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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it exists, is unpublished.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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R. A. Hettinga