Man Upholds His Constitutional Rights; Allowed to Pass Without Backscatter or Groping

by | Nov 23, 2010 | Headline News | 39 comments

Do you LOVE America?


    When Matt Kernan reentered the United States last weekend he was greeted by TSA backscatter machines and the option to receive a pat-down. All individuals, whether citizens or foreigners are required to be screened before they enter US soil, even if they had been screened at their originating airport.

    In Kernan’s case, he refused to be backscatter scanned for health reasons and informed TSA officials that if he was intrusively patted down he would consider the action assault and would subsequently file charges against TSA personnel. Like John “Don’t Touch My Junk” Tyner, Mr. Kernan recorded the engagement on his iPhone after advising TSA and the police department that he would do so.

    We often asks how do we effect change in America? We start at the individual. We do what John Tyner and Matt Kernan did and exercise our Constitutionally protected rights – in this case, the 4th Amendment (and arguably, a host of others).

    Edmund Burke once said that “all that is necessary for the triumph of evil is that good men do nothing.”

    We are not implying that TSA screeners and technicians are evil, in fact, it’s just the opposite in this case. They work for a system that many consider as such because of its clear violations of the fundamental rule of law on which our country was founded. Here, TSA officials could have been evil, but they weren’t. They could have put Mr. Kernan in a secure room, stripped him of his belongings, cleared his iPhones memory card and arrested him for any number of trumped up charges. Cooler heads prevailed, however, and the TSA officials on the ground, seemingly just as tired and aghast at the policies of Janet Napolitano and Barrack Obama (and make no mistake, these policies come straight from the top), respected the Constitutional rights of an American citizen.

    Matt Kernan did not let the evil of tyrannical government ideology violate his personal rights. The TSA and local law enforcement officials involved did not let their egos get into the way of respecting Mr. Kernan’s rights. This is how the system should work.

    Kernan’s experience and Constitutionally-based argument proves that both, the backscatter and the intrusive pat down, can be legally avoided.

    There are several recordings of the incident posted on Kernan’s blog. The Main Argument is available for viewing below and an excerpt of Kernan’s account follows.

    Here is an excerpt from Kernan’s blog detailing his experience and the main points in his argument, which seem to have countered TSA policies:

    (emphasis added)

    After putting all my stuff through the x-ray, I was asked to go through the Backscatter. I politely said that I didn’t want to. The technician quipped to his colleague, “We’ve got an opt-out.” They laughed. He turned back and started to explain.

    After he finished, I said, “I understand what the pat-down entails, but I wanted to let you know that I do not give you permission to touch my genitals or the surrounding area. If you do, I will consider it assault.”

    He called his manager over, who again informed me of the policy. Throughout this event, this happened quite a few times. After raising my concerns regarding the policy to an officer, they often simply quoted back the policy. For the sake of brevity, I will simply say “Policy restatement.”

    I said, “I am aware that it is policy, but I disagree with the policy, and I think that it is unconstitutional. As a U.S. citizen, I have the right to move freely within my country as long as I can demonstrate proof of citizenship and have demonstrated no reasonable cause to be detained.”

    Policy restatement. “You have two options – the Backscatter or the pat down. It is your choice, but those are the only ways you can go through security.”

    I asked if I could speak to his manager.

    “I’m the supervisor here.”

    “Do you have a manager?”

    “Yes, but he’s very far away at the moment. And he’ll say the same thing I am.” Policy restatement.

    At this point, I took out my iPhone, activated the voice recorder, and asked The Supervisor, “Per my constitutional rights, I am not allowed to be detained without reasonable cause for arrest. Now, am I free to go?”

    He answered, “If you leave, we will call the APD.”

    I asked, “Who is the APD?”

    “The Airport Police Department.”

    I said, “Actually, that’s probably a good idea. Let’s call them and your manager.”

    The Supervisor turned and walked away without saying anything. I stood and waited, chatting to The Technician about how they aren’t allowed to wear radiation badges, even though they work with radiation equipment. He said, “I think I’m a couple steps ahead of you regarding looking out for my own health.”

    I stood and waited for 20 minutes. Two cops showed up. Big ones. I admit, I did not want to be handcuffed by these guys.

    One cop was older than the other, but they were still clearly partners. Neither of them took the lead on answering my questions, and neither of them told the other what to do. They came over to me and asked me to explain the issue. I first showed them the iPhone. After I explained my position, they restated the policy to me.

    I said, “Yes sir. I understand the policy, but I still disagree and I still don’t think that I can be made to do these searches in order to go home. Now am I free to go?”

    They didn’t answer.

    I repeated the question. “Since you are actual police officers and not simply TSA, I am sure you have had much more training on my rights as a U.S. citizen, so you understand what is at stake here. So, am I free to go? Or am I being detained?”

    Young Cop answers, “You aren’t being detained, but you can’t go through there.”

    “Isn’t that what detaining is? Preventing me from leaving?”

    “You can leave if you want, but it has to be that direction.” He points back towards customs.  Young Cop asks, “Why are you doing this?”

    I explain that I’m worried that the Backscatter has unproven health risks. And that for all he knows, I might be a sexual assault victim and don’t feel like being touched. I say that the policy is needlessly invasive and it doesn’t provide any added security.

    He asks, “But didn’t you go through this when you left on your flight?”

    “Yes,” I say, grinning, “But I didn’t want to miss my flight then.”

    The cops leave, and I stand around and wait some more. It should be noted that throughout this time, no fewer than 10 TSA officers and technicians are standing around, watching me. I was literally the only one still waiting to go through security.

    The cops, The TSA Supervisor, and another guy were standing behind the checkpoint deliberating about something. I explained this to my iPhone and The Supervisor shouted, “Does that thing have video?”

    “No sir. Just audio.” I was telling the truth – I’m still on an iPhone 3G.

    After a while, Young Cop comes and asks me for my papers. My passport, my boarding pass, my driver’s license, and even a business card. I give him everything except the business card. He told me that he was just gathering information for the police report, which is standard procedure. I complied – I knew that this was indeed standard.

    He left, and a Delta Airlines manager comes over and starts talking to me. He is clearly acting as a mediator. He asks what I would consent to, if given my options. I explain that I want the least intrusive possible solution that is required. I say, “I will not do anything that is not explicitly stated on recording as mandatory.” He leaves.

    Let me pause and clarify the actors’ moods here, because they will soon start to change:

    • The Supervisor: Very standoffish. Sticking to policy, no exceptions.
    • The TSA Officials: Mainly amused. Not very concerned otherwise.
    • The Cops: Impartial observers and consultants. Possibly a bit frustrated that I’m creating the troubles, but being very professional and respectful regardless.
    • The Delta Supervisor: Trying to help me see the light. He doesn’t mind the work – he’s here all day anyway, so he’d rather spend it ensuring that his customer is happy.

    After another wait, Old Cop returns, and asks me what I want. I tell him, “I want to go home without going through the Backscatter and without having my genitals touched. Those are my only two conditions. I will strip naked here if that is what it takes, but I don’t want to be touched.”

    He offers as an alternative, “What if we were to escort you out with us? It would involve a pat-down, but it would be us doing it instead.”

    “Would you touch my balls?”

    “I don’t want to touch your – genital region, but my hand might brush against it.”

    I clarify, “Well, like I said, I’ll do whatever you say is mandatory. If you tell me that you have to touch my balls—“

    “—I said no such thing. You’re putting words in my mouth.”

    “OK. I apologize. If you say that a pat-down is mandatory, and that as a condition of that pat-down, I may have my genitals brushed against by your hand, even though you don’t want to, I will do that. But only if you say it is mandatory.”

    “I’m not going to say that.”

    “OK. So am I free to go?”

    “You are free to go in that direction.” He points back towards customs. Then he walks away to commune with the others.

    My iPhone is running out of battery, so I take out my laptop, sit in a corner, and plug it in. I have some work to do anyway, so I pull up Excel and start chugging away for about 20 minutes.

    This is where the turning point happens.

    The cops come back and start talking with me. Again, they are asking why I’m doing it, don’t I have a connection to make, etc. They are acting more curious at this point – no longer trying to find a contradiction in my logic.

    I eventually ask what would happen if I got up and left, and just walked through security. They shrugged. “We wouldn’t do anything on our own. We are only acting on behalf of the TSA. They are in charge of this area.”

    “So if he told you to arrest me, you would? And if he didn’t, you wouldn’t?”

    “That’s right,” Young Cop says.

    “OK well then I think it is best if we all talk together as a group now. Can you call them over?”

    The Supervisor returns, along with the Delta Manager. The Supervisor is quite visibly frustrated.

    I explain, “The police have explained to me that it is your call on whether or not I am being detained. If I walked through that metal detector right now, you would have to ask them to arrest me in order for them to do anything.”

    He starts to defer responsibility to the officers. They emphasize that no – they have no issue with me and they are only acting on his behalf. It is his jurisdiction. It is policy. They won’t detain me unless he tells them to.

    So I emphasize the iPhone again, and ask,” So, if I were to get up, walk through the metal detector, and not have it go off, would you still have them arrest me?”

    The Supervisor answers, “I can’t answer that question. That is no longer an option because you were selected for the Backscatter.”

    “Well you can answer the question because it is a yes or no question. If I got up and left, would you have them arrest me?”

    “I can’t answer that question.”

    The moods have changed. The cops are now frustrated with him because he’s pawning off his decision-making responsibility to them. He’s stopping what is clearly a logical solution to the problem. Meanwhile, the Supervisor is just growing more and more furious with me.

    In another deferment of responsibility (which he probably thought was an intimidation factor), “Well then I guess I’m just going to have to call the FSD.”

    Unphased, I ask, “What’s the FSD?”

    “The Federal Security Director.” And he walks away.

    I can see him talking on the phone to the FSD – a man apparently named Paul – and I can only catch parts of the conversation:

    • “No, he’s been perfectly polite…”
    • “We tried that…”
    • “All he said was … Constitutional rights”

    He walks over to Old Cop and hands him the phone. I can hear similar sound bites. They hang up, deliberate some more, and then wait some more.

    Meanwhile, I’m typing away on my computer. Answering emails, working on my Excel model – things that I would have done at home regardless.

    The Supervisor walks over and stands uncomfortably close to me. After typing for a bit more, I look up. His voice shakes, “I don’t know if I ever introduced myself.” He pulls out his badge. “My name is XXX XXX. Here is my badge. Now, I’ve shown you my credentials.”

    Ah – he’s gotten the Miranda talk. I hide my smile.

    “Here’s what we’re going to do. I’m going to escort you out of the terminal to the public area. You are to stay with me at all times. Do you understand?”

    “Will I be touched?”

    “I can’t guarantee that, but I am going to escort you out.”

    “OK. I will do this. But I will restate that I still do not give you permission to touch my genitals or the surrounding area. If you do, I will still consider it assault.”

    “I understand.”

    And then came the most ridiculous scene of which I’ve ever been a part. I gather my things – jacket, scarf, hat, briefcase, chocolates. We walk over to the staff entrance and he scans his badge to let me through. We walk down the long hallway that led back to the baggage claim area. We skip the escalators and moving walkways. As we walk, there are TSA officials stationed at apparent checkpoints along the route. As we pass them, they form part of the circle that is around me. By the end of the walk, I count 13 TSA officials and 2 uniformed police officers forming a circle around me. We reach the baggage claim area, and everyone stops at the orange line. The Supervisor grunts, “Have a nice day,” and leaves.

    In order to enter the USA, I was never touched, I was never “Backscatted,” and I was never metal detected. In the end, it took 2.5 hours, but I proved that it is possible. I’m looking forward to my next flight on Wednesday.

    If you’ve decided to join the National Opt-Out Day protest scheduled for November 24, 2010, then consider utilizing the arguments of Matt Kernan, as his approach is logical and Constitutionally sound, and seems to be quite effective.

    References: Matt Kernan, Infowars


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      1. Thank you for standing up for ALL of our Rights.
        maybe 2.5 hours you will never get back, but i sure hope it sends a message.
        Time we all stand up for our rights, thank you for the good example

      2. Cool and well played, brother.  Key is never raising one’s voice, using profanity or wild gesticulations.  Always ASK them if you may leave, and if not, why not.  Let them know you have WAY more patience than they do.  The voice recorder is, sadly, mandatory nowadays.

      3. Just heard on CNN..part of Logan (boston) airport shut down..
        found 2 suspicious pakages.
        while the TSA is fondiling the family jewels..the real Terrorists are mailing in their weapons of mass distruction…or so it would seem. the packages are still under” investigation”..but not my package..yet

      4. Wait a minute…people get scanned after getting OFF the airplane in the US?!  I thought the whole reason for the pornoscanners and groping was airline security.  WTF is going on here?

      5. What were they to do?  Send him back overseas, live at the airport?  This guy found a loop in the system.  Good for him!

        VRF..I’ll not believe it even if I see it–another false flag???which gets air time??? the hero or the alleged package??? we’re winning with the hero’s argument…

        fourth amendment…search and seizure needs a warrant…AND probable cause for said warrant…


      7. Very possible a “false flag”..or TSA posturing? trying to make their point to defile our rights and make way for this invasion on our constitutional rights?
        Timing is impecable….wouldnt you say?

      8. Great work….

        I find it interesting that “suspicious packages” have been found just when people are revolting against the “security measures” put in place by the corporation.

        Too bad the people will be fed another near overdose of fear mongering in effort to get them back under control so they can sell more scanners, even though no scanner was used in locating the packages.

        And most will believe they are again in more “terrorist” danger when the only danger comes from the protectors.

      9. Sad, it so happens the Loophole is the Constitution of the United States of America; spelled out clearly in the Fourth Amendment.

      10. Reminds me of the movie “The Terminal” with Tom Hanks.

      11. Pistole Proven Wrong That Flying Is Not a Right

        “Pistole is totally wrong when he says that flying is a privilege, not a right. Flying is a means of travel, and everyone has a right to travel and to travel by a means of their choice. … quote from a Supreme Court case (U.S. v. Guest 383 U.S. 745 (1966)): “In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”

        Another US Supreme Court case, Shapiro v Thompson, 394 U.S. 618 (1969) very strongly supports the right to travel…

        The TSA is violating due process at every turn. They do not have warrants. They detain persons (keep them from proceeding) unless they bow to the TSA’s will and be x-rayed or molested. This detainment is assault in and of itself!…”

      12. Now if only EVERYone did this, we’d have a country again.  Or even a tenth of us.

        Either ACT or die, because the series of red lines we have allowed them to violate for years now has only ushered in an escalation of the next red line’s violation and outrage.  Gradualism, Fabian Fascism its called.

      13. That was really interesting Matt, thanks.

      14. Where is Flying on an airplane a right that is protected. Free travel is but when you fly it is by choice. And by now we all know about the checkpoints. If you travel you agree to there rules if you do not like them travel another way. So where does the 4th amendment even become part of this.

      15. I am once again confused. I thought that George ” The Decider” Bush and his crew said, “If we fight them over there, we won’t have to fight them here.” I am not saying GW and his crew were being dishonest in making that sales pitch for the invasion of Iraq and Afghanistan, but I know we are still fighting them over there. So, why so many safety concerns over here? I have only come here seeking logic, it is so hard to find.

      16. We would not have these issue over here if the goverment would allow the miltary and “CIA” to fight the war it should. They want a clean war and they do not work. The only way to win is to get dirty. A clean war make us all just live with it.

      17. I really hope the airlines go busted.  Quit flying folks, use trains, cars,  greyhound bus;   boycott the bastards.  If you fly you’re just pandering to them.

      18. the TSA is using the vast experience of sec’y chertoff and others to make air travel super safe for americans. there has not been an aircraft bombing since the x-ray machines and body searching program was initiated thus attesting to this plans effectiveness

        anyone objecting to this sophisticated safety program should be arrested and prosecuted for disrupting national defense,

        god bless america and god bless sec’y chertoff.

      19. Mike, your first statement sounds like you are a smoking liberal with no brains & foresight.  Your second statement sounds very intelligent.  How wise are you?

      20. Comments…..Mushroom……You are an idiot

      21. mushroom…..

      22. If Americans could some how band together and not fly anywhere for a week, period.  (Not a single flight) with the message “end this nonsense immediately”, the airlines would immediately end this nonsense for us.

      23. Israeli airline security screens suspicious characters, like all of you, I presume, by PROFILES, and then INTERVIEWS those that fit their PROFILE before detaining anyone; if anyone.

        TSA needs to do a better job, but the government wants to hire the cheapest, dumbest labor they can find and then automate the process as much as possible to create security.

        Not every Muslin is a terrorist but every terrorist was a Muslim. I wonder, did TSA “pat down” the King of Saudi Arabia when he arrived? Oh, sure, they probably put him in front of the scanner!

      24. The right “to petition the Government for a redress of grievances” is recognized in the First Amendment to the U.S. Constitution. 

        The “REDRESS OF GRIEVANCES” is a right appertaining to every individual  –   which is the right to make a complaint to, or seek the assistance of, one’s government, without fear of punishment or reprisals.


      25. The First Amendment of the United States Constitution is part of the Bill of Rights, which was enacted on Dec/15/1791 and has five constituntional parts:

        1. Protects freedom of religion,
        2. Protects freedom of speech,
        3. Protects freedom of the press,
        4. Protects freedom of the right to assemble,
        5.  Protects freedom to petition the government

      26. Laura, be careful what you wish for…If the airlines go bust, not only will millions more be unemployed, but the broken up parts will be monopolized and nationalized. Don’t like flying now? Wait until the government takes over the airports and aircraft…

        You think ANY forms of public transportation (buses, etc…) will not have intrusive security measures in the very near future? The MSM is ALREADY talking about covering bus and train stations with this BS…

        The only real solution, as I see it, is to convince the vast majority of TSA agents to walk off the job in protest. After all, they’re Americans too, and most don’t like what they’re having to do…  

      27. Plane Guy says, “The MSM is ALREADY talking about covering bus and train stations with this BS…”

        Yes, and doesn’t that make them out to be traitors to the Constitution?
        And perhaps also earn them the label of Loser douche bags?

        If covering bus and train stations with this BS is allowed to happen America is no longer America, it is something else. Heck, it may already be? Who am I kidding, it already is. America Is an outdoor prison of privilege and it will get worse unless individuals stand up for themselves because their so-called leaders are too spineless and PAID for to do so for anyone.

        Stand up Peacefully, just like this true hero did in the article. Many individuals must stand up for their liberty and freedom and if they are beaten down, more must take their place.

        TSA doesn’t need to do a better job, TSA needs to get a different job and let the airlines take over their own safety.

        No where in the Constitution is there anything that gives the goberment the power to provide safety over anything. Therfore, those who support the TSA are against the Constitution, and they are against freedom, and liberty and everything America is supposed to stand for.

      28. (Want to buy a T shirt  ? )

        Can’t see London,
        Can’t see France,
        Until We See Down Your Underpants

        TSA:  We handle more packages than UPS !

        Don’t worry….My hands are still warm from the last guy.

        It’s NOT a GROPE,
        It’s a Freedom Pat

        If we did our job any better
        We’d have to buy you dinner first

        Wanna fly ?
        Drop your fly.

      29. I’m thinking I should have my wife pat me down each morning before I get in my truck………

      30. When Neil Boortz/Hannity/Rush won’t be allowed to fly or voice, it will start to get scary.

      31. Comments….. Plane Guy said: Laura, be careful what you wish for…If the airlines go bust, not only will millions more be unemployed, but the broken up parts will be monopolized and nationalized. Don’t like flying now? Wait until the government takes over the airports and aircraft…
        The government has already taken over the airports and aircraft.  If everyone ops out from flying, the government won’t have any passengers either. Screw’em put them all out of work!  Shut this country down then let’s see what happens.  I can last for a long time, let’s give the government what they want–complete total control.  Just roll over, they win.  We got screwed when Obumma got elected, his agenda has been pegged up a notch or two.  He’s LHAO (laughing his ass off, he hates white people)!

      32. I enjoy all your comments but the first plane of family that are blown up everyone of you will be screaming why didn’t they do more. Remember we also only hear about the failures I wish they would report the successes of the searches and investigations.
        If you do not like the checkpoints travel another way. I do and I travel from the northern border to the southern border monthly. By car it is cheaper most of the times, no searches, no lines, my schedule and I keep my guns and survival gear with me at all times.
        And I was called a liberal by someone and that seems to be the first statement someone say here if they do not agree. If you only knew. I have seen first hand the turn around in attitude as soon as a death happens look at the attitude towards the police they suck until you need them. (I do believe you should still defend yourself). We need to just let the extremist know we are tired of this and stop tying the hands of the military and overseas services. Let the military use bigger bombs and the “CIA” kill who needs to be killed. Most of these other country will agree behind close doors. Quit trying to make it a clean fight. They never work.

      33. TnAndy,  been to London, been to France & I’m not wearing any under pants!
        Don’t worry….My hands are still moist from the last gal.

      34. I will not be screaming why they didn’t do more.  I’ve been to an aircraft disaster with over a hundred bodies.  I want less.  Less troops over seas, less fiat money, less entitlements going out to the users, less benefits to the the politicians.  Do you really think we wouldn’t hear about “any” TSA successes?  The average full time TSA worker earns 29K.  I thank the policeman every time I see them for what they do.  I use to be one! 
        Do you really think it will stop with TSA?  Have you ever had your car searched?  Do you think driving is a right?  But walking/running across our open borders are more of a problem and touching dry soil is a right.  You seem to not have thought out many things.

      35. plane guy: I have mixed feelings about the airlines.  Maybe it’s time they are shut down.  tens of thousands of illegals come to this country from everywhere by plane.  Maybe we would be better off if the airlines did shut down.  I would miss my occassional trips to Hawaii and my yearly trip beack East to visit friends and family.  But maybe oil prices would go down (American airlines use about 20% of the oil in the U.S.).    Maybe air travel is no longer practical. 

      36. It is all for Political Correctness.   97% of Americans do not need to be searched or even metal detected.
        PROFILE FOR THE TERRORIST, and quit looking for the weapon.

        For some reason,  it is politically incorrect,  here in America, to use the best proven way, to stop a terrorist from boarding a plane………. PROFILE !    It works for Israel….it will work here.

        political correctness…….spit!

        Gone with the wind…are you kidding? Exactly how are all these millions of illegals getting here by plane? I am guessing  that you have not gotten off of an international flight recently…To enter the USA you have to come through customs and passport control..You will not be allowed to pass either checkpoint if all of your passport, visa, customs declarations…ect are totally in order… Therefore ALL of the people that pass those points are LEGAL…
        Now, if they choose to overstay their welcome, that is the fault of local law enforcement, INS and Homeland  inSecurity to go find those criminals…The good news is there is an easier solution…if anybody in DC had any Cajonies..(and our elected leaders may not, since they decided that THEY do not have to be groped in the airport (so they can hide their ummm…”little secrets”))…
        How about we deploy 2 or 3 army divisions to the boarders (north and south) and position a soldier about every 500 meters with a rifle and scope and a simple order…shoot anybody who climbs over the barbed wire, makes it through the mine field and then climbs the other fence…. The border could be closed fast cheap and just about totally if we wanted to…
        Anyway…Whats the big deal? If you travel internationally, you get used to getting felt up, or scanned..or pat downed or metal detected all the time… Trust me, if you work around people very much, the TSA agents really are not going to be impressed with anything you have…its just a job…you do it mechaniclly, you hope the person you have to pat down showers and does not pass gas in your work area, and at the end of the shift, they want to tune out and not think about their jobs…How many of you get freeked out by the doctor “touching” you…none, because its their job, and you know they are professional and really could care less about you… My wife is a doctor..After you have seen the tens of thousands of body parts that she has…yawn…reading a phone book is more interesting…
        LostinMissouri….CORRECT Lets save a bunch of needless busywork…profile terrorist types, and leave granny and the 3 year olds alone…
        As for you who think..booo hooo what will you do when a plane gets taken out by these terrorists if we did not do our best? My answer is simple…buy a ticket and fly anyway…your odds of getting killed by lighting, while scuba diving in the desert on a sunny day is far higher than getting murdered by a lunatic who is doing it for Allah…So lets remember what the real dangers you face are, and stop letting the politicians, media and wag-the dog-ers misdirect, mislead, and manipulate you…

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