Can a Virginia citizen, or the Virginia Attorney General, sue the federal government over TSA airport searches under the Fourth Amendment?
Plain-English summary
A delegate asked whether an individual, or the Virginia Attorney General, could sue the federal government over Fourth Amendment violations from airport searches. The AG broke the question in two.
For an individual: yes, the door is open. A Fourth Amendment violation can give rise to a Bivens action for damages against the offending federal officers, even without a statute authorizing the suit. The U.S. Supreme Court recognized this remedy in Bivens v. Six Unknown Agents of the FBI. But the suit has to be brought by the person whose own protection was infringed, and the merits depend heavily on the facts of the individual search.
For the Attorney General: no. Fourth Amendment rights are personal. As the opinion put it, the protection is personal and only the one subject to an allegedly unconstitutional search and seizure may be heard to complain. The Commonwealth does not have standing to assert its citizens' constitutional rights against the federal government, including Fourth Amendment claims.
The opinion also noted that airport screening in general has survived challenge. Whether a particular passenger would have a viable claim turned on the specific facts of their search, which were not provided.
Currency note
This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The scope of Bivens damages remedies in particular has narrowed in later years. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Why can't the AG sue on behalf of Virginians?
Because Fourth Amendment rights are personal. As the opinion states, the Commonwealth does not have standing to assert the constitutional rights of its citizens against the federal government, including Fourth Amendment claims. Only the person subjected to the search may complain.
What's a Bivens action?
A cause of action for damages against federal officers who violate constitutional rights. The opinion explains that, under Bivens v. Six Unknown Agents of the FBI, a search and seizure that violates the Fourth Amendment can give rise to an action for damages against the offending federal officers even without a statute authorizing such relief.
Has TSA screening been struck down anywhere?
The opinion did not catalog specific cases. It noted only that airport screening in general has survived challenge, and that whether any particular search was unlawful would turn on facts not provided.
Could a state legislature pass a law to limit TSA searches?
The opinion didn't address that. It addressed only standing to bring a Fourth Amendment claim. Federal preemption questions, sovereign immunity, and the Tenth Amendment would all play into whether state legislation could constrain federal screening operations.
Could an organization sue on behalf of its members?
The opinion noted that Fourth Amendment rights can be asserted "either directly or through an association." That references the standing doctrine for associations whose members would themselves have standing. So yes, an association of affected individuals could in principle sue, subject to general associational standing requirements.
Background and statutory framework
The Fourth Amendment protects against unreasonable searches and seizures. The opinion describes that restriction on government as directed primarily to protecting individual and personal rights: the protection is personal, and only the person subjected to an allegedly unconstitutional search and seizure may complain.
From that personal-rights premise, the opinion concludes the Commonwealth does not have standing to assert the constitutional rights of its citizens against the federal government, including Fourth Amendment claims.
Under Bivens v. Six Unknown Agents of the FBI, a search and seizure that violates the Fourth Amendment can give rise to an action for damages against the offending federal officers even in the absence of a statute authorizing such relief. The opinion adds that the remedy is fact-specific: search-and-seizure claims depend heavily on their individual facts, so whether any traveler would have a valid claim from an airport search would turn on facts not provided.
The opinion notes only that airport screening in general has survived challenge; it does not catalog the cases or articulate the doctrinal tests behind those outcomes.
Citations
- Va. Code § 2.2-505 (Attorney General opinions)
- U.S. Const. amend. IV
- Bivens v. Six Unknown Agents of the FBI (U.S. Supreme Court; damages action against federal officers)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-046_Bell.pdf
Original opinion text
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General
June 29, 2012
The Honorable Robert B. Bell
Member, House of Delegates
2309 Finch Court
Charlottesville, Virginia 22911
Dear Delegate Bell:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.
Issue Presented
You ask whether an individual or the Attorney General of Virginia may bring suit against the federal government claiming a violation of the Fourth Amendment for searches conducted at airports.
Response
It is my opinion that Fourth Amendment protections are rights attaching to persons that can be asserted only by them either directly or through an association. It is further my opinion that the Attorney General lacks standing to bring such a claim on behalf of citizens of the Commonwealth.
Applicable Law and Discussion
The Fourth Amendment of the United States Constitution prevents the government from conducting "unreasonable searches and seizures." This restriction upon government is directed primarily to protection of individual and personal rights. The protection is personal and only the one subject to an allegedly unconstitutional search and seizure may be heard to complain. Moreover, the Commonwealth does not have standing to assert the constitutional rights of its citizens against the federal government, including claims alleging a violation of the Fourth Amendment.
In Bivens v. Six Unknown Agents of the FBI, "[the Supreme Court of the United States] held that a search and seizure that violates the Fourth Amendment can give rise to an action for damages against the offending federal officers even in the absence of a statute authorizing such relief." Nonetheless, although such Bivens claims have been permitted, the merits of "search-and-seizure claims depend heavily upon their individual facts[.]" Whether any person would possess a valid claim as a result of a search at an airport, therefore, would turn upon facts not provided. I note, however, that airport screening in general has survived challenge.
Conclusion
Accordingly, it is my opinion that Fourth Amendment protections are rights attaching to persons that can be asserted only by them either directly or through an association. It is further my opinion that the Attorney General lacks standing to bring such a claim on behalf of citizens of the Commonwealth.
With kindest regards, I am
Very truly yours,
Kenneth T. Cuccinelli, II
Attorney General of Virginia