Journal of Air Law and Commerce


Transportation Security Officers (TSOs) are the Transportation Security Administration’s first line of defense against terrorism in U.S. airways. The American flying public puts their safety, and their luggage, in the hands of these officers, who execute searches that range from metal detectors to physical pat-downs. Since the federal government has mandated searches and screening for airport security, passengers should be able to seek recovery from the federal government where a TSO commits certain intentional torts in the course of duty. Currently, only the Courts of Appeals for the Third Circuit and Eighth Circuit have cleared the runway for such recovery by finding TSOs are “investigative or law enforcement officers” under the Federal Tort Claims Act (FTCA) waiver found in the law enforcement proviso (Proviso).

This Comment will discuss how the courts have interpreted the interplay between the FTCA and the Aviation and Transportation Security Act (ATSA) as to federal liability, leading to a circuit split. This Comment will propose two paths to provide clear recovery for injured passengers. First, Congress should amend the ATSA to designate TSOs as investigative or law enforcement officers. Next, absent legislative action, the U.S. Supreme Court should resolve the circuit split by finding TSOs to be investigative or law enforcement officers based on the ordinary plain meaning of the definition provided in the Proviso.