Cohen v. TSA, No. 2:16-cv-02529 (W.D. TN., filed June 28, 2016)

Cohen v TSA case docs | Other TSA FOIA docs | Sai v TSA

Hannah Cohen is a 19 year old woman who has been undergoing treatment at St. Jude's for a brain tumor for 17 years. The tumor causes her to have major, obvious disabilities.

On June 30, 2015, when going through a TSA checkpoint, after an alarm startled Hannah, a scuffle ensued that led to Hannah being assaulted by TSA and Memphis Airport police, and arrested. Charges were later dropped. On June 28, 2016, they filed a civil rights lawsuit against the Transportation Security Administration (TSA), Memphis and Shelby County Airport Authoirty (MSCAA), and Memphis International Airport Police Department (MIAPD).

FOIA docs

(See below re lawsuit.)

I pursued FOIA requests to obtain records relating to this incident. My requests have so far turned up the following information. Thanks go to MuckRock for arranging the Tennessee FOI request.

My related FOIA request to TSA is still pending.

Hannah was arrested on June 30, 2015 at 3:05 pm at MEM Checkpoint B, by MIAPD officers Howard Johnson (#A004) and D. Oster (#A014). She was subsequently hospitalized at The Med. Her injury photos were taken by Lt. McCarroll (#A049) at 3:15 pm in front of the sub-station.

According to the police report:

  1. TSA supervisor ("STSO") Calvin Whetstone said that Hannah set off an alarm during screening and was required to go through additional screening. STSO Whetstone claimed that Hannah then "became outraged and started yelling", that she was told that she would have to leave the sterile area if she did not submit to additional screening, and that she said that she would not go through additional screening nor leave.
  2. Ofc. Johnson started to "escort" her out of the sterile area when she "suddenly lashed out", "punching" Ofc. Johnson, who then grabbed Hannah's hands to control her, but Hannah "continued to charge at Ofc. Johnson in a very aggressive motion". Ofc. Johnson then arrested Hannah by executing a takedown maneuver, during which Hannah was hit by "a metal bench leg or the ground", which cut an area above her left eye.
  3. A passenger named Robert Messler came forward to say that he witnessed it and that the police had done nothing wrong, but that he did not have time to give a full statement.

The arrest warrant appears to have been signed by Shelby County Commissioner Smelli Johnson. (I called the Shelby County General Sessions clerk's office to verify this name, but they refused.)

Details: Case # 150476. Booking # 5900194. Offense report # 150467. Charges were dismissed, and the record has been expunged. The charges filed were:

  1. TCA 39-13-101 (Simple assault)
  2. TCA 39-17-305 (Disorderly Conduct)
  3. TCA 39-16-602 (Resisting Official Detention)

Records:

  • Full Cohen v TSA case docs
  • Other press coverage
  • My original disclosures, from FOIA requests (more records pending; will be published here and at Twitter @saizai / Google+ saizai)
    • CCTV
    • MIAPD's injury photos: Hannah on phone; closeup showing injury to eye
    • MIAPD Arrest warrant

      Officer Oster and I was dispatched to the Bravo Checkpoint in regards to a disturbance. Upon arrival suspect Hannah Cohen was irate towards TSA officials, stating she was not going through additional security. Officers told Ms. Cohen if she does not wish to go through additional security she will have to leave the sterile area of the airport. At this time she began to be loud and disruptive, disturbing the flow of everyday business. I then tried to escort her out the sterile area and she began pushing and punching me, hitting me on the chest and the left side of my face. I grabbed Ms. Cohen, and placed her on the ground while she was still fighting. Officer Oster and I placed her under arrest.
    • MIAPD Offense report

      Officers Oster and Johnson were dispatched to the "B" Bravo checkpoint in regards to a disturbance/irate passenger. Upon arrival, TSA supervisor Calvin Whetstone advised that a F/W passenger, found to be Ms. Hannah Cohen, alarmed during the screening process and needed to go through additional screening if she wanted to continue with her flight. When TSA officials explained this to Ms. Cohen she became outraged and started yelling becoming more irate. Her mother, Ms. Shirley Cohen, tried to calm her down but was unsuccessful. At this time officers intervened and explained to Ms. Hannah Cohen that she had to go through the requested/required additional screening if she wanted to catch her fight. Ms. Cohen told officers that she would not do any additional screening and that nobody could make her. Officers exhausted all means of trying to find a method of additional screening that she could agree with. The next step officers took in an attempt to resolve this issue was explaining to Ms. Cohen that if she did not adhere to the TSA security rules and regulations, she would be required to leave the sterile area of the checkpoint. She advised she's not going through additional screening, nor leaving the checkpoint, in a loud aggressive voice. At this time officers began to escort her out the sterile area when she suddenly lashed out, hitting Officer Johnson on the shoulder and chest. Officer Johnson grabbed both of Cohen’s hands to keep her from further attacking and began to back up while Cohen continued to charge at Officer Johnson in a very aggressive motion. Her mother asked if Officers could let her go so she could talk to her. Officer Johnson then let go of both hands and Cohen immediately charged towards him, pushing the officer and punched him on the left side of the face with a closed fist. At this time, Officer Johnson tried to subdue Ms. Cohen by placing her on the ground and putting handcuffs on her. Officers were finally able to get her into handcuffs after a brief struggle. Ms. Cohen was placed under arrest for Disorderly Conduct (TCA 39-17-305), Assault (TCA 39-13-103) and Resisting Arrest (TCA 39-16-602). Officer Johnson advised that he was not injured in the attack. Ms. Cohen sustained injuries to her left eye, a small cut above the eye, during the take down maneuver and was later relocated to the substation where she received treatment. Ms. Shirley Cohen and her daughter (Ms. Hannah Cohen) were rebooked for another flight and, per TSA, Ms. Hannah Cohen would be able to fly pending her cooperation next time. Officers Maxwell, Staten, Carlson, and Whitehead made the scene and assisted in officer safety and information gathering. Lt. McCarroll made the scene to take pictures of the injury to Ms. Cohen. While Lt. McCarroll was on the scene, he was approached by a flying passenger, found to be Mr. Robert Messler, who advised that he witnessed the entire altercation and that the officers did nothing wrong. He left his contact information so he could be contacted at a later date if his statement was needed. Mr. Messler advised that due to a short connection time with his flight, he would not be able to complete a written statement. The mother, Shirley Cohen, advised that they were in Memphis to have Hannah seen by doctors from St. Jude Hospital due to a brain tumor that Hannah had at the age of 2. Shirley Cohen advise that her daughter was currently taking several types of medications as a result of the tumor and that she also suffered from outbursts. Hannah showed the symptoms of a person that may have suffered a stroke by displaying a weakness to the left side of her face and also suffered from a cataract in her left eye. Shirley Cohen advised Lt. McCarroll that her daughter had successfully graduated from High School and that she planned on going to college in the fall. Paramedic unit 19 made the scene, assessed her injury and offered treatment. Hannah Cohen was transported, in custody, by MFD Unit 19 to The Med for evaluation. Officer Oster rode inside the MFD unit with Hannah Cohen while Officer Johnson followed behind in a patrol car. Once at the MED, custody of Cohen was then switched from MAPD to that of Shelby County SO.
    • MIAPD Record of arrest

      Officer Oster and I was dispatched to the Bravo Checkpoint in regards to a disturbance. Upon arrival suspect Hannah Cohen was irate towards TSA officials, stating she was not going through additional security. Officers told Ms. Cohen if she does not wish to go through additional security she will have to leave the sterile area of the airport. At this time she began to be loud and disruptive, disturbing the flow of everyday business. I then tried to escort her out the sterile area and she began pushing and punching me, hitting me on the chest and the left side of my face. I grabbed Ms. Cohen, and placed her on the ground while she was still fighting. Officer Oster and I placed her under arrest. She was transported to Jail E…
    • MIAPD Use of force report

      Resistance/Threat Used by Suspect: Aggressive Physical Resistance (Hostile Attacking Movements Threatening Injury)
      Progressive Forced Used by MAPD Member: Mechanical Control (Take down)

      While attempting to escort suspect out of the screening area after refusing to comply with the process, suspect lashed out and struck Office Johnson in the chest with her hand/fist. Officer Johnson attempted to disengage and suspect continued to aggressively charge and attack Officer Johnson, striking him in the face/neck area. Officer Johnson completed a takedown maneuver and in the process, the suspect struck either a metal bench leg or the ground, cutting open a small area above her left eye. MFD arrived, treated and transported suspect to the Med before suspect was taken to Jail East for the charges of Disorderly Conduct, Assault and Resisting Arrest.

Cohen v TSA Lawsuit

(See above re FOIA docs.)

Docket (as of 2016-09-23)

Filings (with my summaries):

  • 2016-07-03 12-1 Amended complaint

    Complaint under ADA, Rehabilitation Act, and TN intentional & negligent infliction of emotional distress. Hannah Cohen (daughter) has severe impairments from brain tumor treatment obvious on sight. Hannah tripped an alarm at the TSA checkpoint, which made her disoriented. TSA failed to recognize. Shirley Cohen (mother) tried to explain but was ignored. Checkpoint "personnel" assaulted Hannah, causing physical & emotional injury to Hannah and emotional injury to Shirley. Checkpoint "personnel" arrested Hannah. She was later arraigned, but charges were dismissed. $100,000 damages requested, plus costs.

  • 2016-07-29 20 MSCAA Answer; 20-1 Exhibit A - Redacted TSA contract
  • 2016-07-29 21 MIAPD Answer
  • 2016-08-10 22 MSCAA Motion for judgment on the pleadings; 22-1 Memorandum in support
  • 2016-08-10 23 MIAPD Motion for judgment on the pleadings; 23-1 Memorandum in support

    tl;dr: MSCAA and MIAPD say their employees didn't hurt anyone; that if they did, it's Hannah & Shirley's fault; that the agencies are not liable because of sovereign immunity; and that the complaint isn't specific enough under TN law. However, they don't defend the individual cops, individual TSA agents, or TSA itself. TSA has not yet responded at all. Individual cops or TSA agents have not been sued, and no FTCA claim was made. MSCAA/MIAPD deny receiving federal funding for the screening program, but their own attachment proves that TSA does pay them for related services, though TSA does the screening.

    Extract of both MSCAA and MIAPD Answers and MSJs; everything applies to both except where noted

    • Defenses raised:
      • Failure to state claim
      • TCA § 29-20-205 grants immunity from performance of discretionary function
      • TCA § 29-20-201 et seq is defense
      • TCA § 29-20-307 requires state court jurisdiction for state torts, so no federal subject matter jurisdiction
      • MSCAA & MIAPD are governmental entities and torts alleged are not exempted from immunity by TN Governmental Tort Liability Act, TCA § 29-20-101 et seq
      • self-defense and defense of others;
      • awful arrest
      • justification
      • sudden emergency
    • Responses:
      • Admitted: 1, 2, 4, 7-9
      • Denied: 3, 11, 12, 19-28 (also deny: plaintiffs entitled to punitive damages); general denial
      • Lack info: 5, 6, 10
      • Partial response (otherwise denied):
        • 13 (admit: plaintiffs were in MIA 2015-06-30, TSA screening required before boarding per contract)
        • 17 (admit: police had to use reasonable force to subdue Hannah after she attacked him)
      • Partial response (otherwise lack info):
        • 14 (admit: Hannah went through a TSA scanner, which triggered sensors; no MSCAA or MIAPD personnel at checkpoint)
        • 15 (deny: Hannah has obvious disability)
        • 16 (deny: MSCAA or MIAPD agents assaulted Hannah causing physical or emotional injury; Shirley tried to tell MSCAA agents about Hannah's tumor and disabilities; any injury from MSCAA or MIAPD acts; plaintiffs injured in manner or extent alleged)
        • 18 (admit: airport police arrested Hannah; deny: Hannah transferred to Memphis PD)
    • Affirmative defenses:
      • burden of proof on plaintiffs
      • doctrine of comparative fault
      • Shirley negligently caused the injury because she failed to:
        • act with due care
        • follow TSA guidelines
        • exercise control
        • prevent Hannah from attacking police
        • warn MSCAA or MIAPD agents of special needs
      • Shirley assumed the risk under existing conditions
      • Hannah caused any injury by:
        • refusing to obey police instructions
        • disorderly conduct
        • violence against police
        • "vehemently" resisting & attempting to prevent lawful arrest
        • becoming "irrational" and exhibiting "threatening behavior"
        • creating hazardous conditions
        • obstructing police
        • knowingly hindering security procedures
        • refusing to submit to additional TSA screening or leave the secure area
        • failing to follow TSA guidelines
      • MSCAA & MIAPD immune from state law allegations under TN Governmental Tort Liability Act, TCA 29-20-201, 29-20-205 (TGTLA)
      • Hannah is guilty of these violations, which are negligence that caused the injury
        • TCA 39-16-602 resisting arrest
        • TCA 39-17-305 disorderly conduct
      • punitive damages not recoverable against a government entity under state or federal law
      • damages limited under TCA 29-20-101 et seq
      • MSCAA & MIAPD do not control the checkpoint or screening
    • Other arguments:
      • (MIAPD only) MIAPD is not a distinctly suable entity, because it is a creation / department of MSCAA, per TCA 42-4-107
      • plaintiffs didn't explicitly allege that MSCAA/MIAPD employees were acting within the scope of their employment, per TGTLA
      • plaintiff's didn't explicitly allege that none of the TCA 29-20-205 exceptions of immunity are applicable
        29-20-205 reserves governmental entity immunity for: (1) discretionary functions; (2) false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights; (3) licensing etc; (4) inspection of property; (5) prosecution, including malicious; (6) misrepresentation; (7) riots etc; (8) taxes; and (9) pre-2005 Y2K bugs.
      • TSA prohibits MSCAA/MIAPD from controlling screening, so they aren't liable for claims about the screening

  • 2016-09-02 28 TSA Motion to dismiss
  • 2016-09-02 29 Court Order granting motion to extend 25
  • 2016-09-15 30 Sai Motion for leave to intervene, 31 Motion for CM-ECF access, 32 Motion to compel State Defendants to file unredacted exhibit, and for order to show cause as perjury of affiant Brian Kuhn
  • 2016-09-15 33 Joint Report re FRCP 26(f) discovery plan, 34 Motion to stay ADR requirements pending dispositive motions
  • 2016-09-21 35 Minute Entry for proceedings held before Judge Sheryl H. Lipman: Scheduling Conference held on 9/21/2016. Kelly Pearson and William Hardwick appearing for the Plaintiffs. James Cresswell and Samuel Keenan Carter for the Defendants. 34 Joint Motion to Stay the Court's ADR Requirements denied - order to be entered. Non-Jury Trial set for Monday, 10/16/2017 at 9:00 AM in Courtroom 4 - Memphis before Judge Sheryl H. Lipman. Trial is estimated to last 2-3 days. Pretrial Conference set for Friday, 10/6/2017 at 9:00 AM in Courtroom 4 - Memphis before Judge Sheryl H. Lipman. Proposed Joint Pretrial Order due by 9/29/2017. Scheduling Order to be entered. (Court Reporter Brenda Parker.) (jpw) (Entered: 09/21/2016)
  • 2016-09-21 36 Court Setting letter, 37 Order denying motion to stay ADR 34, 39 Scheduling order
  • 2016-09-21 38 MSCAA Corrected (unredacted) exhibit 20-1, 21-1
  • 2016-09-23 Cohen 40 Response in agreement with MIAPD MJP 23, 40-1 Memorandum; 41 Opposition to MSCAA MJP 22, 41-1 Memorandum; 42 Opposition to TSA MTD 28
  • 2016-09-28 43 MSCAA Reply to 41 re MJP 22
  • 2016-09-30 44 TSA Opposition to Sai motion to intervene 30
  • 2016-10-04 45 MSCAA & MIAPD Notice of adoption of TSA's opposition 44 to Sai motion to intervene
  • 2016-10-06 46 TSA Reply re TSA MTD 28
  • 2016-10-21 47 Sai Reply re motion to interfene and unopposed motion for leave to file same
  • 2016-10-31 48 MSCAA Notice of service of discovery
  • 2016-11-08 49 Court Order denying intervention
  • 2016-11-10 50 Court Order re MJP and MSJ