Gilmore v. Ashcroft -- Hearing Transcript 17 January 2003

15 February 2003. Thanks to JG.

See related case documents: http://cryptome.org/freetotravel.htm

Attorneys for John Gilmore:

William M. Simpich
1736 Franklin Street, 10th Floor
Oakland, CA 94612
(510) 444-0226
James Harrison - Co-Counsel
980 9th St., 16th Floor
Sacramento, CA 95814
(916) 452-4905

I fixed most of the typos. Places I have questions about are marked
with [sp?] -- search for them. Some case names in particular. -- JG

united states district court
northern district of california
san francisco division

john gilmore, ) no. c 02-3444 si
)
plaintiff, )
) pages 1 - 40
vs. )
)
john ashcroft, et al. )
)
defendant. )
__________________________________)

san francisco, california
friday, january 17, 2003

transcript of proceedings
before the honorable susan illston
united states district judge

appearances:

for plaintiff: william m. simpich, esq.
1736 franklin street, tenth floor
oakland, california 94612

james p. harrison, esq.
980-9th street, 16th floor
sacramento, california 95814

for defendant: kevin v. ryan
united states attorney
u.s. department of justice
civil division
20 massachusetts avenue n.w., room 7300
washington, dc 20530

by: joseph w. lobue, esq.
assistant u.s. attorney
(appearances continued on next page)
reported by: james yeomans, csr, rpr
official reporter, usdc

computerized transcription by eclipse

Page 2

appearances (continued):

for defendant piper rudnick llp
southwest airlines: 1999 avenue of the stars
fourth floor
los angeles, california 90067

by: jane h. barrett, esq.

for defendant coddington, hicks & danforth
united airlines: 555 twin dolphin drive, suite 300
redwood city, california 94065

by: kathryn m. carroll, esq.

Page 3

1 friday, january 17, 2003 9:00 a.m.
2 (proceedings held in open court:)
3 the clerk: civil 02-3444, john gilmore versus
4 ashcroft.
5 mr. simpich: good morning, your honor.
6 william simpich and james harrison appearing for the
7 plaintiff.
8 the court: good morning.
9 mr. lobue: joseph w. lobue, department of justice,
10 for the federal government.
11 ms. barrett: good morning, your honor.
12 jane barrett for southwest airlines.
13 ms. carroll: good morning, your honor.
14 kathryn carroll for united airlines.
15 the court: good morning.

16 first, with respect to united airlines, do the
17 remaining parties agree that united can be severed from this
18 litigation?
19 mr. simpich: due to the bankruptcy status, i
20 assume?
21 the court: yeah.
22 mr. simpich: if it hasn't changed, i agree, your
23 honor, yes.
24 mr. lobue: government has no objection.
25 ms. barrett: southwest has no objection.

Page 4

1 the court: well, then, united is severed. thank
2 you for coming. and the case against united is stayed and the
3 case against everybody else is not.
4 this is defendant's motion to -- these are
5 defendant's motions to dismiss. i've read the papers, i'll
6 tell you -- what, mr. simpich, what is it exactly that mr.
7 gilmore is complaining about?
8 mr. simpich: your honor, what he's challenging is
9 the identification requirement.
10 the court: the id requirement?
11 mr. simpich: as it stands.
12 the court: so, then to the extent that it's argued
13 you don't have standing to challenge anything but the id
14 requirement, you're content with that, that's all you're
15 challenging?
16 mr. simpich: that's the focus.
17 the court: i want to know what you're challenging.
18 mr. simpich: that's what i'm trying to address.
19 the other side agrees in their papers that the security
20 directive 96-05 and the other security programs related to [the?]
21 identification requirement itself are within the purview of our
22 claim.
23 where the quarrel is, whether the no fly list, the
24 watch list, or the capps prescreening system fall within the
25 challenge of the identification requirement, that's kind of the

Page 5

1 terrain we're on here.
2 and it's our contention that in the issue of the
3 identification requirement the -- all three lists are
4 implicated. there's real no way to get around it.
5 as a logical matter, if the identification
6 requirement is spelled out as optional, which we believe it
7 should be, these three programs are going to be affected.
8 there's just no getting around that. so that's the heart of
9 the issue as we see it.
10 the court: i don't understand what you just said.
11 are you challenging the no fly list?
12 mr. simpich: we're challenging the no fly list,
13 watch list and the prescreening list, in that we believe that
14 the reason these -- the identification requirement exists is
15 because these programs are being brought on line in the last
16 few years.
17 and because these programs need to know the true
18 identity, not a phoney identity or second name, that's why
19 96-05 was issued in 1996 after the twa disaster, in that time
20 frame.
21 the court: okay. and the gist of your argument is
22 what?
23 mr. simpich: well, your honor, the gist of our
24 argument is that because of --
25 the court: the gist of your argument, let's start

Page 6

1 off with the standing.
2 mr. simpich: thank you. on that threshold issue
3 i'd like mr. harrison to address this directly.
4 mr. harrison: good morning, your honor. my name is
5 jim harrison.
6 mr. simpich and i have somewhat bifurcated the
7 issues. i'm here to talk about standing and jurisdiction, he's
8 to talk about the specific injuries that plaintiff suffered as
9 a result of the identification requirement.
10 so the issue, as i understand, you want to address,
11 is the injury -- is the standing issue?
12 the court: yes.
13 mr. harrison: with regards to the standing, no fly
14 and watch list?
15 the court: right.
16 mr. harrison: our central issue here, as
17 mr. simpich said, is the id requirement. if you take the id
18 requirement and find that it is unconstitutional for any of
19 the, you know, claims that we bring, and say that it cannot be
20 used, then the actual functionality of the watch list, or the
21 no fly list, or the capps program crumbles.
22 they themselves in their, in the federal reply, on
23 page eight say that the no fly list would be unfunctional
24 without the id requirement.
25 so we're not necessarily suing the -- we're not

Page 7

1 actually bringing the claim against the no fly and capps
2 program, we're bringing a claim that the id requirement within
3 all these programs has injured our client in the ways that we
4 have listed.
5 the court: the id requirement you say has injured
6 your client?
7 mr. harrison: yes.
8 the court: not the id requirement within the no fly
9 list, that didn't affect him at all, but the id requirement
10 itself is what affected him that day when he tried to fly?
11 mr. harrison: the id requirement we contend was
12 because of the no fly list. the id requirement that was the
13 client was asked for id because of the no fly list, he was
14 asked for id because of the watch list and he was asked for id
15 because of the capps 2 program. it's not severable in our eyes,
16 at least.
17 i mean, you might be able to say in the end
18 plaintiff wasn't -- his injury didn't result from him not being
19 able to get on the airplane because of the no fly list, but the
20 id requirement as is part of the no fly program or the
21 functionality of the no fly list is what injured him.
22 the court: right. it seems to me that if you're
23 challenging the id requirement that's one thing, if you're
24 challenging the no fly list there's probably ways you can
25 challenge it separate from the id requirement. you're not

Page 8

1 doing that?
2 mr. harrison: no, i don't think plaintiff would
3 have standing to do that.
4 the court: right, that's my point. so, i think,
5 all you have standing to talk about is the id issue, and then
6 the chips ultimately fall wherever they fall. but they only
7 fall in the case brought by somebody who has standing to talk
8 about them.

9 mr. harrison: well, correct. but what's going to
10 happen and what has already happened, was that if we go down
11 the road and we do get standing to bring a claim on the id
12 requirement, and we get to you, your honor gets to a state of
13 doing some sort of balancing test over governmental interests
14 versus the constitutional injury to client, defendants are
15 going to have to bring up the overriding governmental interest
16 of security. and we're going to say how it is necessarily
17 effectuated and we'll go through the rigamarole of scrutiny.
18 and they're going to say it's the no fly list, is how it's
19 implemented or it's the capps program and eventually we're going
20 to get there.
21 and it's my understanding it's unavoidable. they
22 even bring it up, as i said, in their briefs, both their
23 opposition and the reply brief.
24 so it's not that we want to say, hey, you can't, the
25 no fly list prevented me from getting on the airplane because

Page 9

1 ike was on the list and, therefore, you know ike has standing
2 to sue. that's not what's going on here. it's the id
3 requirement that's inseparable from the -- these three
4 programs.
5 the court: because you think they'll bring that up
6 by way of justification?
7 mr. harrison: i'm certain they must. in fact, they
8 already have. if you take a look at their pleadings they start
9 with the justification for these violations of my client's
10 constitutional rights.
11 the court: i understand your position. thank you.
12 mr. harrison: i'm willing to talk about
13 jurisdiction as well, should you have a question.
14 the court: the district court versus the court of
15 appeals.
16 mr. harrison: yes.
17 the court: why don't you talk about that.
18 mr. harrison: sure. at first was a battle back and
19 forth over whether or not this is an order for the purposes of
20 statutory review by the appellate courts under section 46110
21 title 49.
22 they do have statutory power to review orders,
23 however, in our situation this involves a constitutional
24 challenge, and it's -- that is the point that we center on.
25 the appellate courts -- i'm sorry, the

Page 10

1 administrative courts within the faa, all the cases that
2 involve review of orders have involved either challenges to
3 certificate actions, someone's mechanics license, or pilot's
4 license, or operating license suspended or revoked, or it
5 involves air space.
6 the air space contentions have all been deemed rules
7 and all been contested on apa standards for notice and comment
8 making sure they comply with those.
9 here we have a situation where we've got rule,
10 admittedly at first we were trying to find a way around it
11 being a rule because of its safety standard, but we concede
12 it's a rule.
13 but what's not at issue here are the merits of
14 plaintiff's case. we're not talking about why he got his

15 license suspended, we're not talking about facts involving
16 airline operations. we're talking about constitutional
17 challenges to practices and policies of the federal government
18 and the airlines.
19 so for that reason it's clearly a constitutional
20 challenge, it's not -- there's no administrative record for the
21 appellate court to review. and i've cited cases.
22 there's an excellent case in the ninth circuit
23 called mace v. skinner. that's kind of a one stop shop for all
24 these issues. you can -- and it says that because the claim
25 was not based on the merits of plaintiff's individual

Page 11

1 situation, but rather based on a challenge to the allegedly
2 unconstitutional practices of the faa, it was a case that the
3 district court had jurisdiction to hear.
4 and they cite the supreme court case mc nary versus
5 haitian refugees which, again, was a situation involving
6 statutory review by the appellate court.
7 however, they found that it did not preclude
8 district courts' jurisdiction over collateral, general
9 collateral challenges to unconstitutional practices and
10 policies. that's the nutshell of my jurisdiction argument.
11 the court: tell me the name of that last case
12 again?
13 mr. harrison: sure. the case that was cited by
14 both plaintiffs and defendants is mace versus skinner 34 f 3d
15 854, ninth circuit decision 1994. and what they're citing is
16 mc nary versus haitian refugee center, supreme court case 498
17 u.s. 479, it's 1991.
18 the court: thank you.
19 mr. harrison: thank you.
20 the court: why don't we hear about those questions
21 first.
22 mr. lobue: jeff lobue from the justice department.
23 first, with respect to the standing issue, we would
24 agree with plaintiffs, that part of the reason identification
25 card is requested is to insure that the individual is not a

Page 12

1 person who is known to pose a risk to aviation safety.
2 that's all in the statute. it's in 114 of title 49,
3 that the government is suppose to come up with procedures to
4 provide airlines with that type of information, and the only
5 way they can compare their passengers list with that particular
6 group of people is to find out their identity.
7 that does not mean, however, that plaintiffs can
8 challenge how that list is put together. whether one person on
9 it that shouldn't be on it, whether, you know, the government
10 has made mistakes, or in milwaukee put the wrong person on, all
11 that stuff is in the complaint. none of that is relevant to a
12 claim challenging an identification requirement.
13 and what we're saying is they can't challenge the
14 list separate and apart from this identification requirement.
15 sure, we can argue about one of the purposes for requesting
16 identification is to do what the statute says, but that's not a
17 challenge to how the list is compiled.
18 nor is it appropriate for plaintiffs to get into

19 other aspects of the so-called passenger prescreening system,
20 such as whether somebody pays for a ticket in cash or, i think,
21 there's three or four things they argue about.
22 plaintiff wasn't injured by any of this stuff,
23 plaintiff was injured, if he was injured at all, by the request
24 for identification, which in turn he refused to provide and
25 then didn't fly. that's his claimed injury.

Page 13

1 he wasn't injured because he purchased a ticket in
2 cash, he wasn't injured because the name john gilmore appears
3 on some list somewhere, whether it's a no fly list or a watch
4 list, he doesn't claim he was.
5 the question of jurisdiction it seems to me follows
6 really from the standing issue, because if plaintiff can
7 challenge all these broad array of different practices of the
8 agency, which really go beyond an order, if they can challenge
9 how a no fly list was conducted, that's the type of broad
10 constitutional challenge which might go beyond a particular
11 order.
12 but in this case all they can really challenge is a
13 particular order, a particular security directive, it's not a
14 broad constitutional challenge. there maybe half a dozen
15 different constitutional claims, but they're all focused on the
16 validity of a particular security directive or a particular
17 order.
18 and it's that type of claim which falls directly
19 within 46110, and 46110(c) says the court of appeals has
20 exclusive jurisdiction to affirm, modify or enjoin that type of
21 order.
22 and what the court of appeals ruled in clark versus
23 busey is where an order falls within the scope of that statute,
24 the district court's federal jurisdiction is preempted.
25 so it's a very different case from mace where you're

Page 14

1 challenging the broad group of practices, the challenge is
2 focused on an order, so we believe the ninth circuit has
3 jurisdiction.
4 the court: thank you.
5 mr. harrison: may i have --
6 the court: you can have a brief response. then i'd
7 also like to hear from whoever is going to talk about it, why
8 you think the id requirement is not okay.
9 mr. simpich: i'll be addressing that.
10 mr. harrison: certainly. the federal defendant is
11 correct, it is their job to defend against known risks. in the
12 known risk under u.s. versus davis is weapons and explosives on
13 airplanes.
14 as you have read in our brief we center a lot on
15 that. it's the violation of the fourth amendment is limited to
16 the search of weapons and explosives and not identification.
17 i want to address the broad constitutional challenge
18 argument that defendant just brought up. he's trying to pull
19 the court's attention off what the issue is.
20 the issue is not whether or not the particular
21 issue, the id requirement, is a broad or narrow thing, whether
22 the challenge to that issue is a broad constitutional
23 challenge.

24 plaintiff has brought seven or six constitutional
25 challenges and a foia request and/or complaint that's obviously

Page 15

1 broad. the cases that have found constitutional challenges to
2 be heard by the district courts have involved one single
3 constitutional issue. i call your attention also to mace which
4 addresses that as well.
5 the court: all right. thank you.
6 mr. simpich: thank you, your honor.
7 these broad constitutional challenges to tick them
8 off are, first, the due process issue, best embodies the secret
9 laws, the fourth amendment issue, the right to travel issue and
10 the first amendment issue.
11 starting with the secret law issue, the due process
12 requirement. it's our contention here that not only do we not
13 know what the law is, but it appears they have not told the
14 public, both the federal government and the airlines the actual
15 facts about what the law is.
16 and we say that because their web sites, on the one
17 hand, of the faa and tsa, state that you must provide
18 identification at the airport when, in fact, the practice is
19 quite different. it's not mandatory, it's optional, and this
20 is a central point.
21 the court: it's optional, the alternative to being
22 searched, is that what you mean?
23 mr. simpich: some airlines that is the case. at
24 united, for example, they proffer that option. in this case at
25 this time southwest did not proffer this option. we have

Page 16

1 evidence we can show that other airlines go through these
2 options and we believe it will show southwest exercises this
3 option as well.
4 a lot is driven by what the passenger says. in this
5 case mr. gilmore said that i have id, but i don't want to show
6 it. and the colloquy continued between him and the security
7 agent from southwest. he said it would be a different
8 situation if he didn't actually have his id in his possession,
9 they wouldn't spell out what that situation was. they would
10 neither confirm or deny.
11 but it's this kind of engagement both fast and loose
12 with whatever these secret regulations are that we think is
13 improper. we think this is a void for vagueness type
14 situation, one that lends itself to arbitrary and
15 discriminatory enforcement.
16 in short, there's been a statement by tsa saying we
17 mandate the airlines to ask for identification. but we don't
18 demand that they prevent people from boarding if they don't
19 have identification. that's the latest statement from tsa
20 which we include in our addendum of facts.
21 so this is the first point of inquiry because we
22 have to determine what the law is. i don't think it
23 necessarily means having to unveil the law for all to see at
24 this point, i think it might be able to be done through request
25 for admission or some tool of that type, but this is the first

Page 17

1 inquiry.
2 the second point of inquiry, your honor, is kind of
3 different from the first, which is, once the identification

4 requirement is determined, is that identification requirement
5 constitutional, and this takes us into the fourth amendment
6 right to travel and the first amendment analysis.
7 the court: so when you talk about the right to
8 travel on the fourth amendment, what are you assuming the rule
9 to be, that you're complaining about?
10 mr. simpich: well, we are assuming that the rule is
11 that either you must show an id or you must submit to a more
12 intrusive search.
13 and it's our contention that this alternative is not
14 reasonable. we focus this on the davis case. the davis case
15 focuses on the search for weapons and explosives and this is,
16 we suggest, one center of the inquiry.
17 because they will, of course, will return and say
18 the id requirement is an essential aspect for locating weapons
19 and explosives, and it's our contention in return that that's
20 not accurate. that, in fact, this type of requirement does not
21 take you where you want to go.
22 in fact, it can lead to a sense of false security.
23 one example that we set forth in our brief is a pattern that
24 mit students studied and has been published, where there was
25 several dry runs by these individuals, terrorists, carry no

Page 18

1 weapons and simply gaming the system, if you will, your honor,
2 going on several flights seeing who triggered a search of some
3 kind.
4 after several dry runs of this type where there's
5 been some individuals whose not triggered any search. then on
6 a subsequent flight that person is basically free to attempt to
7 smuggle their items on board because they know that they're not
8 going to be conducted with a search. so for example --
9 the court: what do you take from that?
10 mr. simpich: well --
11 the court: as applies to your argument here.
12 mr. simpich: what we're saying, your honor, is that
13 even if you had this very tough system that was based on
14 scoring, which is what the capps system basically is that the
15 government wants to implement, which we contend is driving this
16 identification requirement.
17 the cap system would take the passengers name, put a
18 thousand different items from data bases into it and then come
19 up with a score, and that score would be the determination as
20 to whether or not this person was forced to endure a more
21 intrusive search.
22 and this is the kind of situation that was addressed
23 in the case called holmes, where a score was produced without
24 the knowledge of the housing authority applicants, and without
25 being offered an opportunity to explain or to review or

Page 19

1 anything of the kind because it was hermetically sealed.
2 these housing authority applicants were unable to
3 get housing because of what they contested as arbitrary and
4 discriminatory procedure. they had no means of challenging or
5 making accurate. this is what the, we believe, the id
6 requirement is going to do, and we also believe it's going to

7 result in terrible violations of people's rights to travel.
8 the court: but focusing now on your client and the
9 id requirement here, tell me again what is it that's so wrong
10 with that?
11 mr. simpich: well, our client can't drive, your
12 honor, he has a medical condition. as things stand he is
13 unable to fly, or take a train, or take the bus, or travel by
14 boat because it's our understanding from the government web
15 sites that identification, government photo id is required for
16 all those modes of transportation.
17 the court: i just thought you told me for purposes
18 of our discussion right now, you're going say it's either id or
19 search?
20 mr. simpich: right. we're saying neither should be
21 permissible. that's --
22 the court: you just said he can't travel because he
23 doesn't want to show his id, that's not quite true under your
24 assumption, which is that he could submit his body to a search,
25 right?

Page 20

1 mr. simpich: that's right.
2 the court: so --
3 mr. simpich: he doesn't believe, and we agree, that
4 it's constitutional to force him to submit to a more intrusive
5 search simply because he doesn't want to produce id.
6 the court: but it is okay for the government to be
7 worried about weapons being taken on airplanes, is that right?
8 mr. simpich: of course, it is, we don't quarrel
9 with that for a moment, the question whether there's a logical
10 connection between the government's worry about weapons and the
11 efficacy of an identification requirement.
12 it's our contention the efficacy of an identification
13 requirement would be -- does not exist, it actually would
14 result in more harm than good. and davis doesn't permit that
15 type of analysis. davis says you got to be focused on weapons
16 and explosives.
17 now, what good is a scoring system of the type that
18 we are talking about here, is it efficacious, we contend it is
19 not. does the identification requirement --
20 the court: so, you don't, or do you, object to the
21 patdown search for weapons?
22 mr. simpich: in terms of the search that all
23 passengers endure, we don't argue with that, if everybody is
24 being submitted to a patdown search.
25 the court: how about if every other person is?

Page 21

1 mr. simpich: if it's random, a truly random search
2 we're not quarreling with. a random search, in fact, we would
3 argue would be the most logical way to do it.
4 it would be objective and neutral, more likely to
5 come up with the bad guys, which is the point of this entire
6 endeavor.
7 the court: why doesn't your client allow himself to
8 be patted down?
9 mr. simpich: he does allow himself to be patted
10 down if everybody is being patted down. he doesn't want to be
11 singled out because there's no basis. it would be
12 non-objective and non-neutral for him to be patted down.

13 there's no reason to believe that he as an
14 individual, there's no indicia that are spelled out, for
15 example, in one of the cases we cited in our brief that would
16 put him in the hijacker profile.
17 if there's an indicia that put him in the -- a
18 hijacker profile independent of the id requirement, we wouldn't
19 challenge that. once the id requirement has entered into the
20 mixture, injected elements of abuse of discretion, your honor,
21 of standardless discretion.
22 because there's -- it simply doesn't point to
23 anything that's illegal. if you've got a warrant out for
24 somebody, if you got an indictment out for somebody, that's one
25 thing, you know you can go out there with a photo.

Page 22

1 but given that's not the situation with mr. gilmore,
2 there's no warrant out there for his arrest, there's no basis
3 for making him endure this type of scrutiny.
4 the court: okay.
5 mr. simpich: our argument, your honor, focuses
6 first on the right to travel. it's a basic compelling state
7 interest test, and shelton v. tucker it's clear it's got to be
8 narrowly focused.
9 this is our contention that in this context he's not
10 allowed to utilize multiple modes of travel. the alvarado case
11 and the knoll [sp?] case both state that air travel should be
12 considered a necessity.
13 granted the miller case says you're not entitled to
14 travel, but the case that miller stands on is a case called
15 barbarian [sp?] which says that you can't limit -- you
16 can't cutoff people's rights to travel in a common carrier.
17 and that's what's happened here based on these
18 regulations to date, your honor, he can't travel in any common
19 carrier. the only way for him to travel would be if he wanted
20 to go to washington d.c. or wanted to engage in seeing his
21 family or business, would be to hire a chauffeur or something
22 equally wild.
23 it's a very substantial impact we're talking about,
24 when you can't utilize any of these modes of travel or
25 sacrifice one of your constitutional rights. we brought up the

Page 23

1 unconstitutional conditions doctrine for just that reason.
2 your honor, he shouldn't be forced to sacrifice one of his
3 constitutional rights in order to exercise his right to travel.
4 the court: the constitutional right he's
5 sacrificing is?
6 mr. simpich: one, is the right to travel.
7 the court: wait. you just said he's given
8 something up in order, what is it he's giving up?
9 mr. simpich: if he were to submit to producing his
10 identification, that would be violation of his fourth amendment
11 rights under lawson.
12 lawson -- the other side construes these cases
13 saying it only applies to the right to arrest, but what the
14 lawson case states in the ninth circuit is that you are not --
15 forced to endure a request for id is one thing, but a demand
16 for id is another.

17 and once you are, once id is demanded of you and you
18 are forced to cough it up, if you will, then that's considered
19 more serious than a patdown search. the indignity of patdown
20 search lasts just moments, being in a data base and being
21 subject to constant scrutiny as the lawson case instructs lasts
22 forever.
23 that's a more serious injury, and it's for that
24 essential reason that the cases martinelli and casey in the
25 ninth circuit have held that someone who tries to demand id in

Page 24

1 that fashion is subject to civil liability.
2 so that's the essential, that's another pivot, your
3 honor, if you will, that mr. gilmore's standing on today. he's
4 saying, he is protected by this line of cases from being forced
5 to show his id and there is a risk of arrest in this context.
6 he was arrested in 1996 shortly after the security
7 directive was passed for refusing to show his id. the other
8 side tries to make some points by saying it was a state officer
9 who did it, but the realistic fear of prosecution is the same.
10 now we've got -- it's federalized at the airport, if
11 it happens again it's going to happen at the hands of a federal
12 agent, and he could very easily be brought in simply for the
13 act of failing to produce his id.
14 once his bags go through the magnetometer he's not
15 free to just leave the airport at this point. that's what the
16 torbet case says and that's what happened in the southwest
17 context.
18 he put his bags with the magnetometer like everybody
19 else, then he got close to the gate and then they said, all
20 right, now we want your id. and he said, well, i don't believe
21 i'm obliged to, pursuant to law, to show you an id, can you
22 show me a law? and they couldn't, but he was not allowed to
23 fly.
24 so we've got a very real injury there. and if i can
25 turn for the moment to the final leg, your honor, the first

Page 25

1 amendment.
2 it's a very broad encompassing injury. it's very
3 similar to the analogy we want to draw is to the curfew laws
4 because the curfew laws, like in the case of waters, focused on
5 all juveniles in, if you will, in the d.c. area.
6 and the court said, you know, there's just no
7 getting around it, you're injuring people's rights to
8 associate, you're injuring people's rights to assemble and
9 communicate with one another by this broad attack on their
10 constitutional rights.
11 the court advised -- when something like this occurs
12 you got to act gingerly because there's a serious intrusion
13 going on. and this is simply not a gingerly type act, this is
14 a broadly encompassed act where it's impacting many people like
15 mr. gilmore, who are unable to see their families, unable to
16 attend to their business interests, are unable to see the
17 political representatives in washington d.c. all because of a
18 requirement that they feel, and we believe rightly so, is alien
19 to what this country is about.

20 it's the equivalent of an internal passport to have
21 to carry one's papers. and so in that context we think that
22 the identification requirement should be viewed as analogous,
23 if you will, to a curfew law, and the standards set forth in
24 the waters case we think offer a good spotlight.
25 and we also believe that the court should adhere to

Page 26

1 the rule set forth in the healey case we cited, which focuses
2 on indirect injuries rather than on the line of cases which
3 focuses on an incidental effect.
4 we don't think this is an incidental effect, we think
5 this is a central attack on people's rights to travel
6 throughout the united states of america without being forced to
7 show their papers.
8 not across national borders, we're not raising that
9 issue, but that's a fundamental right. we think that's what
10 the right to travel is all about, we think that's what the
11 fourth amendment is all about.
12 the court: thank you.
13 mr. lobue: joe lobue, again, from the department of
14 justice.
15 i would like to start, i think, by giving some
16 background on the identification request and how it fits into
17 the whole process.
18 as we've indicated in our briefs, for about forty
19 years the government has implemented a variety of measures
20 which are designed to prevent hijacking. finding weapons and
21 explosives is one means to preventing hijacking.
22 another means to preventing hijacking set out in the
23 circuit [sp?] 49 usc section 114 is to prevent hijackers from getting
24 on airplanes in the first place.
25 if we know that an individual intends to hijack an

Page 27

1 airplane, it is fool hardy to allow him to get to that plane.
2 whether or not he has any weapons in his possession, if that's
3 his intent, let's stop him before he gets on the plane.
4 that's what congress wanted to happen, they wanted
5 government to provide this information to airlines, so that
6 they could prevent these people from getting on the plane in
7 the first place.
8 the second way it fits in is --
9 the court: to provide which information to the
10 airlines?
11 mr. lobue: under 114 the government is required to
12 provide to the airlines a list of people.
13 the court: who are likely to hijack airplanes?
14 mr. lobue: known to pose a risk to aviation safety.
15 plaintiff's so-called no fly list provided for in the statute.
16 known or suspected to pose a risk to aviation safety.
17 the purpose in that is for those people that are
18 known to pose a risk because of information the government has
19 in its possession the airlines can take steps to prevent them
20 from succeeding.
21 if they check their passengers' identity and they
22 find out that this individual is one of the people that the
23 government has identified, they can prevent him from boarding
24 the aircraft. it's right in the statute, it's what they're

25 suppose to do.

Page 28

1 secondly, if some other action is called for, if
2 it's not so clear then these airlines can take further
3 precautions, maybe do a further search of this individual.
4 none of this could happen without an identity verification
5 check.
6 secondly, when an individual is trying to hide his
7 identity it may be for innocent reasons, it may not, and the
8 government, as part of what's called the prescreening process,
9 which has been in use for about 25 years, is nothing new,
10 talked about the davis case, it's required by statute to be
11 used, section 44903(i)(2) requires the use so-called capps, the
12 computer assisted passenger prescreening system. the purpose
13 in that system is to identity individuals who are more likely
14 to pose a risk.
15 now, this doesn't mean they necessarily pose a risk,
16 it just means based upon an analysis of what hijackers have
17 done in the past, the way they've acted, their behavior
18 patterns, their maybe some indication there's more of a risk of
19 this individual we need to do a further search.
20 that's the capps system plaintiff has referred to in
21 his brief, in his complaint. the criteria used by the
22 government to identify those individuals is confidential, it's
23 not made public, prohibited to disclose it. the reasons are
24 obvious, if we were to disclose it can be circumvented.
25 the statute authorizes the agency to withhold this,

Page 29

1 particularly 49 usc section 40119(b)(1), specifically
2 authorizes the agency to prohibit disclosure of information
3 related to security activities.
4 the agency implemented regulations to prohibit
5 disclosure of this information, and it found if it did disclose
6 it would be detrimental to the safety of passengers. that's
7 ultimately what we're trying to do, protect other passengers,
8 as well as the plaintiff.
9 as the ninth circuit held in the united states
10 versus davis their program really protects the right to travel
11 as much as anything. protects it from private interference.
12 so what they're trying to do is to prevent other
13 individuals who don't want to travel, who don't want to allow
14 plaintiff to travel, their intent is to blow up an airplane, to
15 stop them from doing it. it clearly is rational for both these
16 reasons.
17 one, to check to see if this is amongst the
18 individuals known to pose a risk or suspected to pose a risk.
19 and, secondly, to see if the passenger's engaging in
20 some sort of behavior trying to hide his identity, keep it a
21 secret so authorities don't know who he is.
22 maybe he's trying to evade a detection device, maybe
23 he's doing something else, but ultimately the violation, if
24 there is to be one, is trying -- attempting to hijack an
25 airplane, attempting to carry weapons on an airplane.

Page 30

1 everybody knows that's what prohibited, what we
2 don't tell the plaintiffs and what we don't tell anyone else,

3 is what's going to make these security officers suspicious.
4 what is going to make them think, well, gee, maybe that person
5 is going to be the one who's carrying a weapon. just the way
6 he's acting. maybe there's something he's doing that's
7 consistent with what hijackers have done in the past that's
8 going to make the security officer be concerned and do a
9 further search.
10 the due process clause has never been thought to
11 require disclosure of law enforcement techniques like that. if
12 the alarm is going off in a bank and the person is running from
13 the bank, the police officer may well detain him, but nothing
14 requires a publication in advance that's going to happen.
15 all the person needs to know to comply with the law
16 is that bank robbery is prohibited. and that's the distinction
17 you have to keep in mind here and plaintiffs are saying this
18 law is void for vagueness.
19 the court: what is the rule that we all now know
20 that isn't void?
21 mr. lobue: the rule prohibits hijacking, it
22 prohibits attempting hijacking. this all set out in the
23 statute, we set it out in the brief, prohibits carriage of
24 weapons on airplanes, prohibits carriage of weapons in security
25 areas of airports.

Page 31

1 there is no rule requiring production of id's for
2 which one can be arrested, there's nothing like that.
3 plaintiff wasn't arrested, he was asked for an identification
4 card, that's it.
5 when he didn't produce it he left. he wasn't
6 detained, he wasn't seized, he was asked for identification.
7 the court: could you just say that once again, the
8 rule is, don't carry bombs and guns onto airplanes?
9 mr. lobue: don't attempt to hijack airplanes.
10 the court: that's the rule?
11 mr. lobue: that's the rule.
12 the court: what is the rule, if at all, concerning
13 identification?
14 mr. lobue: the identification check, every
15 passenger is requested to produce identification. as i've
16 indicated, the statute provides one of the purposes to check
17 whether that person is amongst those known to pose a risk to
18 aviation safety.
19 the other reason it's used for purposes of the
20 prescreening system, is this a person --
21 the court: i understand it, you said all of that.
22 you were saying the rule is not void for vagueness and we can
23 move on. i just want to know what the rule is that isn't void.
24 mr. lobue: if you're asking me to disclose what's
25 in the security directives, i can't do it.

Page 32

1 the court: i want to know what we're talking about
2 in this case. this man was told, "give me your id?"
3 mr. lobue: according to the complaint the
4 government mandated airplanes to request identification from
5 each and every passenger, that's what happened.
6 the court: i need to know what cite i'm talking
7 about when i try to make a decision whether this complaint

8 states a claim. so can i focus on that, that the government
9 required the airline to --
10 mr. lobue: i think you have to assume that the
11 allegations in the complaint are, in fact, true for purposes of
12 our motion, yes. that the government required the airlines to
13 request identification from the passengers.
14 that when they refuse to provide it, that southwest
15 airlines refused passage, and united airlines indicated that
16 the plaintiff would be allowed to fly if he submitted to a
17 further search.
18 we were prepared to assume all of that is true for
19 purposes of the complaint, they acted at the initiative of the
20 government. at the behest of the government.
21 the court: thank you.
22 mr. lobue: on the right to travel issue, turning to
23 that, it's not an absolute right, it's a right not to be -- to
24 be uninhibited by rules which unreasonably burden or restrict
25 the right to free movement.

Page 33

1 you're not entitled to be completely free from
2 government regulation because you're in travel status. the
3 ninth circuit in miller versus reed make clear that there is no
4 right to the most convenient form of travel. nobody has a
5 constitutional right to fly by air. the burden on a single
6 mode of transportation, the 9th circuit held this, does not
7 implicate the right to travel, much less violate.
8 secondly, even if it were implemented here, in
9 united states versus davis the ninth circuit specifically
10 upheld the airport screening procedures, which is what
11 plaintiff objects to, as being not an infringement of the right
12 to travel, specifically ruled on that claim.
13 so to the extent that plaintiff contends that the
14 government is taking away his right to travel by requiring him
15 to submit to a further search, his claim is inconsistent with
16 the united states versus davis.
17 to the extent he says that it violates his fourth
18 amendment rights or we're taking away his fourth amendment
19 rights by requiring identification because he's required to
20 submit to a further search, his claim is rejected by torbet
21 versus united airlines, which is the 9th circuit case that
22 follows on united states versus davis.
23 in essence, under the fourth amendment to begin with
24 a request for information identification is not a seizure, it's
25 not even subject to the amendment. that's establish by florida

Page 34

1 versus royer a supreme court case.
2 even if it were the standard would not be applicable
3 to administrative searches. that's set out in davis.
4 administrative searches being not evidence to find crime serve
5 some administrative purpose such as preventing hijacking.
6 in such cases there is no probable cause
7 requirement, it's sufficient that the search is reasonable, and
8 torbet the court held that the scanning devices alone are not
9 sufficient for this purpose. that the government has to be
10 able to, because those are inconclusive, the government has to

11 be able to do a hand search in appropriate cases.
12 so such a hand search is consistent with the fourth
13 amendment, therefore, plaintiffs aren't giving up their fourth
14 amendment rights by submitting to such a hand search.
15 on the first amendment issue the plaintiff cite a
16 district court opinion in d.c. having to do with a curfew law
17 which was subsequently effectively overruled by the court of
18 appeals of the district of columbia.
19 and the reasoning for that is set out in our reply
20 brief on page 15. there's two cases cited, one of them a ninth
21 circuit case nunez versus san diego and the other one arcara
22 versus cloud books, supreme court case. both of which hold
23 where the thing being regulated is not expressive activity,
24 what's regulating here is air travel, we're not regulating the
25 right to associate, we're not regulating the right to petition

Page 35

1 the government, we're regulating air travel which doesn't have
2 an expressive element, it has an incidental effect on
3 plaintiffs.
4 it's not association with others and how he goes
5 about petitioning the government, but it doesn't regulate
6 anything with a significant expressive element. air travel
7 doesn't have significant expressive element, doesn't impose
8 some kind of disproportionate burden on air travelers try to
9 associate, they're treated as everybody else, everybody is
10 asked for id. for those would two reasons the first amendment
11 isn't even implicated here.
12 that's all i have, unless you have questions.
13 the court: that's good. thank you. any final
14 brief word, mr. simpich?
15 mr. simpich: thank you, your honor, very briefly.
16 first point, is that they, in fact, have not addressed the
17 court's question on what the law is. we still haven't been
18 told whether this requirement is mandatory or optional.
19 southwest, for example, never asked mr. gilmore if
20 he would submit to a search, they simply removed, told him he
21 had to leave because he wouldn't show his identification.
22 so when they say that they are adopting the
23 statements in our complaint, we told them simply what we had
24 been told, but we still stand here at this day not knowing what
25 this law is, whether it's mandatory, vis-a-vis the search,

Page 36

1 vis-a-vis the id, or whether the search issue is also embedded
2 within.
3 it's a secret law and until that particular issue is
4 resolved, your honor, we don't think that the government can
5 wiggle out of this case in any way shape or form. the law
6 needs to be clearly stated in one way or another. it should be
7 published in one way or another.
8 we don't have a foia claim, we don't have an equal
9 protection claim, those claims are gone, but in terms of secret
10 law, we stand here not knowing what the identification
11 requirement is.
12 i also wanted to state, that what makes these
13 officers suspicious at the gate is the assertion of rights, the

14 exact assertion which lawson and the ninth circuit case you
15 can't pick somebody up or force them to be involved in showing
16 their id. they said it's worse than a seizure, they said it's
17 worse than a search because it involves injury that will last
18 forever.
19 the court: just out of curiosity, what is the
20 injury that will last forever in showing your id?
21 mr. simpich: once the id is given, then they are
22 able to take down your name and all your data. that data can
23 then go, as lawson instructs, that data can now go into a data
24 bank and be part of a permanent profile that can be used
25 against the citizen in the future.

Page 37

1 it's precisely for that reason that one's identities
2 are so jealously guarded in our society. that they can't just
3 be -- it's one thing to ask, but it's another thing to demand
4 it. and mr. gilmore was in a situation in 1996 where because
5 he refused to provide his id he found himself behind bars for a
6 period of hours. and it's that essential right that we're here
7 to protect.
8 the court: that isn't this case, this case is a
9 different case, right? you didn't bring that case to this
10 court.
11 mr. simpich: can't happen here. united, for
12 example, there was a realistic -- it's an issue of fact whether
13 he was seized when he was surrounded by the security people.
14 in this case it's an issue of fact once he submitted to the
15 magnetometer that he did at southwest he's no longer free to
16 go.
17 he's got a realistic fear of prosecution. he has
18 agreed to an implied consent to search under torbet once those
19 bags go through the magnetometer.
20 now, again, if they got indicia, which the dorsey
21 case points out, if he's acting shifty, or clothing is loose,
22 or needle marks, or this or that that's actual indicia for
23 which a search is proper.
24 an identification requirement offers no indicia at
25 all. it's not constitutional to force individuals who have

Page 38

1 done nothing wrong to submit to that and then when they
2 complain to be forced to a more intrusive search based on that
3 complaint.
4 the court: that's what we're here to find out.
5 that's the question.
6 mr. lobue: that's where we stand -- lawson. lawson
7 is our authority.
8 the court: thank you all very much. i'm sorry i
9 haven't heard from southwest, what do you want to say?
10 ms. barrett: not much. your honor, as plaintiff
11 has pled this case there's only two claims left as to southwest
12 involving first amendment, because plaintiff's own admission we
13 did not ask to even search him, so there was no fourth
14 amendment claim against us, would be only against united who
15 did ask to search. plaintiff pled we only asked for the id,
16 when he failed to show it that we would not allow him to board.
17 so plaintiff's claims against us, i think, are
18 limited at most to the first amendment claim for freedom of a
19 association and right to travel. as we pointed out in our

20 reply brief, we did not interfere by any means, let alone
21 substantial means, in either of those first amendment rights.
22 because it's clear from his own pleading he could have traveled
23 on united airlines to washington d.c. and that all we did was
24 forbid him from traveling on southwest airlines to baltimore
25 and that is not a violation of any constitutional right.

Page 39

1 it seems to me that southwest airlines, whether or
2 not it's a government regulation require him to show an
3 identification, by his own pleadings saying that if he had
4 submitted to the search, which southwest did not ask for, he
5 could have traveled.
6 there is no denial of his right, so of course, as to
7 the first amendment claims we also adopt the government's
8 arguments, which i won't burden you with duplicating right now,
9 but as to my client, your honor, i do not think there's any
10 claims stated at all.
11 the other remaining claims in the complaint, which
12 are one, three, four and i assume now from counsel's statement
13 six and seven are gone, are all claims against the regulatory
14 statutory scheme which we would not be involved in obviously
15 because we're not the government and we did not create or
16 implement those.
17 the court: thank you. six and seven are gone?
18 mr. simpich: six and seven are gone. if i could
19 have just a moment on one or two points here.
20 the court: a moment.
21 mr. simpich: thank you. in essence, your honor, on
22 her fourth amendment argument, it's our contention that, again,
23 the demand for id by southwest is a fourth amendment violation.
24 whether the court construes it as a search or
25 seizure or doesn't matter much to us, we stand on lawson,

Page 40

1 martinelli, carey, on that line.
2 in regards to the right to travel issue which
3 counsel argues they should not be liable for, again, this goes
4 right back to the secret law issue, as to whether or not they
5 have the right to demand id or not. we do not know what that
6 law is because it's not been published. the government has
7 stated, as we mentioned in our addendum that the airlines are
8 not mandated to demand, merely request it.
9 the court: all right. thank you.
10 (court adjourned:)

(Final page)

certificate of reporter

i, james yeomans, official reporter for the united states
district court, northern district of california, 450 golden
gate avenue, san francisco, california 94102, do hereby certify
that the foregoing transcript, pages numbered 1 through 40,
inclusive, constitutes a true, full and correct transcript of
my shorthand notes taken as such official reporter of the
proceedings hereinbefore entitled, and reduced to typewriting
by computer to the best of my ability.

_________________________ february 17, 2003 [probably january 17, 2003]
james yeomans, rpr, csr