Does the Punishment Fit the Crime?

The difficulty with fining passengers for bringing a prohibited item to an airport screening checkpoint is that the punishment usually doesn’t fit the crime. While the Transportation Security Administration (TSA) is proud of its record of having confiscated and otherwise kept out of commercial airliner cabins dangerous objects numbering in the millions (according to the agency), for the most part, the objects generally do not meet even the most expansive definition of a dangerous weapon. Any object capable of causing death or serious bodily injury — with the exception of pocket knives with blades less than 2.5 inches — is what is defined in federal criminal procedure law as a dangerous weapon in a federal facility. (Title 18 USC Section 930)

As the majority of the items banned from commercial aviation by the TSA are generally considered incapable of causing the serious harm we are trying to prevent aboard airliners, we need to re-think the justification for imposing burdensome fines on passengers who almost certainly took their scissors or miniature Swiss Army knife to the screening station without any intention of violating the law. And while it is certainly true that the TSA publishes its list of 68 prohibited items on its Web site — so you can check everything in your possession before showing up at the airport — unless it’s a large knife, a gun, an explosive, or a gallon of gasoline, chances are that barring you from access to a “sterile area” should be punishment enough. It strikes me as ironic that, while passengers can be fined from $150 to $10,000 for violating the regulations banning listed items, the TSA is not fined each time a government accountability agency conducts a test with guns, knives, and explosives that go undetected.

The rules, however, must be observed. The TSA, with the help of the Federal Aviation Administration (FAA), has the authority to determine and enforce what hazardous materials can and cannot be taken into the cabin of an airliner. The issues presented by this scheme are: Determining whether air travelers and flight crews are really protected by the prohibited items lists, and whether the fines for violations are arbitrary and capricious. As more and more fines are levied on ambushed passengers (who don’t know about the decision made to impose them until they receive notice in the mail), it becomes urgent to advise the traveling public about this policy and what their rights are.

The first issue with this scheme is that it is not being administered equally. For most passengers who appear at a screening station with a prohibited item, the item, if discovered, is confiscated by a screener. In some instances, the passenger is permitted to leave the screening station with the item and arrange to have it placed in checked baggage, stored in a parked automobile, or mailed. Sometimes the object is confiscated on the spot without further action. Other passengers are notified of a fine being imposed based on the prohibition against appearing at the screening station with a weapon, etc. If the passenger is in possession of a truly lethal weapon, such as a firearm, explosive device, or an obviously concealed knife designed for use as a weapon, it is reasonable to impose a fine or other sanction set forth in the statute on an equal basis in accordance with federal regulations. Otherwise, the circumstances which resulted in the possession of a “cutting tool,” “blunt instrument,” or “flammable eye glass cleaner” needs to be considered before civil penalties are imposed.

Where a passenger or crew member is found to possess an item included on the prohibited items list, but the possession of which would not otherwise be illegal, fining the passenger under existing protocols is both excessive and inconsistent with the concept of fairness. Why? Because it is left to the screener to decide if the passenger and the banned item rise to a threat level where a fine should be imposed. Judgments of this kind made without carefully crafted guidelines can be arbitrary and capricious; they also call for adequate notice of intent to fine and a fair opportunity for appeal in a forum where they can be properly challenged.

Currently, the accused passenger receives a barebones notice citing Title 49 CFR Section 1540.111(a), which states… that an individual may not have a weapon, explosive, or incendiary” in their possession when an inspection has begun at the screening station. When everyday household items such as whipped cream in aerosol cans are banned, but shaving cream similarly packed is not, it seems inappropriate to place a passenger at risk of a fine for asking what the difference is. If we are to fine passengers for possession of a pocket knife at a screening station, then all passengers who do so need to be treated equally. While it may be appropriate to increase or decrease fines based on exacerbating circumstances, hardship, or unusual cooperation, fines imposed based upon a traveler’s demeanor, personality, or intent as perceived by the screener and a supervisor who wasn’t present — and imposed without a hearing — go beyond the rules and basic concepts of administrative law.

Applying Appropriate Standards
The other issue which needs some attention are the standards applied when items are added to or removed from the prohibited list. For example, when an aerosol can is banned when it is not a toiletry item but permitted when it is, it makes no sense from a security point of view. Why allow any cigarette lighters in the cabin, either fuel absorption fed (permitted) or butane operated (not permitted) — smoking is not permitted! If we are concerned about the possession of potential “flame-throwers,” then let’s ban all such packaging regardless of the intended use. When we prohibit any pocket knife of any size, but allow knitting needles of any size, the folly of the process is obvious. Allowing steak knives in first-class further obscures the reasoning behind the rule.

The purpose for establishing screening stations in the late 1960s was to prevent hijacking. Unless we are prepared to accept the notion that cockpits are vulnerable to pen knives, we shouldn’t be looking for them in the first place. In the possession of terrorists and most criminals, the substitutes for deadly weapons range from rolled-up magazines to shoe laces to bare hands. Continuing to search for items which are not weapons per se or a direct threat to commercial aviation is an unreasonable and costly imposition upon the public. It is not made less offensive by attempting to pay for the activity by imposing fines upon passengers possessing relatively harmless objects.

Compliance with reasonable rules for aviation security should be vigorously pursued by the Department of Homeland Security. The public should and will support such efforts when there is a real benefit associated with them. When, as here, some passengers pay fines and others don’t, some screeners act consistently and objectively and others don’t, and some passengers can appeal what they believe are arbitrary decisions and others can’t, we are faced with a process which is likely to breed further distrust of an agency that has been repeatedly cited both publicly and privately for its excesses. The Department of Homeland Security should reconsider the entire program of categorizing prohibited items in terms of real danger to aviation. It should also look at the current practice of imposing sanctions without regard to an intent to violate the rules, and defend the rights of the public to fair and consistent adjudications.

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