[IP] Judge dismisses John Gilmore's ID-required lawsuit -- full form
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Mon, 29 Mar 2004 13:25:29 -0500
From: Declan McCullagh <declan@xxxxxxxx>
GILMORE v. ASHCROFT
JOHN GILMORE, Plaintiff, v. JOHN ASHCROFT, in his official capacity as
Attorney General of the United States; ROBERT MUELLER, in his official
capacity as Director of the Federal Bureau of Investigation; NORMAN MINETA,
in his official capacity as Secretary of Transportation; MARION C. BLAKEY,
as Administrator of the Federal Aviation Administration; Admiral JAMES M.
LOY, in his official capacity as Acting Undersecretary of Transportation
for Security; TOM RIDGE, in his official capacity as Chief of the Office of
Homeland Security; UAL CORPORATION, aka UNITED AIRLINES; and DOES I-XXX,
Defendants.
No. C 02-3444 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
March 19, 2004, Decided
March 23, 2004, Filed
...
Defendants have moved to dismiss plaintiff's complaint for failure to state
a claim upon which relief can be granted. Having carefully considered the
arguments of the parties and the papers submitted, the Court GRANTS the
motions to dismiss n1 and DENIES plaintiff's request for judicial notice.
...
BACKGROUND
Plaintiff John Gilmore is a California resident who is suing the United
States n2 and Southwest Airlines for refusing to allow him to board an
airplane on July 4, 2002 without either displaying a government-issued
identification consenting to a search. Plaintiff alleges that these
security requirements imposed by the United States government and effected
by the airline companies violate several of his constitutional rights,
including his rights under the First and Fourth Amendments. n3
...
LEGAL STANDARD
The Court may dismiss a complaint when it is not based on a cognizable
legal theory or pleads insufficient facts to support a cognizable legal
claim. Smilecare Dental Group v. Delta Dental Plan, 88 F.3d 780, 783 (9th
Cir. 1996).
DISCUSSION
Plaintiff's complaint alleges that as a result of the requirement that
passengers traveling on planes show identification and his unwillingness to
comply with this requirement, he has been unable to travel by air since
September 11, 2001. Plaintiff's complaint asserts causes of action
challenging the apparent government policy that requires travelers either
to show identification or to consent to a search which involves wanding,
walking through a magnetometer or a light pat-down. Whether this is
actually the government's policy is unclear, as the policy, if it exists,
is unpublished. However, this Court for the purpose [*6] of evaluating
plaintiff's complaint, assumes such a policy does exist, and reviews
plaintiff's complaint accordingly.
Plaintiff asserts the unconstitutionality of this policy on the following
grounds: vagueness in violation of the Due Process Clause; violation of the
right to be free from unreasonable searches and seizures; violation of the
right to freedom of association; and violation of the right to petition the
government for redress of grievances.
The federal defendants and airline defendant both brought motions to
dismiss. As plaintiffs' claims are common to both sets of defendants, this
Court treats them collectively. While there are questions about the private
defendant's liability as a state actor and about the federal defendants'
liability for the private defendant's actions, as this Court has not found
plaintiff's complaint to have alleged a constitutional violation, those
issues need not be addressed at this time.
...
1. Standing
As a preliminary matter, the federal defendants have objected to all of
plaintiff's claims other than plaintiff's challenges to the identification
requirement. It is unclear from plaintiff's complaint whether he intended
to plead any [*7] other claims, but he did allude to the "government's
plan to create huge, integrated databases by mingling criminal histories
with credit records, previous travel history and much more, in order to
create dossiers on every traveling citizen," including creation of "no fly"
watchlists. Complaint, P8. He pointed to newspaper and magazine articles
and internet websites describing various activities and directives issued
by various federal agencies, including the increased use of the Consumer
Assisted Passenger Prescreening System ("CAPPS") in the wake of the
terrorist attacks on September 11, 2001. Complaint, PP35-50.
The federal defendants argue that "as a threshold matter, plaintiff has
standing in this action solely insofar as he challenges an alleged
federally-imposed requirement that airlines request identification as part
of the screening process at airports. The complaint is devoid of any
allegation that plaintiff personally has suffered any injury that is fairly
traceable to any other practice, procedure, or criterion that may be used
by any defendant in screening airline passengers for weapons and
explosives." Motion to Dismiss at 2:21-25.
...
Accordingly, to the extent that plaintiff pleads causes of action beyond
those stemming from the identification requirement, those causes of action
are DISMISSED for lack of standing or jurisdiction.
2. Plaintiff's First Cause of Action: violation of the Due Process Clause
Plaintiff alleges that the identification requirement is
"unconstitutionally vague in violation of the Due Process Clause of the
Fifth Amendment because it is vague, being unpublished, and thus provides
no way for ordinary people or reviewing courts to conclusively determine
what is legal." Complaint, P52. This claim directly attacks the policy,
regulation, order or directive requiring production of identification at
airports.
In this case, the federal defendants refuse to [*10] concede whether a
written order or directive requiring identification exists, or if it does,
who issued it or what it says. They contend, however, that to the extent
this action challenges an order issued by the TSA or the FAA, 49 U.S.C. §
46110(a) vests exclusive jurisdiction in the Courts of Appeals to decide
the challenge.
...
Because this claim squarely attacks the orders or regulations issued by the
TSA and/or the FAA with respect to airport security, this Court does not
have jurisdiction to hear the challenge. As a corollary, without having
been provided a copy of this unpublished statute or regulation, if it
exists, the Court is unable to conduct any meaningful inquiry as to the
merits of plaintiff's vagueness argument. This argument would better be
addressed to the Ninth Circuit Court of Appeals or to the Court of Appeals
for the District of Columbia Circuit, both of which have jurisdiction to
review these matters.
3. Plaintiff's Second Cause of Action: violation of the Fourth Amendment
right to be free from unreasonable searches and seizures
...
In plaintiffs' case, he was not required to provide identification on pain
of criminal or other governmental sanction. Identification requests
unaccompanied by detention, arrest, or any other penalty, other than the
significant inconvenience of being unable to fly, do not amount to a
seizure within the meaning of the Fourth Amendment. Plaintiff has not
suggested that he felt that he was not free to leave when he was asked to
produce [*15] identification. None of the facts submitted by plaintiff
suggests that the request for identification implicated plaintiff's Fourth
Amendment rights. Therefore, plaintiff's claim that the identification
requirement is unreasonable does not raise a legal dispute that this Court
must decide.
...
3. Plaintiff's Third and Fourth Causes of Action: violation of the right to
travel protected by the Due Process Clause
...
However, plaintiff's allegation that his right to travel has been violated
is insufficient as a matter of law because the Constitution does not
guarantee the right to travel by any particular form of transportation.
Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999) ("Burdens on a single
mode of transportation do not implicate the right to interstate travel.");
Monarch Travel Serv. Assoc. Cultural Clubs, Inc., 466 F.2d 55 2(9th Cir.
1972). The right to travel throughout the United States confers a right to
be "uninhibited by statutes, rules and regulations which unreasonably
burden or restrict this movement." Saenz v. Roe, 526 U.S. 486, 499 (9th
Cir. 1973). This Court rejects plaintiff's argument that the request
[*20] that plaintiff either submit to search, present identification, or
presumably use another mode of transport, is a violation of plaintiff's
constitutional right to travel.
...
4. Plaintiff's Fourth Cause of Action: violation of the right to freedom of
association protected by the First and Fifth Amendments
Plaintiff's allegation that his right to associate freely was violated
fails because the only actions which violate this right are those which are
"direct and substantial or significant." Storm v. Town of Woodstock, 944 F.
Supp. 139, 144 (N.D. N.Y. 1996). Government action which only indirectly
affects associational rights is not sufficient to state a claim for
violation of the freedom to associate. To the extent that plaintiff alleged
plans to exercise his associational rights in Washington, D.C., the Court
finds that plaintiff's rights were not violated as plaintiff had numerous
other methods of reaching Washington.
...
For the foregoing reasons, plaintiff's complaint is dismissed. Plaintiff's
claims against the federal defendants and Southwest Airlines are dismissed
with prejudice; plaintiff's claims against United Airlines are dismissed
without prejudice. Plaintiff's request for judicial notice is denied.
[Docket ## 6, 8, 10, 22, 28].
IT IS SO ORDERED.
Dated: March 19, 2004
SUSAN ILLSTON
United States District Judge
_______________________________________________
Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/