Photo Credit: Courthouse News Service, Fourth Circuit grapples with role of airport security staff, https://www.courthousenews.com/fourth-circuit-grapples-with-role-of-airport-security-staff/ (last visited Jan. 5, 2025).
Authored by: Justin Martin
The line between national security and personal liberty is nowhere more tense than at an airport security checkpoint. Every day, millions of Americans submit to intrusive searches as a condition of travel. For two decades, a critical legal question hung over these interactions: If a Transportation Security Officer (TSO) crosses the line from routine screening to committing an intentional tort, like assaulting a passenger or falsely imprisoning a traveler, does the victim have a state-level remedy? Or does the government’s sovereign immunity shield it from liability?
For years, the answer depended heavily on where the plane, so to speak, landed. But a remarkable judicial consensus has recently emerged, culminating in the Eleventh Circuit’s 2025 decision in Koletas v. United States.[1] Just as the courthouse doors seemed to swing open for aggrieved travelers, however, the Supreme Court’s ruling in Martin v. United States placed a new, sophisticated lock on the gate.[2]
The controversy centers on the Federal Tort Claims Act (FTCA). While the Act generally immunizes the United States government from liability for intentional torts like battery or false imprisonment, the “law enforcement proviso” of 28 U.S.C. § 2680(h) re-waives that immunity for acts committed by “investigative or law enforcement officers.”[3] The statute defines these officers through a disjunctive structure: they must be empowered by law to execute searches, seize evidence, or make arrests for violations of federal law.
The government has historically argued that TSOs are “screeners,” not officers.[4] Relying on the Aviation and Transportation Security Act (ATSA), the government contended in Corbett v. TSA that TSOs conduct “administrative” screenings rather than criminal investigations, and therefore do not “execute searches” within the meaning of the FTCA proviso.[5] For years, this “administrative search” distinction successfully barred lawsuits.
The jurisprudential tide turned with the Third Circuit’s 2019 en banc decision in Pellegrino v. TSA.[6] The court rejected the government’s distinction between administrative and investigatory searches, holding that a TSO’s physical examination of a passenger is undeniably a “search” under the plain meaning of the statute.[7] This ruling triggered a domino effect across the federal judiciary. Between 2020 and 2024, the Eighth Circuit in Iverson v. United States, the Fourth Circuit in Osmon v. United States, the Ninth Circuit in Leuthauser v. United States, and the Tenth Circuit in Mengert v. United States all adopted the textualist view that TSOs are officers because they are empowered to execute searches for violations of federal law.[8] The government’s warnings that this would “open the floodgates” to liability were consistently rejected in favor of the statute’s plain text.
The circuit split effectively ended in 2025 with the Eleventh Circuit’s decision in Koletas v. United States.[9] Overturning the reasoning of its prior Corbett decision, the court joined its five sister circuits.[10] The Koletas court held that the statutory definition of “officer” unambiguously encompasses TSOs, whose primary duty is to search passengers for prohibited items—acts that constitute searches for violations of federal law.[11] With Koletas, the debate over TSO status is largely settled: TSOs are law enforcement officers under the FTCA.
Just as plaintiffs secured victory on the “officer” status question, the Supreme Court shifted the battlefield. In the 2025 case Martin v. United States, the Court addressed the interaction between the law enforcement proviso and the FTCA’s “discretionary function exception.”[12]
The discretionary function exception immunizes the government from claims based on acts involving an element of judgment or choice grounded in public policy.[13] Consequentley, if an officer committed an intentional tort, the government could not hide behind the discretionary function exception. In a unanimous decision, the Supreme Court vacated that holding.[14] Justice Gorsuch, writing for the Court, clarified that the law enforcement proviso overrides only the intentional tort exception in subsection (h). It does not categorically bar the application of the discretionary function exception in subsection (a).[15]
The implications of Martin for TSO litigation are significant. While Koletas ensures that the government can no longer dismiss cases simply by claiming TSOs are not “officers,” Martin confirms that the government retains a powerful second line of defense. A plaintiff must now clear two hurdles: the “status” prong (that a TSO is an “investigative or law enforcement officer) and the “conduct” prong (that a TSO’s specific actions were not “discretionary”).
This shifts the focus of litigation from the identity of the screener to the nature of their conduct. To survive dismissal, a traveler must allege that the TSO’s misconduct violated a specific, mandatory directive (such as a TSA Standard Operating Procedure) or the Constitution itself. If the TSO was merely exercising judgment, albeit even poor judgment, about how to secure a checkpoint, the discretionary function exception may still shield the government from liability.
Thus, the “administrative employee” defense is dead. The consensus across the Third, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits establishes that TSOs are law enforcement officers under the FTCA. However, the Supreme Court’s decision in Martin ensures that this classification is not a golden ticket to recovery. The courthouse doors are open, but the path to justice remains heavily fortified by the discretionary function exception. Future litigation will likely turn on the specific factual question of whether a TSO’s abusive conduct crossed the line from discretionary judgment to a violation of mandatory federal policy or the Constitution.
[1] 159 F.4th 813 (11th Cir. 2025).
[2] 605 U.S. 395 (2025).
[3] 28 U.S.C. § 2671 et seq.
[4] See Corbett v. Transp. Sec. Admin., 568 F. App’x 690 (11th Cir. 2014) (holding TSOs are not “officers” under the FTCA because they perform administrative screenings).
[5] Id. at 700.
[6] 937 F.3d 164 (3d Cir. 2019).
[7] Id. at 178-80.
[8] Iverson v. United States, 973 F.3d 843 (8th Cir. 2020); Osmon v. United States, 66 F.4th 144 (4th Cir. 2023); Leuthauser v. United States, 71 F.4th 1189 (9th Cir. 2023); Mengert v. United States, 120 F.4th 696 (10th Cir. 2024).
[9] 159 F.4th 813 (11th Cir. 2025).
[10] Id.
[11] Id. at 829.
[12] 605 U.S. 395 (2025); 28 U.S.C. § 2680(a).
[13] Id. at 401.
[14] Id. at 415.
[15] Id. at 405-07.
American Journal of Trial Advocacy 