Judge dismisses John Gilmore's ID-required lawsuit [priv]

[Declan McCullagh <declan () well com>]

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

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