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Legal Report August 2014


IMMUNITY. A federal court has ruled that Transportation Security Administration officers (TSOs) are not immune from civil suits when they exercise their authority to knowingly violate established constitutional rights.

On July 29, 2006, Nadine Pellegrino and her husband, Harry Waldman, arrived at the Philadelphia International Airport to take a flight to Florida. At the security checkpoint, Pellegrino was told by a Transportation Security Administration (TSA) employee to step aside for additional screening. Pellegrino had three bags with her. A male TSA employee placed Pellegrino’s bags on a search table and began to open one of them. She told the employee that she wanted a private screening. TSO Nuyriah Abdul-Malik arrived at the checkpoint to complete Pellegrino’s screening. Abdul-Malik was wearing gloves when she arrived, and Pellegrino asked her to change her gloves before beginning the screening. Abdul-Malik complied, but in the process contaminated the new set of gloves.

After changing her gloves, Abdul-Malik moved Pellegrino’s bags to a private screening location, a thin walled partitioned cubicle with a door. Two other TSA employees joined them in the cubicle; one swabbed the front and back of Pellegrino’s shirt and left, and the other, TSO Laura Labbee, remained.

Abdul-Malik examined Pellegrino’s luggage, which Pellegrino said resulted in damage to her belongings. She threatened to report the TSOs’ treatment of her to their superiors. After the screening was completed, Pellegrino removed her luggage from the screening cubicle, during which Abdul-Malik and Labbee said she hit them with her bags.

The two TSOs said they wanted to press charges, summoned the police, and had Pellegrino arrested. Abdul-Malik and Labbee swore out criminal complaints, and the third TSA employee wrote out a witness statement. The police frisked Pellegrino, handcuffed her, and escorted her from the airport.

Pellegrino was initially charged with 10 criminal violations, including felony aggravated assault and misdemeanor charges of possessing instruments of a crime, making terroristic threats, simple assault, and recklessly endangering another person. Her husband posted a $400 bond and she was released 18 hours later. The two felony counts were dismissed shortly after her release, but on the rest of the counts the case went to trial. A jury found her not guilty.

The TSA then pursued a civil action against Pellegrino, and Pellegrino filed charges of her own. In the suit, Pellegrino charged the United States with property damage, false arrest and false imprisonment, malicious prosecution, and civil conspiracy under the Federal Tort Claims Act (FTCA). She also charged Abdul-Malik and Labbee for retaliatory prosecution under the First Amendment, malicious prosecution under the Fourth Amendment, and conspiracy to engage in malicious prosecution.

In contrast, Abdul-Malik and Labbee maintained that, as TSA employees, they were not law enforcement officers, therefore, they could claim sovereign immunity. (Traditionally, government employees are protected under sovereign immunity, a legal theory that prevents government officials from being sued except in specific instances.)

In its ruling, the court held that TSOs Abdul-Malik and Labbee were not “investigative or law enforcement officers” and their sovereign immunity remained intact under the FTCA. The court dismissed Pellegrino’s claims of false arrest, false imprisonment, malicious prosecution, and related civil conspiracy claims.

However, the court allowed Pellegrino’s suit for retaliatory prosecution, malicious prosecution, and conspiracy to engage in malicious prosecution to proceed. It based its ruling on the foundation that government officials may not exercise their authority for personal motives, including in response to real or perceived slights to their dignity—such as Pellegrino’s threat that she would report the TSOs to their supervisor.

In its opinion, the court wrote that Pellegrino was within her rights to report the TSOs to their supervisors for conduct she perceived to be inappropriate without facing retaliatory action, including being arrested or prosecuted. Instead, Abdul-Malik and Labbee “should have known they were exercising their authority in violation of well-established constitutional rights.”

Additionally, the court allowed Pellegrino’s suit for property damages to proceed, as the damage Abdul Malik allegedly did to Pellegrino’s belongings during the search was a standalone claim. (Pellegrino v. U.S. Transportation Security Administration, U.S. District Court for the Eastern District of Pennsylvania, No. 09-5505, 2014)

BRIBERY. A federal appeals court has ruled that it is not necessary to have actual power over a government agency to be convicted of corruption. Instead, bribing an official who could influence the agency’s actions is sufficient evidence to convict an official.

John Bencivengo, mayor of Hamilton Township, New Jersey, had previously served on the Hamilton Township School Board, and was chairman of the local Republican Party. He was also close friends with Marliese Ljuba.

Ljuba was the insurance broker for the Hamilton Township School District, and she earned between $600,000 and $700,000 annually in commissions from insurance contracts with the district alone. In 2011, the district’s insurance contracts were up for renewal. Instead of renewing the contract held by Ljuba’s firm, one school board member suggested placing the contract up for bid.

In March 2011, Bencivengo, who was facing financial difficulties, asked a colleague to approach Ljuba about providing financial assistance. In May, Ljuba met with Bencivengo and agreed to pay him $5,000. Ljuba suggested that, instead of taking a loan, Bencivengo should repay her by convincing the school board to renew the contract with her firm. Bencivengo agreed.

They then agreed that Ljuba’s husband would write a check to the colleague’s wife and put in the memo line that the check was for a “cherry bedroom set.” That money would then be transferred to Bencivengo.

On June 29, 2011, Bencivengo approached Ljuba again, asking for her assistance. By this time, Ljuba was working with the FBI to document corruption and was recording her conversations with Bencivengo. She agreed to assist him as long as Bencivengo agreed to influence the school board to not put the district’s insurance contract out for bid.

Then, on July 11, 2011, Ljuba told Bencivengo that she wanted to select the next person to fill a vacant seat on the school board. Bencivengo said he would approve this person, although he had no actual power to place someone on the board. They discussed how Ljuba was going to pay Bencivengo and agreed that the money would be exchanged during a trip to Atlantic City.

On July 28, 2011, Bencivengo met Ljuba in Atlantic City and she gave him $5,000. He told her that he had urged a member of the school board to support not putting the insurance contract out for bid and to run for the State Assembly.

Bencivengo was then charged with two counts of extortion under federal law and two counts of violating the Travel Act, part of the New Jersey bribery statute. The federal government charged that under New Jersey law, it was not required to prove that Bencivengo had the official power to guarantee, deny, or influence any official actions. All the government needed to prove was that Ljuba “reasonably believed” that Bencivengo had the “actual, residual, or anticipated official power to help” her with matters before a government agency.

A jury found Bencivengo guilty on each count and he appealed the decision, arguing that the government failed to identify any official act that was involved in the bribery. He also argued that as mayor, he had no official authority over actions of the school board and therefore, no power to replace a member or to ensure that Ljuba retained the insurance contract with the district.

The U.S. Third Circuit Court of Appeals upheld the district court’s ruling. In the opinion, the judges wrote that even though Bencivengo did not have the power to award the insurance contract to Ljuba or remove a school board member, his position as mayor gave him influence over school board members and Ljuba believed he had influence.

The court ruled that “it is enough that Ljuba believed that Bencivengo’s position gave him influence, and not ‘effective power,’ over the school board’s decision with regard to the insurance contract” to convict him. (United States v. Bencivengo, U.S. Court of Appeals for the Third Circuit, No. 13-1836, 2014)


SURVEILLANCE. The House of Representatives has passed a bill that would amend the Foreign Intelligence Surveillance Act (FISA) of 1978 to place limits on bulk collection of metadata. Known as the USA Freedom Act, H.R. 3361 seeks to amend the Foreign Intelligence Surveillance Court (FISC), the use of national security letters, and how the federal government collects and searches massive amounts of collected data.

If it were to go into effect, the bill would require the FISC to vet National Security Agency (NSA) selection terms—such as telephone numbers and e-mail addresses—that are used to sort through Americans’ phone, Internet, and financial records. However, the bill would leave the definition of selectors open, meaning that it could still be used to collect all of the phone records in a particular area code or through a similar search measure.

The bill was introduced by Rep. James Sensenbrenner, Jr. (R-WI) and has 152 cosponsors. It has not been taken up by the Senate.

PRIVACY. Sen. Al Franken (D-MN) has reintroduced legislation (S. 2171) to ban companies’ surreptitious collection of location data from smartphones and other electronic devices. Franken introduced a similar bill in 2011, which cleared the Senate Judiciary Committee, but it was not brought to the floor for a vote before the full Senate.

If passed, the bill—called the Location Privacy Protection Act—would order companies to secure the permission of their customers before gathering location data from smartphones, tablets, and navigation devices used in cars. Businesses would also be prohibited from sharing the information with third parties, unless they get consent from their customers.

The bill is cosponsored by Senators Christopher A. Coons (D-DE) and Elizabeth Warren (D-MA). It is currently pending in the Senate Judiciary Committee.

PUBLIC ALERTS. A bill to modernize and implement the national integrated public alert and warning system has been amended by a voice vote in the House of Representatives Homeland Security Committee. The bill (H.R. 3283) amends the Homeland Security Act of 2002 to establish or adapt common alerting and warning protocols, standards, terminology, and operating procedures for a national public alert system.
The measure was introduced by Rep. Gus Bilirakis (R-FL) and lays out provisions for the secretary of Homeland Security, including ensuring that the alert system is integrated into the National Incident Management System, that it uses the National Terrorism Advisory System, and that the overall system is periodically tested every three years to ensure that it is functioning properly.

The bill is now under the consideration in the House Homeland Security Committee.


Liability. Two California lawmakers introduced a bill that would make retailers responsible for customers’ financial losses after a business data breach. The bill, A.B. 1710, would shift the responsibility for data breaches from banks and credit card issuers to the retail businesses where the breach occurred. In turn, this would make retailers responsible for notifying customers of hacking incidents and would make them liable for financial damages.

The measure was introduced by Assemblymen Roger Dickinson (D-Sacramento) and Bob Wieckowski (D-Fremont). In addition to the changes for liability, the bill would also ban the sale of Social Security numbers.

This column should not be construed as legal or legislative advice.