Some things wrong with the Gilmore decision

Each of these is a point that I think was wrongly decided. Some are
more important than others, some are more appealable than others,
but this is a “brainstorm” list of various issues.

Page Issue

1152 Denied standing on train and bus ID based on “sole allegation”
at Motion to Dismiss stage. (There has never been an opportunity
to introduce facts in to the case.)

1150 Transferred case to 9th circuit without opportunity to amend
or plead.

1150 Defines “interest of justice” as “[plaintiff’s] claims call into
question the propriety of the Government’s airline passenger
identification policy and implicate the rights of millions of
travelers who are affected by the policy. In these unique
circumstances, it is of the utmost importance that we resolve
[plaintiff’s] claims without further delay.” Justice to plaintiff,
and his ability to present a factual record for decision,
is not apparently part of the equation.

1153 Claims a verbal instruction by government agent is as good as a
published law, for vagueness and secret law purposes, even
when various government agents give directly contradictory
statements about the law. And even when government agents are instructed to lie about the law to the public.

1153 Permits non-penal statutes to be secret laws and vague.

1153 Permits non-statutes (e.g. regulations) to be secret laws and vague.

1153-4 Allows unbridled discretion in enforcement of rules, if the
rule articulates “clear standards”, even if the public, the
judges, and the opposing counsel can’t see or evaluate the
standards (or how they are applied). And even if the government
lies to the public about the standards, and even if it
enforces the standards in widely varying ways.

1154 (footnote 11).
Allows the government to exercise prior restraint
on the constitutional right to travel.

1155 Allows arbitrary restraints on single “modes” of travel. Claims
without factual support that Gilmore is free to use a different
mode of travel (e.g. a train).

1155 Ignores the fact of direct denial of travel without offering an
alternative search, though the ruling’s constitutional reasoning
relies on there always being an alternative of physical search.

1154 Const does not guarantee the right to travel by any particular
form of transportation. Contrast to speech, assembly, religion.

1155 Devolves constitutional right to travel to a “reasonableness”
test, undermining existing precedents that require higher
standards.

1156 Misstates facts of Davis case, claiming it included an ID check.

1157 Confuses an ID request by a cop on the street — where the
citizen is free to decline and to leave IN ANY DIRECTION AND
BY ANY MEANS, with an ID demand in an airport, where the
citizen is not free to leave on an airplane. Says there are
no Fourth Amendment implications.

1158 Claimed search of non-ID’s passengers was “reasonable” though
it made no inquiry into the administrative need that justified
it, the level of intrusiveness and extensiveness of the search,
nor whether it was confined in good faith to weapons and
explosives. There are no facts or plaintiff allegations
in evidence about these searches. Yet the court assumed that
all of the above tests were met, validating a policy providing
for warrantless physical search of citizens.

1160 Distinguishes this case from Thomas v. Collins via a label,
rather than by any true distinction.

1148 Claims a secret TSA order is final and enforceable even though
the reviewable administrative record is not reviewable by the
public, the plaintiff, or plaintiff’s counsel.

1149 Claims Ct. of Appeals is the proper place for original review
of constitutional claims against government policies implemented
by secret orders, even if the public is not aware of these
secret orders and sues in the District Court.

One Response to “Some things wrong with the Gilmore decision”

  1. Rochelle Says:

    Does the 4th Amendment prohibit the Government from
    demanding ID in exchange for the right to fly?

    In the 9th Circuit, Gilmore argued that the 4th Amendment prohibits the government from demanding ID in exchange for the right to fly. The 9th Circuit rejected the argument, holding that a request for ID does not implicate the 4th Amendment, citing a Supreme Court case holding that requesting ID alone, without a reasonable fear that the person had been “seized” (i.e., was not free to leave), did not implicate the 4th Amendment. The Court pointed out that Gilmore twice tried to board an airplane and twice was refused, after which he left the airport, without any threat of arrest.

    Gilmore contends that the 9th Circuit ignored the fact that Gilmore was not free to board the airplane after refusing to produce ID, and that this important fact distinguishes this case from other cases where the government found there was no illegal search or seizure. Gilmore was not free to leave in any direction, as in other cases, because he was not free to get on the airplane. That direction was restricted to him. One possible problem with this argument, however, is that once Gilmore was refused the right to board the airplane, he was not subject to government control. He was not then being searched or seized – he simply could not go the direction he wanted to go.

    What do you think? Should Gilmore raise the 4th Amendment argument here in his Petition for Certiorari to the Supreme Court? There are cases that lend support to this argument.

    One line of cases is the “unconstitutional conditions” doctrine. This holds that the government may not condition receipt of a benefit – even one to which the claimant has no constitutional right – on an agreement to forego a constitutional right. The Supreme Court held in Speiser v. Randall, 357 U.S. 513 (1958), that the government may not condition government benefits on an agreement to give up constitutional rights. There, entitlement to veteran’s benefits were conditioned on filing an oath of allegiance. The Court held that “[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” In another case, Frost Trucking Co. v. Railroad Comm’n of California, 271 U.S. 583 (1926), the court held that private carriers cannot be subjected to restrictions imposed on common carriers as a condition for the right to use the road. The Court explained that the state “may not impose conditions which require the relinquishment of constitutional rights.”

    The problem is that these cases all are dependent on the argument that the government deprived Gilmore of his constitutional right to travel – but if Gilmore prevails on that argument, then there is no need to raise the 4th Amendment argument at all. In other words, they beg the question of whether Gilmore has asserted a constitutional right at all, which the government has infringed by demanding that Gilmore produce an ID to travel. Ultimately, they seem to add confusion to the question.

    In INS v. Delgado, 466 U.S. 210 (1984), the Court held that INS agents did not “seize” a workplace when they entered a factory, posted officers at the doors and asked everyone to produce ID. The court reiterated that questioning alone is not a violation of the 4th Amendment. Rather, it requires some reasonable apprehension of detention. The question is whether the Constitution prevents the government from denying passengers the right to travel when they refuse to produce ID.

    There are some very good cases limiting the government’s ability to respond when someone refuses to produce ID. In Brown v. Texas, 443 U.S. 47 (1979), the Court held unconstitutional a statute requiring citizens to produce ID when police demand. One of the Court’s concerns was limiting the unfettered discretion of the officers in the field. In Lawson v. Kolender, 658 F.2d 1362 (9th Cir. 1981), the 9th Circuit held that the government cannot arrest someone just for refusing to produce ID. Among other things, the Court stated that the right to wander is an important personal right, using very helpful language regarding the danger of compelling someone to produce ID to the police, and the possibility of then becoming “part of a large scale data bank.” More recently, the Court rejected a roadblock that was designed to detect drugs. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). The Court held that the reason for the roadblock must be related to the interest in protecting the roads, and a roadblock cannot be designed to detect general crime. [This decision, however, expressly excluded airport searches from its holding because “the need for such measures to ensure public safety can be particularly acute.”]

    One problem, however, is that Brown v. Texas appears to be the height of the Supreme Court’s protection, and the Supreme Court’s more recent cases have not expanded that rule at all (something which we would ask the Court to do if we petitioned for review on this issue). Most recently, in Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), the Court expressly limited its statements in prior decisions that although the government is free to ask someone for their identification, it may not compel the answers. It characterized such statements as not controlling, and held that when a state stops someone in a “Terry Stop” (a police stop based on reasonable suspicion of some wrongdoing), the state may compel that person to disclose his or her name. It then may arrest someone who refuses to identify themselves if the request for identification is reasonably related to the circumstances justifying the stop. [What does that mean? It’s a very vague standard.] One problem with this case is that it dismisses the significance of being required to produce identification, asserting that “[a]nswering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.” In other cases, the Court also has approved of roadblocks or checkpoints so long as they have some relationship to the place of the stop. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (approving highway sobriety checkpoints); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (border patrol permanent checkpoint close to Mexican border).

    Another problems is that while many cases have evaluated airline searches, the more recent cases have rejected attempts to restrict the government’s ability to search passengers boarding aircraft. A number of cases were decided in the early 1970’s, when the government launched its anti-hijacking efforts and magnetometers were introduced as standard in airports. At that time, the courts struggled to balance the 4th Amendment against the newly-recognized threat, and they drew lines that attempted to protect passengers’ privacy. For example, in United States v. Lopez, 328 F. Supp. 1077 (1971), the court upheld the government’s newly-enacted anti-hijacking system at airports, which included use of magnetometers and profiling to identify “selectees” for further scrutiny. The court found that the particular search was unconstitutional, however, because the passenger did not consent. The Court held that the government cannot “condition the exercise of the defendant’s constitutional right to travel on the voluntary relinquishment of his Fourth Amendment rights” and that any implied consent “would be inherently coercive.” Similarly, in United States v. Meulener, 351 F. Supp. 1284 (1972), the court held that the search of someone attempting to board an airplane is unconstitutional if they are not given the option of refusing to be searched and not boarding the airplane. United States v. Albarado, 495 F.2d 799 (2d Cir. 1974), also held that an airport search, revealing counterfeit bills, was unconstitutional because it was too invasive under the circumstances, also using very good language about the practical necessity of flying and the requirement that any search be very limited. And in United States v. Davis, 482 F.2d 893 (9th Cir. 1973), the court held that based on the evidence before the Court, an airline search of a passenger’s briefcase was not reasonable because there was no evidence of consent. As recently as 1989, the Ninth Circuit rejected an airport search that revealed $124,570 in U.S. currency (subject to confiscation) because the airline employee who initially searched the passenger received $250 for giving a tip to the U.S. Customs Services, and then permitted the passenger to fly to his destination, where Customs was waiting for him. United States v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989).

    More recent cases, however, are less deferential to travelers. In Torbet v. United Airlines, Inc., 298 F.3d 1087 (9th Cir. 2002), for example the court held constitutional a random search of an airport bag that had passed through an x-ray scan without incident. The court also affirmed the government’s right to insist that the passenger remain until the search was complete. In Torbet, the search occurred in 1998, although the 9th Circuit decision was not issued until August 2002.

    But these cases are premised on the right to be free from search – physical body searches. The government cannot unreasonably infringe that right, but even then passengers have far more limited rights when they board an airplane and there is no right to fly without being searched. Generally in the Court’s decisions, the right to be free from bodily searches is given more protection than the right to be free from compelled disclosure of identification. Compelled disclosure of identification is problematic only if the result of refusal is an arrest (at which point the right to be free from government seizure is implicated). The Court simply has not expressed a constitutional protection against disclosing identification that is as protective of individual rights as the right to be free of bodily searches. As recently as 2004, in Hiibel, the Court summarily dismissed the argument that being required to disclose ID is significant enough to implicate the 5th Amendment right against self-incrimination. Given this, is there any chance that the Court, if it accepted the case, would extend its prior caselaw and hold that in this situation, the 4th Amendment guarantees citizens a right to refuse to produce identification?

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