[blindlaw] Supposedly suspicious behaviors (WAS: conducting investigations)

Mon Nov 5 16:33:07 UTC 2018

Ben:

My post doesn't have much to do with your concerns about cohabitating
landlord discrimination, however. The law for that is about as different
as it could be while still being disability related.

In the US, it is common for cohabitating landlords — like roommates — to
be allowed to discriminate in ways that absentee landlords are not. The
reason is simply that it's their home, and they have some rights to
decide who they want to live with, even if those decisions are bigoted.

As a simple example, it's legal in the US to say "no blacks, no gays, no
blind people" in a roommate ad — even though all of those would be
blatantly illegal to say (or do) in a general renting ad with landlord
off-premises. If someone's a homophobe, living with a gay person would
genuinely impair their ability to enjoy and feel comfortable at home.
Even bigots have the right to feel secure in their own home.

There might be a gray area inbetween (you're only sharing a kitchen,
after all), and maybe Canadian law differs. I'd guess you'll lose this,
but I wish you good luck.

As for TSA, I don't really give a damn if they're unwilling to overhaul
their policies. I tried to negotiate repeatedly, and they refused. Now
I'm suing them for violating the law. If the court agrees with me, then
TSA will either obey or get sanctioned.

Tai:

The policy I reference has no exclusion whatsoever for disability. It's
a list of behaviors and possessions. Nowhere in it does it say that you
don't get the point for no eye contact because you're blind.

You, Tai, are a reasonable person. You recognize that treating that as
suspicious is utterly absurd. You want to read in some sort of "but
don't count it if it's obviously justified" nullifier that isn't there.

Sadly, TSA isn't reasonable. They actually do this. They've done it to
me more than once, including calling the cops on me more than once. Even
though my disabilities were obvious and declared.

IMO this is of course a disproportionate-impact policy. So it's illegal
as a matter of disability law.

However, the underlying policy is also simply not justifiable on its
face. The behaviors are simply not indicators that someone has a weapon,
explosive, or incendiary — and that's all the TSA is allowed to search for.

So I want it banned outright. It doesn't even pass rational basis
scrutiny, let alone elevated or Rehab Act level. Some of it is even
deliberately meant as a restraint on the content of speech (e.g.
complaining about TSA policy), which is strict scrutiny.

I'm not sure what you mean about ocular scanners. TSA doesn't have any,
as far as I know. Maybe you mean CBP?

Sincerely,
Sai
President, Fiat Fiendum, Inc.

On 11/5/18 16:59, Tai Tomasi via BlindLaw wrote:
> Ben:
> 
> This issue is not as black and white as you perceive it. Many TSA agents do not immediately realize I am blind. The same is true in other areas of public participation, despite the fact that I am almost always using a cane or guide dog. Those who do not use canes or dogs likely encounter erroneous assumptions about their vision as well. Therefore, what should be obvious to all is not always so. Policies like the one Sai references should be less presumptive by design. I have similar concerns regarding the increased use of ocular scanners.
>  
> Ms. Tai Tomasi, J.D.
> Pronouns: she/her/hers
> Staff Attorney
> 
> 
> 
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> 
> -----Original Message-----
> From: BlindLaw <blindlaw-bounces at nfbnet.org> On Behalf Of Ben Fulton via BlindLaw
> Sent: Monday, November 05, 2018 9:43 AM
> To: blindlaw at nfbnet.org
> Cc: Ben Fulton <bluezinfandel at hotmail.com>
> Subject: Re: [blindlaw] Supposedly suspicious behaviors (WAS: conducting investigations)
> 
> 
> 
> OK, the obvious argument is that these indicators do not apply to blind and visually impaired people. Recognizing that someone is blind or visually impaired would negate much of this. I now use a dog, but used to use a cane, either of which made it pretty obvious that I am blind. Before then when I was visually impaired and didn't always use a cane, it did result in being asked more about apparently suspicious behaviours. Once I was actually kicked out of a club for stumbling on their poorly designed landing.
> 
> They may argue for more training with respect to disabilities, but may not be willing to overhaul the entire policy. You may have to deal with them seeking for ways to justify maintaining their status quo. 
> 
> One reason I bring this up is because I am looking into a provision in the Ontario Human Rights Code that allows landlords sharing a kitchen or bathroom to discriminate on any of the prohibited grounds of discrimination. Normally if a room is being rented landlords aren't allowed to discriminate against the tenant, but the landlords can if they share a kitchen or bathroom.
> 
> I'm anticipating the argument being that the private sphere is something the legislature doesn't want to interfere with. 
> So, my argument is that by advertising publicly on Kijiji that the landlords have entered a commercial area where the constitution should apply, and therefore the provision in the human rights code is unconstitutional.
> 
> But I'm trying to anticipate the arguments that will be running against me in this challenge.
> 
> All the best,
> Ben  
> 
> 
> 
> Subject: [blindlaw] Supposedly suspicious behaviors (WAS: conducting investigations)
> Message-ID: <cf7a97f4-ff5d-2c0d-f8e0-097b8cb99e65 at fiatfiendum.org>
> Content-Type: text/plain; charset=utf-8
> 
> On the subject of behaviors like gaze, sweat, shuffling, etc not actually having any legitimate bearing on determining suspicion:
> 
> Here's an affidavit I filed in my case against all of TSA's policies.
> 
> At page 41, heading "SPOT behaviors", I exhaustively list behaviors that are on the TSA SPOT ("behavior detection") profiling list, and explain how they are in fact symptoms of my disability, exercise of Constitutional rights, or just being a human.
> 
> PDF (as filed):
> <https://drive.google.com/file/d/0BzmetJxi-p0VOFZXLUdpRzJ6LXc/view?page=41>
> 
> Google Docs version (as drafted):
> <https://drive.google.com/open?id=1XiqxmO3gRTZpXRrBGkEmcTYktJfigneeZdWSkV4npgY>
> 
> 
> Google Docs version of TSA's SPOT checklist (transcribed by me):
> <http://s.ai/tsa_spot>
> 
> 
> Many of the supposedly suspicious behaviors are specifically related to my blindness, namely:
> 
> 1. "Observation and behavior analysis" - 4 or more points = selectee screening, 6 or more points = automatic referral to police
> * 1 point: Arrives ?late ?for ?flight, ?if ?known
> * 1 point: Avoids eye contact with security personnel or LEO
> * 2 points: Powerful ?grip ?of ?a ?bag ?and/or ?hand ?inside ?the ?bag
> * 2 points: Rigid ?posture, ?minimal ?body ?movements ?with ?arms ?close ?to ?sides
> * 3 points: Appears ?to ?be ?confused ?or ?disoriented
> * 3 points: Appears ?to ?be ?in ?disguise
> 
> That's 12 points total, just for perceived symptoms related to my blindness. Well over the 6 points for police referral.
> 
> 2. "Signs of deception" - 2 or more = automatic referral to police
> * Appearing ?not ?to ?understand ?questions
> * Distracted ?or ?inability ?to ?pay ?attention ?to ?present ?situation
> * Gazing down
> * No ?or ?little ?direct ?eye ?contact
> * Placing ?objects ?between ?self ?and ?official
> 
> (My affidavit has explanations of why each one applies to me.)
> 
> So basically, TSA's policy means that ordinary blind people are to be referred to police for behaviors that are perfectly normal symptoms of disability.
> 
> 
> If you total everything I list in that affidavit as normal for me, I have 56 points of "suspiciousness" (vs 6 for police referral) & 24 "signs of deception" (vs 2 for police referral).
> 
> It's completely absurd. One part of my lawsuit seeks to permanently enjoin this program, and make TSA's documents about it public.
> 
> 
> The case is Sai v Pekoske, No. 15-2356 (1st Cir.). Original proceeding under 49 USC 46110, not an appeal.
> 
> I'm IFP and need counsel, so if any of you are interested or know someone who may be, please get in touch.
> 
> Sincerely,
> Sai
> President, Fiat Fiendum, Inc.
> 
> On 11/5/18 01:37, Elizabeth Troutman via BlindLaw wrote:
>> A huge thanks to everyone who responded to my post about investigations. It didn't feel right when I was told that blind people can't conduct investigations well, but it's hard to argue when you're genuinely uninformed. I am now armed with some good information to start addressing the assumptions and getting myself trained up. I feel so fortunate to have this group.
>> Elizabeth
> 
> 
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