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 Whether this is actually the government's policy is unclear, as the policy, if it exists, is unpublished.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 _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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