Plaintiff Elisabeth Koletas, who was four months pregnant, requested a pat-down search instead of a body scanner at Southwest Florida International Airport due to radiation concerns. During the search, Transportation Security Officers Sarno and Shane conducted a prolonged and invasive probe of Koletas's vaginal area, moving her to an isolated room and removing a bloodied piece of toilet paper from her underwear after she refused to lift her dress. Koletas filed a suit under the Federal Tort Claims Act alleging battery, false imprisonment, intentional infliction of emotional distress, and negligence. The United States moved to dismiss, arguing that the FTCA's intentional tort exception preserved sovereign immunity because TSOs are not 'investigative or law enforcement officers.' The district court granted the dismissal, relying on an unpublished 2014 Eleventh Circuit decision, but Koletas appealed, citing recent published decisions from other circuits reaching the opposite conclusion.
Circuit Judge Lagoa, writing for the panel, analyzed whether TSOs fit the statutory definition of 'investigative or law enforcement officers' in 28 U.S.C. § 2680(h), which requires the officer to be 'empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.' First, the court found TSOs are 'officers of the United States' based on their title, badges, and the authority vested in them by the Aviation and Transportation Security Act to conduct screenings for public safety. Second, the court determined that TSO screenings constitute 'searches' under the ordinary meaning of the term, the Fourth Amendment, and Supreme Court precedent in Terry v. Ohio, as they involve thorough physical and non-physical examinations to detect concealed threats. The court rejected the government's argument that 'execute searches' is a term of art limited to warrant-based criminal investigations, noting Congress did not include the word 'warrant' in the statute. Furthermore, the court applied the rule of the last antecedent to conclude that the phrase 'for violations of Federal law' modifies only 'to make arrests,' not 'to execute searches,' and even if it did, TSO searches are for violations of federal law regarding hazardous materials. Finally, the court held that the sovereign immunity canon does not apply to the FTCA's law enforcement proviso, citing the Supreme Court's decision in Dolan v. U.S. Postal Service, which mandates a neutral interpretive approach for the FTCA rather than strict construction in favor of the government.
The decision reverses the district court's dismissal, allowing Koletas's FTCA claims to proceed to trial on the merits. It establishes that the Eleventh Circuit now aligns with the Third, Fourth, Eighth, Ninth, and Tenth Circuits in recognizing TSOs as law enforcement officers for FTCA purposes. This ruling exposes the federal government to liability for intentional torts committed by TSOs during security screenings, while leaving open the specific factual questions of whether the searches in this case were reasonable or excessive.