court is not letting that happen, which is probbly a good thing for pleading law in general. It remains to be seen whether the plaintiff will be as successful on his 1a and 4a claims against the screeners and the police officers.

Further info: For more on the 1a aspects of this case, see the Volokh Conspiracy blog entry at:


Written by Burgers Allday

January 31, 2013 at 5:04 am

Posted in Uncategorized

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