Hearing Transcript from January 17, 2003:


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