Aviation Law Alert: Court Holds Identification and Search Requirements at Airports Are Constitutional

Since the tragic events of September 11, 2001, regulations and statutes have been implemented to ensure the safety of the public, both in the air and on the ground. Many of these newly enacted laws are facing challenges in the court system. One such challenge to the requirement that airline travelers identify themselves and allow themselves to be searched was recently decided in favor of the enforcing organizations.

On July 4, 2002, the plaintiff, John Gilmore, purchased a commercial airline ticket for travel from Oakland, California, to Baltimore, Maryland, in order to "petition the government for redress of grievances and to associate with others for that purpose." At the airline check-in counter, the plaintiff refused to voluntarily produce a government-issued identification, but was offered the option of consenting to a search at the screening checkpoint, which he did.

Once at the boarding gate, the plaintiff was again asked and again refused to provide a government-issued identification. This time he was not permitted to board his flight.

The plaintiff then filed a lawsuit against a number of private and federal government entities, including the TSA and the FAA, arguing that the requirements to produce a governmentissued identification and to consent to search as a condition of commercial air travel were unconstitutional. The plaintiff also alluded to arguments that the government was exceeding its authority to examine passenger names and identifying information against "no-fly watch lists" through the Consumer Assisted Passenger Prescreening System ("CAPPS").

The plaintiff brought the following constitutional causes of action in his lawsuit styled John Gilmore v. John Ashcroft, et al., No. C02-No. C02-3444 SI (N.D. Cal.):

1. Fifth Amendment: violation of his due process rights as an unconstitutionally vague government policy or directive;
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3. Fourth Amendment: violation of his right to be free from unreasonable searches and seizures where he faced the "penalty" of being denied permission to fly if he refused to comply with either;
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5. Right to Travel: violation of his fundamental right to domestic travel as the requirements were unreasonable government burdens and restrictions on his movement;
6. 
   
7. Freedom of Association: violation of his First and Fourth Amendment rights to freely associate with others who also sought to travel to Washington, DC, for political purposes;
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9. Right to Petition Government for Redress of Grievances: violation of his fundamental right to petition government by unduly burdening his exercise of travel to where the seat of government is located.

The named defendants subsequently moved the district court to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted. On March 23, 2004, the district court issued an order dismissing all of the plaintiff's claims, finding that the identification and search requirements

1. were not necessarily vague as they were permissible means of providing screening of all passenger and property aboard a passenger aircraft (49 U.S.C. section 44901) and the airline was within its right to deny transport to passengers who refused consent to search (49 U.S.C. section 44902)—since the plaintiff's claim squarely attacked the orders or regulations issued by the TSA and/or the FAA with respect to airport security, the district court was without jurisdiction to hear the challenge and, without the unpublished regulations or statutes before it, the court was unable to conduct any meaningful inquiry as to the merits of the plaintiff's vagueness argument and, therefore, dismissed the claim for lack of standing or jurisdiction. See 49 U.S.C. section 46110(a).
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3. did not constitute a search for Fourth Amendment purposes where the plaintiff was free to refuse without pain of criminal or other governmental sanction; or, if it was a search, it was reasonable in that it was for a limited purpose and the plaintiff could have avoided it by choosing not to fly. See U.S. v. Cirimele, 845 F.2d 857, 860 (9th Cir. 1988), Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 216 (1984), Torbet v. United Airlines, 298 F.3d 1087, 1089-90.
4. 
   
5. did not infringe any right to travel, as that right does not guarantee travel by any mode and the plaintiff could have chosen alternative means. See Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999), Monarch Travel Serv. Assoc. Cultural Clubs, Inc., 466 F.2d 552 (9th Cir. 1972).
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7. did not infringe any right to free association where the plaintiff's inability to travel by commercial airline only indirectly affected his ability to associate with others in Washington, D.C. See Storm v. Town of Woodstock, 944 F.Supp 139, 144 (N.D.N.Y. 1996) (the plaintiff's allegation fails as a matter of law because the only actions which violate this right are those which are "direct and substantial or significant").
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9. did not violate the plaintiff's right to petition government as the restriction on travel only made it more difficult–not impossible–to exercise that right. See Hilton v. City of Wheeling, 209 F.3d 1005, 1006-07 (7th Cir. 2000).

The district court also appears to make additional conclusions given the facts and law. First, the district court concludes that the plaintiff lacked standing to attack the validity of CAPPS and any government "watch-lists" or "no-fly" lists where he could not show actual harm to himself from their existence. Second, the district court concludes that the court of appeals shall have the exclusive jurisdiction to hear arguments against the validity of any TSA/FAA order or directive.

It is probable that the district court's March 23, 2004, order will not bring an end to these hotly contested issues in the current post-9/11 climate. However, the order does reflect the careful scrutiny the courts are giving to these issues that impact the safety of the public as well as the civil liberties of all individuals. As the district court makes clear, as far as this plaintiff is concerned, his recourse, if any, will be in the Ninth Circuit Court of Appeals or the Court of Appeals for the District of Columbia Circuit.

For more information on this issue or other Aviation matters, please contact:

• Stephen C. Johnson at (415) 984-8222
• Brian C. Dalrymple at (415) 984-8275
• Hugh R. Koss at (415) 984-8414
• William L. Robinson at (949) 475-6911
• Donald B. MacDougall at (516) 832-7611
• Kyle Levine at (415) 984-8272
• Eric Strain at (415) 984-8373
• Lori Winfree at (949) 475-6916