Gilmore v. Gonzales 	

Rough Transcript And Commentary From The 9th Circuit Court of Appeals Hearing December 8, 2005. All text paraphrased unless in quotes. Will be updated with tape transcription when time permits. 



Jim Harrison, Attorney for Plaintiff John Gilmore: Begins his argument by declaring that the danger in the war on terror is what we do to ourselves in the name of security. He says the heart of the case is the ID requirement which has been made part of airport screening procedures.  

Circuit Judge Richard A. Paez: Interrupts Harrison to ask about the question of jurisdiction in the case. 

Harrison: The TSA says the appellate court has jurisdiction. But can the appellate court exercise exclusive jurisdiction without a record? "The answer is no, we don't' have a record to review in this case."

Paez: The government offered to show (whatever  government order supports the ID requirement) to the district court under seal. 

Harrison: No, they offered it to this court. They wouldn't show it to the district court. 

Paez: I'm corrected, they offered it to us. 

Harrison: You have no reason to look at it.  You have a 12bc motion to dismiss. You have to use the record that the lower court has and you can't add to that record. Can they file documents under seal here, no. They can't expand on the record. 

Senior Circuit Judge Stephen Trott: Do you want us to remand the case?

Harrison: Yes. It is a broad constitutional challenge that belongs in district court. "You are not here to hear evidence." 

Paez: I don't want to talk about the record, I want to talk about jurisdiction.

Harrison: "Can the court exercise jurisdiction on this matter without a record, the answer is no."

Circuit Judge T.G. Nelson" If it has been filed here, we would have jurisdiction. "Why can't we look at it now?"

Trott:  "We have jurisdiction to determine our jurisdiction." 

Jim: "Be my guest. If it belongs here we ask to amend. But it doesn't belong here because it concerns a broad constitutional challenge." 

Paez: Are your challenges intertwined? (He is trying to figure out jurisdiction)

Jim: "Our challenge is centered on the ID requirement that applies to everybody, there are no facts tied to Gilmore."

Trott: In essence... 

Jim: "This is an administrative search not a Terry search." (a Terry search occurs when a police officer does not have probable cause, but reasonable suspicion to stop and question a suspect. In those circumstances, the Supreme Court determined that officers can briefly detain suspects, but cannot force them to answer questions or transport you to another location. The key issue is there is no reason for suspicion in airport ID searches.) 

Trott: What about asking people for ID in a public place? (If an officer asks you for ID on a street and has no suspicion, you are free to leave. A possible argument in this case is that if you are stopped in public there is no penalty. But there is a penalty if you are asked for ID in an airport. If you fail to produce an ID, you can't travel and loose a fundamental right.) 

Harrison: This is an administrative search. (An administrative search is included in a body of case law that deals with searches that happen to everyone without suspicion. It is one of the biggest holes in the 4th Amendment and includes searches and metal detection in airports and building. Under these conditions, you can be searched without probably cause and without a warrant, but there are supposedly strict constraints on its application.) 

Harrison: This is an administrative search which triggers a 4th Amendment challenge. Resonableness is the test and Davis set the standard for airport administrative searches. 

The standard is you can search for weapons and explosives. Your search is confined in good faith to that purpose. (In airport ID checks, officials are not trying to find weapons and explosives, they are trying to find people on secret lists.) 

Trott : Asks again if it is unconstitutional to ask for ID in public. 

Harrison: It is an administrative search. It can't be personal and look for paticular person. It has to apply the same standards to everyone. 

Trott: What is you best case on this?

Harrison: The Hiibel case involved a 4th Amendment test, but here there is no suspicion. Hiibel involved a case with suspicion and state law (The Nevada Supreme Court ruled in Hiibel that suspects are only required to state their name, but not produce and ID which was ruled as an improper search. The Supreme Court relied on this interpretation when they heard the case.) 

In the Davis case, the court warned about airport searches being subverted for all purposes and used by law enforcement. Footnote 43 in the Davis decision cites an example that, for instance, law enforcement could use a manifest for law enforcement purposes. Section 4 of Davis is all about the right to travel, it says its fundamental. 

Paez:  Do you have a right to travel by airplane?

Harrison: Davis says if it impinges on your right to travel, the court must look at it. Davis spent all these pages figuring out what it did to impinge on the right to travel. The lower court in our case glossed over it and said there is nothing here. This court said you must examine the whole airport search scheme. (He is referring to the 9th Circuit ruling in the Davis case.) 

TSA calls (the ID requirement) an order, a security directive, a law enforcement techniques. "Whatever they call it, we can't see it. If affects everyone in this country and their ability to see it and challenge it, and this court's ability to review it." 

Paez: Whatever it is, it requires the airlines to do something...

Harrison: Passengers have to pull an id out of their pocket, it is a search. 

Paez: Can't they just leave?

Harrison: That is a punishment. (He could have also argued here that the fundamental right to travel has been restricted - if passengers refuse a search they loose a fundamental right.) 

Harrison: "Laws must be written down. This is America, we do not have secret laws. Period." 

What TSA is about to argue is that it doesn't matter why they told them to do it, what matters is that it is the law."

Trott: What about the Delgado, there is no 4th Amendment violation simply by asking...

Harrison: That was a Terry search, not an administrative search that triggers a 4th Amendment problem. 

Trott: If the 4th Amendment isn't implicated.

Harrison: It is an administrative search, 
there is no seizure to trigger the 4th Amementment. The difference between this and a Terry search is that the Terry search is a search and seizure and here we don't need a seizure to trigger a 4th Amendment issue. 

"They are not asking 100 million people a year to look in their wallets for an ID. It can't be personal." Terry involves a search without a seizure. 

Trott:  Asking someone for an ID is not a seizure..

Harrison: This is an administrative search. 

Trott: In this Hiibel case, they said police investigations are free to ask questions. 

Harrison: It is an administrative search. 

Trott -It is an inquiry not a search. (He also could have argued that the Nevada Supreme Court found that suspect had to produce a name, not an ID.) 
Harrison: They are saying this is SSI (Sensitive Security Information) This is a law. 

SSI applies to law of general applicability. "They say if we make the law public they won't catch as many bad guys. That is a very dangerous road for this country to go down."

We ask that this be remanded to the lower court to develop a record to be able to challenge it. I'd like to point to the Southern California  Advertiser case. (He brings the case up partly because Trott wrote the decision. The appeals court ruled in this case that they cannot look at a case without a record.) 

We should send it back with instructions that we can inquire as to the reason for the ID rule and build a record. 

(The government's argument) 

DOJ Appellate Attorney Joshua Waldman: The showing of ID in the U.S. speaks to passenger safety. "Davis upheld search proceedings like this that withstood a 4th Amendment challenge."  

This does not make inroads into to 1st Amendment right to assembly and petition.

Trott: As applied to him 

Waldman: Right, he can assemble anywhere, he can travel by other means. You can assemble anyway you want, it does not impact 1st Amendment rights at all. 

On their vagueness claims, they claim they have no notice of what the law requires. But their complaint says they got oral instructions and they saw a sign in the airport and on the website that says they have to show id. "They got actual notice. We usually use the legal fiction that it is in the US code and so people know it." 

(There is the fiction that if a law is published and it is in the U.S. code than defendants have notice. Waldman is suggesting here that if the government puts up signs and notices and web sites for the ID requirment, they don't actually have to pass a law.) 

As far as the claims of due process, it applies to everybody uniformally they have to show ID. It is part of a good faith effort to find weapons and explosives. 

Paez: What about jurisdiction. 

Waldman: (Reply not noted) 

Nelson: How did the district court know that? Point me to the order in the record. 

Waldman: "You don't need to have an administrative record to have an order." 

Nelson: "There has to be a showing of an order." (If there is no order, the court has no jurisdiction.) 

Waldman: "It is security directive, an order, anything other than an APA notice and comment rule. We issued this under section 14s. It is not published." 

Nelson - "How do we know there is an order? What was (the district court) looking at?

Waldman - "The court looked at the complain and studied the motion to dismiss and assumed that there was truth in the allegations. It assumed there was a security directive." 

Trott: The government didn't stipulate it was an order?

Walman:  "No, we could not confirm or deny its existence. I know it sounds peculiar." 

Paez: "It's odd,"

Walman:  If it was not a security directive we would still say the same thing, the jurisdiction belongs in this court. 

Paez: "Is it proper for the court to look at the complaint on a 12b6. 
The district court?  We need to assure ourselves, "It is kind of strange to take a look at what is out there, what it might be." 

Waldman: District court 

Paez: Would she (District Court Judge Susan Illston) have to look to see if his other claims are related. The court went on and ruled on the broad constitutional challenges despite the lack of jurisdiction. 

Walman: She had no jurisdiction over any of it. 

Paez: "Wouldn't you want to see what was out there to make the determinations."

Waldman: It's plain from the complaint. 

Paez: The government position is that the district court has no jurisdiction. 

Trott: "I love it. The government is clamoring to get before the 9th Circuit. Be careful of what you wish for." 

(audience laughs)

Waldman: We believe you've give it a fair hearing.

Paez: "Can we transfer the complaint here?" 

Waldman: Yes.

Paez: What about Mace? (The Mace case.)  There are broad constitutional challenges to a practice. It is a non-due process claim. Why doesn't the principal of Mace apply? 

Waldman: Mace is tricky. All the plaintiff challenges is as applied. The second is in the arguments because the case revolves around facts particular to him. 

For example, on the right to challenges that he can't travel by any other means because he has medical conditions particular to him. 

On the 4th Amendment - the fear of arrest without ID because of his '96 arrest. In his due process argument, similarly, based on what the airlines told him, the outcome wouldn't turn on these. But it makes the challenges as applied. It must go directly to this court. 

(There is a distinction between an applied challenge and challenges to the court of appeals. A general challenge is something that only applies to a single person and if the courts agree, they rule only for you. If it is a challenge on its face, then the ruling applies to everyone.) 

Trott:  "What was the government's purpose in the district court playing cat and mouse?"

Waldman: The district court can't comment on what this is or isn't. 

Trott:  The government won't concede anything. 

Waldman: "The government is bound by SSI regulations. I can't disclose it without a need to know." 

Trott: (quoting from the decision) Defendant refused to..."Are they afraid of someone being charged with felony for classified information?" 

Waldman: "It is not classified, but it cannot be disclosed"

Trott: Now there is an attempt to file something under seal. 

Waldman: If the court... 

Trott: "There is a brouhaha as to whether you can file this under seal."

Waldman: "I personally don't understand it. There is a peculiar Orwellian feel about it." 

Trott: "We wouldn't know what to do, we wouldn't know what to ask." (He is referring here to a case heard earlier in the day. The case involved a defendant who didn't trust the judge to rule on the findings of an informant and wanted the court to unseal the accusation.) 

Waldman: "You can decide it." 

Trott: "What is the government recommending we do here? Dismiss on jurisdictional grounds?"

Waldman:  Yes. Dismiss on jurisdictional grounds or transfer it here and affirm the lower court ruling and reach agreement on the merits.

Paez: "What about the merits, do you want to address the merits?" 

Waldman: Search and seizure. "Did Davis set the constitutional maximum for airport searches?"

 The incremental addition of the ID requirement ...is no big deal. IDs are required to get into court. 

"It promotes the right to travel by protecting everyone's safety," These are incidental burdens on the right to assemble and the right to petition. 

"I am not aware of the right to travel anonymously." 

Trott:  Griswald, (A case that was used by pro choice advocates to uphold the right to privacy in abortion cases.) "Griswald upheld the right to privacy 

Waldman: There is no anonymity in Griswald. "Since time immemorial, people have been doing things anonymously, that does not apply to airplanes." 

Some aspects of rights can be exercised in anonymity. But those are part of the core 1st Amendment like the Federalist Papers. 

He could have submitted to a search instead. 

Nelson: "If plaintiff were to show in a practical situational that air travel was their only way to travel, would that affect the choice questions. If you are going to travel at all." 

Waldman: "It doesn't change the 4th Amendment analysis. There is some impact on the right to travel. Here we don't have that claim. 

Only one mode of travel is foreclosed. "The ultimate burden on the right to travel - is it a reasonable or not reasonable one - a compelling public safety interest. It is a minimum burden and doesn't interfere even if air is the only was to travel. I have difficulty understanding why they couldn't get into a car or hire a chauffeur." 

(rebuttal) 

Harrison: The court should send it back.

Trott:  If we keep it, do you wish to amend. 

Harrison: Yes, 

Trott:  In what respect. 

Harrison: "There is a challenge to all forms of travel in the U.S. Amtrack requires ID and does not give an option for a higher level of search. The Coast Guard web site says all passenger vessels must identify their passengers. "We would like to flesh out other forms of travel. If there are standing issues, we want to correct them." 

"Davis is extremely limited on what they can do to search for only weapons and explosives. U.S. vs. $124,570 is right on point. (He is referring to an airport search that found undeclared money in luggage and seized it. The case was thrown out because airport security had no reason to look for the money.) 

Trott:  What about asking for ID in a public setting? (The Hiible case addresses this issue. If police ask for an ID in a public setting and you decline, there is no penalty. If you are asked for an ID in an airport, you are restricted from doing what you want - in this case getting on an airplane. Your right of free movement has been restricted.)

Harrison: "This is an administrative search, this is not a public setting."

Trot:  Thanks for answering my question... (he says this sarcastically.) There aren't any cases. 

Harrison: This is a unique situation, we are facing. We are relying on the judiciary to lead us through. The facts don't limit..everyone must show ID. 

Trott: (Reply, no notes) 

Harrison: There are no facts in this case, This is a broad constitutional challenge. I don't understand what the rule is. Ninety-nine percent of American would be shocked to know that you don't need an ID to get on a plane.

Trott: Americans would be shocked to know what?

Harrison: The sign says passengers have to show an ID. The government says passengers don't have to show ID. 

Nelson: You mean it should say show ID or leave?

Harrison: "What's shocking is that the judiciary is getting one story and the American people are getting another." (It's not clear that the judges didn't know that he meant that they have an option to undergo a secondary search and not show an ID. There is no sign that says show an ID or be searched.) 

"Davis says it can't be personal. The ID requirement makes it personal. It is not looking at what they have with them, it is looking at who you are." 

Regarding aircraft and the only way to get somewhere. Airplanes are a unique and irreplaceable form of travel. It gets special status. It is not something that is replaceable. On page 79 is states....."The ID test is a behavior test. Is he willing to show ID or not. That's not its job. Their job is to search for weapons and explosives. 

(He sites a well-known quote about the ubiquitousness of airport searches.) You know the quote, you know the drill. "We are loosing it to the incessant nibbling of government."