I hate going through airport security. There’s nothing more demeaning to me than walking through a machine that gets to see my junk. If I wanted people to see me naked all the time, I wouldn’t be wearing clothes. For me, having to deal with the draconian airport security always puts a damper on any trip I’m taking, especially considering how unprofessional they can be.
But as much as it sucks having to endure the TSA on my way to Hawaii, seeing stories like this makes me appreciate that the TSA is the only government agency I have to worry about when I travel.
It’s tough being or looking Muslim in America these days. Not only do you have the TSA hassling you at every corner, but you also have every other government agency doing the same. You need no further evidence than Yasir Afifi, the man in the story I linked to in the previous paragraph. He found a freaking tracking device underneath his car for Pete’s sake (by the way, who is Pete?). Imagine you were driving down the street and suddenly found a weird electronic device underneath your car, you’d probably freak out, too. I know I would; if I find a bug on my windshield my day is usually ruined.
Afifi alleges that while he was getting his oil changed, he saw something shimmering underneath his car. When he checked, it turned out to be some sort of metallic box with an antenna. The mechanic working on his car had no idea what it was, but the internet did. After posting pictures online, Afifi soon discovered that the weird box was actually an electronic tracking device that was only available to law enforcement. The college student soon found out that the FBI was responsible for planting it and now Afifi is getting ready to sue like crazy.
Why is he able to sue? Because the device was planted by the FBI without a warrant and Afifi is arguing to this sort of practice should be banned as unconstitutional. Specifically that it violates the Fourth Amendment’s protection against unreasonable searches and seizures. He also wants an injunction stopping the FBI from continuing to do this to him. Oh yeah, and he’s also suing for monetary compensation. Afifi claims this whole event has caused him to be unable to find a job and therefore it caused him to lose out on money that he would have earned had this whole thing not gone down.
Now certainly I feel bad for Afifi. I would hate to find any sort of tracking device on my property, especially if, as Afifi alleges, there was no reasonable basis for it other than my race and travel preferences. Unfortunately, in the legal world, his argument probably won’t get him very far, at least in terms of winning money damages.
Certainly, in a criminal case, as I’ve discussed many times on this blog, evidence obtained without a warrant is subject to the exclusionary rule. Meaning that evidence can’t be used in court against the defendant and is excluded from the proceedings. So perhaps Afifi may be able to get the court to rule in his favor solely on the point of ruling this sort of unwarranted search and seizure being unconstitutional, but in terms of getting it banned is an entirely different story. The practice is already banned from a criminal defense perspective by way of the aforementioned exclusionary rule. The problem is getting the court to ban the practice in terms of making it illegal for cops to do this. That’s more the province of the legislature, which is tasked with making the law, not the judiciary, which is tasked with interpreting it.
Furthermore, Afifi most likely can’t win any money damages either, because, well you don’t need to have gone to law school to know that trying to show you’ve lost money from lack of employment if you haven’t been employed before is probably not the greatest argument in the world. From a legal perspective, loss of future employment is an incredibly complex litigation area and winning these sorts of cases will be incredibly difficult for Afifi because he alleges that he would have found a job but for all of this never happening.
There are two problems that I see with his case. One, is how can he prove that this significantly affected his job prospects; and two, what criteria would he use to measure his potential loss income? Very complex indeed.
The only thing he’ll probably get is the injunction to stop the FBI from placing tracking devices on him, because well, they probably have already stopped doing it just because of this whole media mess.