United States District Court, N.D. California
March 19, 2004.
JOHN GILMORE, Plaintiff,
JOHN ASHCROFT, et al, Defendants
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
Plaintiff's complaint against federal defendants 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, substituted for Jane F. Garvey under Rule 25(d)(1);
Admiral James M. Loy, in his official capacity as Acting Undersecretary
of Transportation for Security, substituted for John W. Magaw under Rule
25(d)(10; and Tom Ridge, in his official capacity as Chief of the Office
of Homeland Security, and against defendant Southwest Airlines is
dismissed with prejudice, and plaintiff's complaint against defendant UAL
dba United Airlines is dismissed without prejudice. Judgment is entered
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING MOTIONS TO DISMISS AND DENYING
REQUEST FOR JUDICIAL NOTICE
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*fn1
and DENIES plaintiff's request
for judicial notice.
Plaintiff John Gilmore is a California resident who is suing the United
States*fn2 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.*fn3
On July 4, 2002 plaintiff went to the Oakland International Airport and
attempted to fly to the Baltimore Washington International Airport to
"petition the government for redress of grievances and to associate with
others for that purpose." Complaint at 2:2-4. Plaintiff approached the
Southwest ticket counter with a ticket that he had previously purchased
and was asked to provide identification. Complaint at ¶ 25. Plaintiff
refused and inquired whether there was any way for him to board the plane
without showing identification. He was told by the ticket clerk that he
could be screened instead. Id. Plaintiff also asked the clerk if she knew
the origin of this requirement. The clerk expressed uncertainty but
speculated that the Federal Aviation Administration ("FAA") might have
promulgated the identification rule. Id. Plaintiff was told to show
identification again when he went to the gate to board the plane.
Complaint at ¶ 26. He refused and was not allowed to board the plane.
Id. Plaintiff spoke with a supervisor who explained that airline policy
prohibited allowing plaintiff to board. Complaint at ¶ 27.
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
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 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.
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 other claims, but he did allude to the "government's plan to
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, ¶ 8. 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, ¶¶
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.
The only injury alleged by plaintiff was his inability to board a plane
as a result of the identification requirement. Article III requires that
to have standing a plaintiff must show that (1) he was injured (2) that
the injury is directly related to the violation alleged and (3) that the
injury would be redressable if plaintiff prevailed in the lawsuit. Simon
v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976).
Plaintiff objects to defendants' "no fly" list, to other "watchlists"
and to the CAPPS program, but fails to allege that his name was on any of
these lists or that he personally suffered any injury or inconvenience as
a result. The federal defendants are correct that plaintiff has not pled
injury sufficient to establish Article III standing concerning these
other lists and activities.
In the course of his complaint, plaintiff describes certain orders and
directives issued by the FAA and the Transportation Security
Administration ("TSA"). The Courts of Appeals have exclusive jurisdiction
to review orders issued by the FAA and the TSA. Under 49 U.S.C. § 46110(a):
[A] person disclosing a substantial interest in an
order issued by the Secretary of Transportation . . .
under this part may apply for review of the order by
filing a petition for review in the United States
Courts of Appeals for the District of Columbia Circuit
or in the court of appeals of the United States for
the circuit in which the person resides or has its
principal place of business.
Jurisdiction to review such orders is vested in the Courts of Appeals,
not the district courts.
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. Plaintiffs First Cause of Action: violation of the Due Process
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, ¶ 52. This claim directly attacks the
policy, regulation, order or directive requiring production of
identification at airports.
In this case, the federal defendants refuse to 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.
The federal defendants also argue that there is no requirement that
they issue orders, regulations or policy directives explaining all
aspects of the airport security screening process, so that their failure
to do so should not result in a finding that policies and procedures are
"void for vagueness." Under 49 U.S.C. § 44901(a), the Under Secretary of
Transportation for Security is required to "provide for the screening of
all passengers and property . . . that will be carried aboard a passenger
aircraft," and under 49 U.S.C. § 44902(a), the Under Secretary must
prescribe regulations requiring an air carrier to "refuse to transport
 a passenger who does not consent to a search . . . establishing
whether the passenger is carrying unlawfully a dangerous weapon,
explosive or other destructive substance." Defendants argue that the
government's interest in ensuring the effectiveness of the screening
process is a sufficient justification for its failure to provide these
regulations to the public.
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. Plaintiffs Second Cause of Action: violation of the Fourth Amendment
right to be free from unreasonable searches and seizures
A. Request for Identification
Plaintiff alleges that any requirement that he either display
government-issued identification or submit to search prior to boarding a
plane violates the Fourth Amendment. Complaint at ¶¶ 56-59.
The request for identification, where plaintiff is free to refuse, is
not a search and so does not implicate the Fourth Amendment. See
U.S. v. Cirimele, 845 F.2d 857, 860 (9th Cir. 1988) (D.E.A. agent's
request for identification from person in airport was not a seizure
within the meaning of the Fourth Amendment). In another context the
Supreme Court has held that "[A] request for identification by the police
does not, by itself, constitute a Fourth Amendment seizure," explaining:
Unless the circumstances of the encounter are so
intimidating as to demonstrate that a reasonable
person would have believed he was not free to leave if
he had not responded, one cannot say that the
questioning resulted in a detention under the Fourth
Amendment. But if the person refuses to answer and the
police take additional steps . . . to obtain an
answer, then the Fourth Amendment imposes some minimal
level of objective justification to validate the
detention or seizure.
Immigration and Naturalization Service v. Delgado, 466 U.S. 210
(1984). Similarly, in U.S. v. Black, 675 F.2d 129
, 136 (7th Cir. 1982),
the court held that the request that a person in an airport produce his
driver's license and airline ticket was not a seizure, and that a seizure
occurred only after the officers took and kept the airline ticket and
driver's license. The court stated, "Under our reasoning it is clear that
the mere request for and voluntary production of such documents does not
constitute a seizure, but rather falls into the category of a
non-coercive police-citizen encounter." Id.
Plaintiff has cited several cases supporting the proposition that
requiring identification, under threat of arrest or some other
significant penalty for failure to produce identification, may violate
the Fourth Amendment. Those cases do not suggest that what happened to
Mr. Gilmore, the request that he provide identification alone, violates
the Fourth Amendment. For example, in Lawson v. Kolender, 658 F.2d 1362,
1367-68 (9th Cir. 1981) (aff'd on other grounds, 461 U.S. 352(1983)), the
court stated that a statute criminalizing the refusal to provide
identification violated the Fourth Amendment.
Notably, the Court based its decision in part on the fact that
criminalizing the refusal to provide identification provides a basis for
arrest. Id. at 1367. Where individuals are or can be arrested for failing
to identify themselves, seizure, and hence the Fourth Amendment, are
clearly implicated. Thus, in Martinelli v. Beaumont, 820 F.2d 1491 (9th
Cir. 1987), the plaintiff was arrested for failure to identify herself,
and the court held that arresting a person for failure to identify
herself violated the Fourth Amendment. Similarly in Carey v. Nevada
Gaming Board, 279 F.3d 873, 880 (9th Cir. 2000), the Court found a Fourth
Amendment violation in a statute which made it a misdemeanor for
individuals detained on reasonable suspicion of having committed a crime
to refuse to identify themselves.
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 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.
Defendants, while contending that the request for identification was
neither a search nor a seizure, did nevertheless argue at some length
that the request for identification is a reasonable means of effectuating
the purpose of airline safety and meeting the requirements of
49 U.S.C. § 114(h)(2)-(3). That statute requires the TSA to establish
procedures for informing airlines of the identity of "individuals known to
pose, or suspected of posing, a risk of air piracy or terrorism or a
threat to airline of passenger safety" (49 U.S.C. § 114(h)(2)), and to
establish policies that enable air carriers to identify people "on
passenger lists who may be a threat" (49 U.S.C. § 114(h)(3)(A)) and
prevent them from boarding an aircraft (49 U.S.C. § 114(h)(3)(B)).
Defendants argue that verifying passengers' identity is a reasonable
means of effectuating the purpose of the statute.
It appears to this Court that the requirement that identification be
provided before boarding an airplane is a minimal intrusion on personal
privacy and is a reasonable, if modest, step toward ensuring airline
safety. It may be, as plaintiff argues, that easy access to false
identification documents will
reduce the effectiveness of the effort, but the effort itself seems
a reasonable one. However, iff light of this Court's finding that no
search or seizure occurred, no finding concerning the reasonableness of
the identification requirement is required.
B. Request to consent to search
Under this circuit's jurisprudence, Southwest's request that the
plaintiff submit to search may have constituted a seizure subject to
Fourth Amendment scrutiny. When the government is significantly involved
in a plan to search, state action, and thus the Fourth Amendment, may be
implicated. The Ninth Circuit has held that an airport search is a
"functional, not merely a physical process . . . [that] begins with the
planning of the invasion and continues until effective appropriation of
the fruits of the search for subsequent proof of an offense." U.S.
v. Davis, 482 F.2d 893, 896 (9th Cir. 1973). Under these stringent
guidelines, the request that plaintiff consent to search may have been
tantamount to a search for purposes of Fourth Amendment analysis, even
though the only part of the search that occurred was the planning.
However, if a search did occur, the search was reasonable. An airport
screening search is reasonable if: "(1) it is not more extensive or
intensive than necessary . . .; (2) it is confined in good faith to
[looking for weapons and explosives]; and (3) passengers my avoid the
search by electing not to fly." Torbet v. United Airlines, 298 F.3d 1087,
1089 (9th Cir. 2002): see United States v. Davis, 482 F.2d at 895 (9th
Cir. 1973) ("We hold further that while `airport screening searches' per
se do not violate a traveler's rights under the Fourth Amendment, or
under his constitutionally protected right to travel, such searches must
satisfy certain conditions, among which is the necessity of first
obtaining the `consent' of the person to be searched."). In Torbet the
Court held that the placement of luggage on an x-ray conveyor belt was an
implied consent to a luggage search. 298 F.3d at 1089. At all times
plaintiff was free to leave the airport rather than submit to search.
Further, searches of prospective passengers are reasonable and a
necessary as a means for detecting weapons and explosives. Torbet v.
United Airlines. Inc., 298 F.3d at 1089-90. Accordingly, the request that
plaintiff consent to search was reasonable and not in violation of the
3. Plaintiff's Third and Fourth Causes of Action: violation of the right
to travel protected by the Due Process Clause
Plaintiff alleges that the right to "travel at home without
unreasonable government restriction is a fundamental constitutional right
of every American citizen and is subject to strict scrutiny." ¶ 61.
Defendant Southwest Airlines notes that the right to travel has not been
found by the courts to be contained within the constitutional amendments
cited by plaintiff. Southwest advocates dismissal on these grounds. Defs'
Motion to Dismiss at 2, n.1. The Court declines to dismiss on these
grounds as the notice pleading standard requires this Court to liberally
construe plaintiff's complaint. The right to travel, while sometimes
elusive, is clearly grounded in the Constitution. The Supreme Court has
located it at times in the Privileges and Immunities Clause of Article
IV, the Commerce Clause, the Privileges and Immunities Clause of the
Fourteenth Amendment and the "federal structure of government adopted by
our Constitution." Att'y Gen, of New York v. Soto-Lopez, 476 U.S. 898
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)
("[B]urdens on a single mode of transportation do not implicate the right
to interstate travel."); Monarch Travel Serv. Assoc. Cultural Clubs.
Inc., 466 F.2d 552 (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 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.
5. Plaintiffs Fifth Cause of Action: violation of the right to petition
the government for redress of grievances protected by the First
Plaintiff alleges that "[t]he right to petition the government for
redress of grievances is a fundamental Constitutional right, subject to
strict scrutiny" and that this right is "burdened by requiring
Petitioners to identify themselves, and by preventing Petitioners from
traveling to where the seat of government is located." Complaint at ¶
69. The right to petition the government for redress of grievances has
been "held to be enforceable against the states by virtue of the
Fourteenth Amendment." See Hilton v. City of Wheeling, 209 F.3d 1005
1006-07 (7th Cir. 2000). But the right to petition the government for
redress of grievances is only implicated by governmental action that
prevents the exercise of such a right. Id. Although the government's
refusal to let Mr. Gilmore board an airplane on Mr. Gilmore's terms may
have made it more difficult for him to petition the government for
redress, he certainly was not altogether prevented from doing so.
Therefore, Mr. Gilmore's argument that his constitutional right to
petition the government for redress was violated is rejected.
6. Plaintiff's request for judicial notice
Plaintiff filed a request for judicial notice of The Privacy
Commissioner of Canada's "Annual Report to Parliament." The Court may
take judicial notice of adjudicative facts (Fed.R.Evid.201(a) and (b)),
and under certain circumstances must take judicial notice of those
adjudicative facts which are reasonably beyond dispute (Fed.R.Evid.
201(d)). "Adjudicative facts" are "the facts of the particular case." The
opinions of the Canadian government regarding privacy issues are not
relevant to the adjudication of this dispute. Therefore, the report is
not an adjudicative fact, as it is beyond the scope of this case.
Further, the Court did not rely on this report in evaluating defendants'
motions to dismiss. For the foregoing reasons, the Court declines to take
judicial notice of this report.
For the foregoing reasons, plaintiffs complaint is dismissed.
Plaintiffs 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.