Amicus Curiae Brief — Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.

Suprema Court, U. 3.

G FITEQDO

No. 03-5554 DEC 1 5 2005

In The

Supreme Court of the Anited States

* -

LARRY D. HIIBEL,

Petitioner,

V.

THE SIXTH JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA, IN AND FOR THE

- COUNTY OF HUMBOLDT, et al.,

Respondents.

On Writ Of Certiorari To The

Supreme Court Of Nevada

+

BRIEF AMICUS CURIAE OF JOHN GILMORE

IN SUPPORT OF PETITIONER

¢

JAMES P. HARRISON

LAW OFFICE OF JAMES P. HARRISON

980 9th Street, 16th Floor

Sacramento, CA 95814

(916) 492-9778

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ..........0sseceeeeeeeseees 1

SUMMARY OF ARGUMENT.............:cecceseeeeeeenereeeees 2

ARGUMENT. ....ccccscccccccccccsccsccssccccccvcccccccsccsecsscsscesoces 2

I. Air Travelers are Not Required to Produce

Identification ..............ccccccccccsccccssecsccccscececeees 2

Il. The Absence of an Air ID Requirement

Supports Reversal.............:sssseeseeeeeeeeereeeeneeeens 8

CONCLUSION .........ccceccssccssccsccececesecceeeecescecsceneeeenens 12

1

INTEREST OF AMICUS CURIAE'

John Gilmore has done extensive legal and factual

research on identity requirements. He respectfully sub-

mits this brief to bring to the Court’s attention an error of

law made by the Supreme Court of Nevada in its decision.

Like Mr. Hiibel, Mr. Gilmore was himself arrested in

1996 for “delaying or obstructing a peace officer in the

performance of their duties.” He was arrested in an

airport, after refusing a police officer’s demand for identi-

fication. The charge was never prosecuted, yet Mr. Gilmore

was arrested, searched, transported, and detained for

many hours. Like the “dedicated libertarian” mentioned in

the Nevada Supreme Court dissent, Mr. Gilmore has

deliberately chosen to have neither a driver’s license nor a

state-issued identification (“ID”) card. If this Court decides

that any police officer can demand identification based

upon the slightest suspicion, Mr. Gilmore will continually

be at risk of arrest, prosecution, and incarceration.

On July 4, 2002, Mr. Gilmore was not allowed to board

commercial aircraft at two airports because he declined to

show ID and declined to consent to a more intense suspi-

cionless search based on his lack of ID. Mr. Gilmore is thus

the plaintiff in Gilmore v. Ashcroft, et al., C02-03444,

presently before Federal District Court Judge Susan

Illston in the Northern District of California, where he

: Letters from all parties consenting to the filing of this brief have

been filed with the Clerk of this Court. No counsel for a party authored

this brief in whole or in part, and no person or entity other than amicus

curiae made a monetary contribution to the preparation or submission

of this brief.

2

seeks to uphold the long-standing constitutional rights to

travel and to pursue a lawful existence without being

required to carry “identity papers.”

+

SUMMARY OF ARGUMENT

The Nevada Supreme Court has made an error of law.

Contrary to statements made by that Court, no law or

regulation requires travelers to show identification before

traveling by air in the United States. To the extent that

the constitutionality of Mr. Hiibel’s arrest relies on the

argument that “everyone is required to reveal government

issued identification to airport officials”, the decision below

should be reversed.

¢

ARGUMENT

I. Air Travelers are Not Required to Produce

Identification

The Executive Branch has effectively convinced the

public, apparently including all the judges of the Nevada

Supreme Court, that travelers are required to show

government-issued identification before flying. Signs in

airports from the Transportation Security Administration

state, “Passengers must present a BOARDING PASS and

PHOTO IDENTIFICATION.” Other signs headed “A

Notice From the Federal Aviation Administration” include

the sentence “PASSENGERS MUST PRESENT IDENTI-

FICATION UPON INITIAL CHECK-IN.” The TSA's web

3

site states “Boarding Pass and Photo ID Required To Get

to Your Gate.”

However, no such requirement has ever been enacted

by Congress. Nor has any such requirement ever been

published in the Federal Register by any Executive

Branch agency. Neither FAA nor TSA has ever legally

required travelers to have or present identification in

order to travel. Although the government posts signs, and

armed guards eject travelers who decline to show identifi-

cation, federal agency officials freely admit that there is no

such requirement.

FAA, DOT, and airline officials have repeatedly stated

in writing that there is no federal requirement that

passengers identify themselves. When these responsible

officials are asked for the written rules, they disclaim the

existence of a published law or regulation that requires

identification. Their official position is that there is merely

a “request”, not a “requirement”, that passengers provide

their identification. Though the government admits to

issuing secret orders making airlines “request” ID, and

discouraging carriers from allowing unidentified passen-

gers to fly, they also firmly state that there is no prohibi-

tion on flying without ID. Mr. Gilmore submits the

attached documents as evidence for this statement.

As far back as April 1996, Cathal L. Flynn, Associate

Administrator for Civil Aviation Security at the FAA,

admitted in a letter sent to publisher Robert Ellis Smith:

, http://www.tsa.gov/public/interapp/editorial/editorial_1044.xml

(as viewed on December 10, 2003)

4

“The FAA issued a Security Directive to be put

into effect at airports throughout the country...

It is a countermeasure listed within this Security

Directive that mandated that airlines request a

valid form of identification from airline ticket

holders. While an airline is required to request

identification, the actual presentation of identifi-

cation by the passenger is not absolutely re-

quired, and there is currently no prohibition

against allowing someone on an aircraft without

such identification. ;

_. . Refusal to allow a passenger without a photo

identification to board the aircraft .. . is the pol-

icy of an individual airline; this is not an FAA se-

curity requirement.”

5

airline’s interpretation of security measures in

an SD; measures such as ID checks. Neither of

these documents are disseminated to the public,

nor are they releasable.”

(Exhibit B)

In June, 2001, James F. Parker, the General Counsel

and incoming CEO of Southwest Airlines, wrote to Dr.

Richard Weil:

“Unfortunately, I am unable to discuss with

you the FAA-mandated requirement that, under

certain circumstances, Southwest Airlines and

all other domestic air carriers request identifica-

tion from their Customers. This inability does

not stem from any unwillingness on the part of

Southwest Airlines to challenge the FAA (as we

(Exhibit A)

In a May 1997 response to Samuel Weiler’s FOIA

request, the same Cathal L. Flynn again stated:

have done on countless occasions over our 30

year history), but instead derives from an FAA-

imposed mandate which effectively prevents

« _. the Federal Aviation Administration (FAA)

has required airlines to request a valid form of

identification from airline ticket holders. While

an airline is required to request the identifica-

tion, its actual presentation by the passenger is

Southwest Airlines from disclosing sensitive se-

curity information to the general public.

_.. Therefore, we must respectfully decline to

join you in opposing the requirement that Cus-

tomers present identification.”

not mandatory, and there is currently no prohibi-

tion against allowing someone on an aircraft

without such identification. The absence of iden-

tification, however, requires the airline to use al-

(Exhibit C)

In December 2001, Secretary of Transportation

Norman Y. Mineta wrote in a letter to Dr. Richard Weil:

ternative measures to provide the same level of

security protection.

The security directive (SD) in force at the

time of your flight would be the governing legal

document sent to the airlines relative to the

question of ID checks. When necessary, a policy

guidance letter may be sent by FAA in order to

clarify the Government’s intent or to address an

“Congresswoman Betty McCollum has asked

me to respond to your letter concerning require-

ments to show photo identification before board-

ing an aircraft.

(f)...

6 7

The FAA does require the air carriers to re- MR. LOBUE: THE IDENTIFICATION

quest valid forms of identification from their CHECK, EVERY PASSENGER IS REQUESTED

ticket holders. However, should a passenger not TO PRODUCE IDENTIFICATION. AS I'VE IN-

present acceptable identification because they do DICATED, THE STATUTE PROVIDES ONE OF

not have a photo identification card or refuse to THE PURPOSES TO CHECK WHETHER THAT

show such identification, an air carrier must ap- PERSON IS AMONGST THOSE KNOWN TO

ply alternative measures of their choosing that POSE A RISK TO AVIATION SAFETY.

provide the same level of security protection. THE OTHER REAS

Some of these alternative means are visible to mn... a nal soon ta

the passenger and some are not. It is the car- TEM. IS THIS A PERSON -

rier’s right to deny boarding rights to any pas- ,

senger it does not believe can be properly THE COURT: I UNDERSTAND IT, YOU

screened.” SAID ALL OF THAT. YOU WERE SAYING THE

Exhibit D RULE IS NOT VOID FOR VAGUENESS AND

(Exhibit D) WE CAN MOVE ON. I JUST WANT TO KNOW

On January 17, 2003, during oral arguments on the WHAT THE RULE IS THAT ISN'T VOID.

-government’s motion to dismiss Gilmore v. Ashcroft, et al., MR. LOBUE: IF YOU’RE ASKING ME TO

Mr. Joseph LoBue, Assistant U.S. Attorney, stated: DISCLOSE WHAT’S IN THE SECURITY DI-

“THERE IS NO RULE REQUIRING PRO- : RECTIVES, I CAN'T DO IT.

DUCTION OF ID’S FOR WHICH ONE CAN BE | THE ANT WHA

ARRESTED, THERE’S NOTHING LIKE THAT. WE’RE Begone pa Bk yell nes

PLAINTIFF WASN’T ARRESTED, HE WAS MAN WAS TOLD, “GIVE ME YOUR ID”?

ASKED FOR AN IDENTIFICATION CARD, :

THAT’S IT. WHEN HE DIDN'T PRODUCE IT MR. LOBUE: ACCORDING TO THE COM-

HE LEFT. HE WASN'T DETAINED, HE PLAINT THE GOVERNMENT MANDATED

WASN'T SEIZED; HE WAS ASKED FOR IDEN- | AIRPLANES TO REQUEST IDENTIFICATION

TIFICATION.” FROM EACH AND EVERY PASSENGER,

(Exhibit E, page 31) THAT’S WHAT HAPPENED.

When Judge Illston attempted to elicit from the CITE IM Tame ee amaies ft TRY TO

government exactly what law she was to evaluate for MAKE A DECISION WHETHER THIS COM-

constitutionality, Mr. LoBue alleged that he cannot dis- | PLAINT STATES A CLAIM. SO CAN I FOCUS

close the specific rule about ID, since it is in a secret ON THAT, THAT THE GOVERNMENT RE-

security directive: ! QUIRED THE AIRLINE TO -

THE COURT: WHAT IS THE RULE, IF AT MR. LOBUE: I THINK YOU HAVE TO AS-

ALL, CONCERNING IDENTIFICATION?

SUME THAT THE ALLEGATIONS IN THE

8

COMPLAINT ARE, IN FACT, TRUE FOR PUR-

POSES OF OUR MOTION, YES. THAT THE

GOVERNMENT REQUIRED THE AIRLINES

TO REQUEST IDENTIFICATION FROM THE

PASSENGERS.

THAT WHEN THEY REFUSE TO PRO-

VIDE IT, THAT SOUTHWEST AIRLINES RE-

FUSED PASSAGE, AND UNITED AIRLINES

INDICATED THAT THE PLAINTIFF WOULD

BE ALLOWED TO FLY IF HE SUBMITTED TO

A FURTHER SEARCH.

WE WERE PREPARED TO ASSUME ALL

OF THAT IS TRUE FOR PURPOSES OF THE

COMPLAINT, THEY ACTED AT THE INITIA-

TIVE OF THE GOVERNMENT. AT THE BE-

HEST OF THE GOVERNMENT.

THE COURT: THANK YOU.

(Exhibit E, pages 31-32)

Despite the government’s frequent attempts to con-

fuse the public, these statements demonstrate that no

published law or regulation requires air travelers to

present identification. Instead, the requirement is a classic

case of secret law. Mr. Gilmore respectfully suggests that

the lack of published law and the secrecy surrounding the

airport ID requirement exist because federal officials

recognize that such a written requirement would be

subject to a strong constitutional challenge.

II. The Absence of an Air ID Requirement Sup-

ports Reversal

The Nevada Supreme Court’s decision partially rests

on the premise that, because all passengers must show ID

to board an aircraft, Mr. Hiibel’s arrest and conviction for

9

failure to show ID are constitutional, because Mr. Hiibel’s

search was less intrusive by comparison. However, since

no legislature authorized these airport-ID practices, nor

has any court yet ruled on their constitutionality, the

essence of the argument is that actions taken by fiat

by the Executive Branch in airports can change an

unconstitutional roadside search into a constitutional one.

This argument should be rejected.

Nevada and its Supreme Court argue that the exis-

tence of an ID requirement for travelers would support the

state’s demand for ID in Terry stops. We have just shown

that such an ID requirement for travelers does not exist.

Following their reasoning, the absence of any actual law

justifying ID requirement for travelers undermines Ne-

vada’s argument that ID can be demanded during Terry

stops. With one exception, the only situation the Nevada

Supreme Court could find in which citizens are required to

show an ID has now been shown to be a figment — a public

relations maneuver unsupported by any legal authority.

The sole exception is the safety requirement that opera-

tors of motor vehicles, a potentially dangercus machine,

show a driver’s license. The rest of the situations they cite,

such as names on business cards, are voluntary transac-

tions hardly comparable to a compelled Terry stop.

Nevada Supreme Court Justice Young’s majority

opinion states:

“The requirements of NRS 171.123(3) are

also reasonable and involve a minimal invasion

of personal privacy.[28] Reasonable people do not

expect their identities — their names — to be

withheld from officers. Rather, we reveal our

names in a variety of situations every day with-

out much consideration. For instance, it is

merely polite manners to introduce ourselves

10

when meeting a new acquaintance. A person’s

name is given out on business cards, credit cards,

checks, and driver’s licenses, to name a few more

instances. In addition, everyone is required to re-

veal government issued identification to airport

officials and are subject to random searches

before proceeding to flight gates. Asking a sus-

pect to state his or her name when an officer has

an articulable suspicion is nominal in compari-

son.

59 P.3d 1201, 1206 (2002) [emphasis added].

The dissenting opinion of Nevada Supreme Court

Justice J. Agosti, with JJ. Shearing and Rose, states:

“The majority avoids the fact that knowing a

suspect’s identity does not alleviate any threat of

immediate danger by arguing that a reasonable

person cannot expect to withhold his identity

from police officers, as we reveal our names to

different people everyday. What the majority

fails to recognize, however, is that when we give

our names to new acquaintances, business asso-

clates and shop owners, we do so voluntarily, out

of friendship or to complete a transaction. With

the heightened security at airports, for example,

passengers are required to provide picture identi-

fication. But non-passengers are free to wander

that portion of the airport that is unsecured

without showing an ID. Purchasing an airline

ticket is a business transaction, and the airlines

may condition the sale on knowing who the pur-

chaser is. In contrast, being forced to identify one-

self to a police officer or else face arrest is

government coercion — precisely the type of gov-

ernmental intrusion that the Fourth Amendment

was designed to prevent. Furthermore, it is not

necessary to have one’s name on a credit card or

11

checkbook in order to effect a purchase. A dedi-

cated libertarian, for example, might deliberately

eschew financial institutions, credit cards and

checkbooks, engaging solely in cash transactions,

in order to jealously protect his individual rights,

especially his right to be anonymous, to be left

alone, to wander freely.”

59 P-3d 1201, 1209 (2002) [emphasis added].’

Respondent’s petition opposing certiorari to the U.S.

Supreme Court, page 7, states:

“ ..In order to function in our society it is nec-

essary that a person provide their name under a

variety of governmental imposed requirements. A

person can not obtain a job without first provid-

ing identification to their potential employer.

This is required because the employer needs to

complete paperwork required by the state and

federal government as it relates to wage with-

holding and benefits. Lending institutions gov-

erned by governmental rules and regulations

require a person to provide identification before a

loan can be approved. Individuals can not attend

schools, travel the airlines or obtain a credit card

without revealing their identification. In addi-

tion, individuals who are stopped for traffic viola-

tions provide identification to the officer. These

* There are two errors in this passage. The first is that passengers

are required to show ID. The second is that airlines freely make a

business decision to require identification of passengers, independent of

government coercion. The government admits that its own secret

directives require airlines to “request” identification from every

traveler, or require them to apply some unspecified “alternative security

measures” if the passenger does not comply.

12

are just some examples that illustrate how per-

vasive the requirement to provide identification

has become in our society.”

[emphasis added]

The Nevada Supreme Court and Respondent are in

error. Individuals are free to travel by air without reveal-

ing their identification. The lack of such a requirement

undercuts the argument that individuals standing by a

roadside can be reasonably required to show identification

or be arrested.

+

CONCLUSION

The Nevada Supreme Court supported its decision

with a faulty premise. It assumed that the pervasiveness

of ID demands in airports meant that the practice must be

lawful and constitutional. Instead, the absence of any

law or regulation requiring air travelers to show identifi-

cation suggests that the practice is neither lawful nor

constitutional. Unpublished airport identification prac-

tices, operating as secret law, cannot support the constitu-

tionality of the Nevada law that requires identification

during Terry stops.

Respectfully submitted,

JAMES P. HARRISON

LAW OFFICE OF JAMES P. HARRISON

980 9th Street, 16th Floor

Sacramento, CA 95814

(916) 492-9778

App. 1

EXHIBIT A

Associate Administrator

for Civil Aviation Security

[LOGO] 800 Independence Ave., SW.

U.S. Department Washington, DC 20591

of Transportation

Federal Aviation

Administration

APR 19 1996

Mr. Robert Ellis Smith

Publisher, Privacy Journal

P.O. Box 28577

Providence, RI 02908

Dear Mr. Smith:

Thank you for your April 1 letter concerning the require-

ment to request a valid form of identification from com-

mercial airline ticket holders. Since your concerns are

identical to those in your previous two letters on this topic,

I will reiterate the Federal Aviation Administration (FAA)

position.

The FAA issued a Security Directive to be put into effect

at airports throughout the country in response to recent

intelligence indicating an elevated domestic threat situa-

tion. It is a countermeasure listed within this Security

Directive that mandated that airlines request a valid form

of identification from airline ticket holders. While «an

airline is required to request identification, the actual

presentation of identification by the passenger is not

absolutely required, and there is currently no prohibition

against allowing someone on an aircraft without such

identification. However, the absence of identification may

App. 2

result in the use of alternative measures that provide the

same level of security protection.

Security countermeasures issued by the FAA in a Security

Directive establish security minimums for adoption by

airlines and airports. Airlines and airports may exceed

those minimum standards by implementing more strin-

gent security requirements. Where airlines implement

additional or more stringent measures, passengers may

sometimes experience differences in procedures as they

undergo processing. Refusal to allow a passenger without

a photo identification to board the aircraft is an example of

such differences, and is the policy of an individual airline;

this is not an FAA security requirement.

As always, the highest priority of the FAA is the safety

and security of the traveling public. Your concerns are

duly noted.

Sincerely,

/s/ Cathal L. Flynn

Cathal L. Flynn

Associate Administrator for

Civil Aviation Security

+?

App. 3

EXHIBIT B

Associate Administrator

for Civil Aviation Security

[LOGO] 800 Independence Ave., SW.

U.S. Department Washington, DC 20591

of Transportation

Federal Aviation

Administration

MAY 20, 1997

Mr. Samuel R. Weiler

4902 Forbes Avenue

Pittsburgh, PA 15213

Dear Mr. Weiler:

This is in response to your October 23, 1996, letter, which

has been remanded to the Office of the Associate Adminis-

trator for Civil Aviation Security for reconsideration. We

apologize for the delay in responding to your request. On

August 5, 1996, you requested a broad range of documents

related to the requirement that airlines request a valid

form of identification from commercial airline ticket

holders. On January 10, Mr. Kellerman called you to

clarify the scope of your request. During this conversation

you reiterated the substance of your correspondence.

On July 10, 1989, the Federal Register published an

amendment to Title 14 of the Code of Federal Regulations,

Part 108 (14 CFR Part 108), that provided for the issuance

of security directives and information circulars as a means

of disseminating information concerning threats against

civil aviation. This amendment was designated 14 CFR

Part 108.18.

App. 4

In response to intelligence indicating a threat of terrorism,

the Federal Aviation Administration (FAA) has required

airlines to request a valid form of identification from

airline ticket holders. While an airline is required to

request the identification; its actual presentation by the

passenger is not mandatory, and there is currently no

prohibition against allowing someone on an aircraft

without such identification. The absence of identification,

however, requires the airline to use alternative measures

to provide the same level of security protection.

The security directive (SD) in force at the time of your

flight would be the governing legal document sent to the

airlines relative to the question of ID checks. When neces-

sary, a policy guidance letter may be sent by FAA in order

to clarify the Government’s intent or to address an air-

line’s interpretation of security measures in an SD; meas-

ures such as ID checks. Neither of these documents are

disseminated to the public, nor are they releasable.

Referring to your last letter: 1) There are no relevant

segregable portions of any security document FAA has

sent to an airline that would not compromise security. 2)

All documents covered by your original request were

addressed in the September 24, 1996, denial in terms of

FAA’s legal response. 3) Documents produced by FAA have

not, as asserted, been widely released.

These documents fall within Exemption 3 of the FOIA (5

U.S.C. 552(b)(3)), which permits the w‘thholding of records

specifically exempted from disclosure by another statute.

The applicable statute in this instance is 49 U.S.C. Section

40119(b), which states, in part, that the Administrator

may prescribe regulations he considers necessary to

prohibit disclosure of any information obtained or developed

App. 5

in the conduct of security or research and development

activities if he concludes that disclosure would be detrimen-

tal to the safety of persons traveling in air transportation.

The safety regulation issued under 49 U.S.C. Section

40119(b) can be found in 14 CFR 191.7(b) which exempts

from disclosure security directives, information circulars,

and any comments, instructions, or implementing guid-

ance pertaining thereto. Accordingly, it has been deter-

mined that the disclosure of this SD or other documents

related to this issue would be detrimental to the safety of

persons traveling in air transportation. Therefore, your

request for release of documents is denied.

The undersigned is responsible for this denial. You may

request reconsideration of this determination by writing to:

Associate Administrator for Administration ; .

FAA Headquarters

800 Independence Avenue, SW.

Washington, DC 20591

Your request for reconsideration must be made in writing

within thirty (30) calendar days from the date of receipt of

this letter and must include all information and argu-

ments relied upon. Your letter must state that it is an

appeal of the above-described denial of a request made

under the FOIA. The envelope containing the appeal must

be marked “FOIA.”

Sincerely,

/s/ Cathal L. Flynn

Cathal L. Flynn

Associate Administrator for

Civil Aviation Security

App. 6

EXHIBIT C

SOUTHWEST AIRLINES CO.

James F. Parker

Vice President

General Counsel

P.O. Box 36611

Dallas, Texas 75235-1611

214-792-4138

214-792-6660 (Facsimile)

June 14, 2001

[LOGO]

Dr. Richard H. Weil

2057 Fairmount Avenue

St. Paul, MN 55105

Dear Dr. Weil:

I am in receipt of your letter dated May 21, 2001,

addressed to Herb Kelleher, Chief Executive Officer,

Southwest Airlines Co. Even though I will not be assum-

ing Herb’s title as Chief Executive Officer until June 19,

2001, he has asked me to respond to you just to see if I’m

ready!

First and foremost, I want to thank you for your

complimentary remarks about Southwest Airlines. The

mission of Southwest Airlines includes dedication to the

highest quality of Customer Service delivered with a sense

of warmth, friendliness, individual pride, and spirit, and I

am hopeful and confident that we can deliver on this

mission.

Unfortunately, I am unable to discuss with you the

FAA-mandated requirement that, under certain circum-

stances, Southwest Airlines and all other domestic air

carriers request identification from their Customers. This

eee

LL LLL sss ee

App. 7

inability does not stem from any unwillingness on the part

of Southwest Airlines to challenge the FAA (as we have

done on countless occasions over our 30 year history), but

instead derives from an FAA-imposed mandate which

effectively prevents Southwest Airlines from disclosing

sensitive security information to the general public.

Although I have not provided you with the response

that you were seeking, I am afraid it is the only response

possible under the circumstances. Therefore, we must

respectfully decline to join you in opposing the require-

ment that Customers present identification. Thanks in

advance for your understanding.

Sincerely

/s/ Jim Parker

James F. Parker

cc: Mr. Herbert D. Kelleher

App. 8

EXHIBIT D

[LOGO] THE SECRETARY OF TRANSPORTATION

WASHINGTON, D.C. 20590

December 27, 2001

Dr. Richard Weil

2057 Fairmount Avenue

St. Paul, MN 55105

Dear Dr. Weil:

Congresswoman Betty McCollum has asked me to

respond to your letter concerning requirements to show

photo identification before boarding an aircraft.

Title 49, United States Code (U.S.C.), requires air

carriers to screen all passengers and property to be carried

on board commercial passenger aircraft and to refuse

transportation to persons who refuse such screening. Part

108 of Title 14 of the Code of Federal Regulations (14

CFR) states that airlines must have a security program

that provides for the safety of persons and property travel-

ing in air transportation. The Federal Aviation Admini-

stration (FAA) approves that air carrier standard security

program. Airlines may implement additional or more

stringent security measures that can result in differences

in procedures. The security programs are protected from

disclosure by another Federal statute (5 U.S.C. Section

552(bX3)).

The FAA does require the air carriers to request valid

forms of identification from their ticket holders. However,

should a passenger not present acceptable identification

because they do not have a photo identification card or

refuse to show such identification, an air carrier must

apply alternative measures of their choosing that provide

———_——. ee

:

4

;

TTT

App. 9

the same level of security protection. Some of these alter-

native means are visible to the passenger and some are

not. It is the carrier’s right to deny boarding rights to any

passenger it does not believe can be properly screened.

Inspection of identification media is just one means

the airlines use to fulfill security requirements, because

photo identification cards, as you point out, can be illegally

falsified. Although it may slow down some ticket and

check-in lines, asking for identification does provide some

deterrence value. Checking the identification card necessi-

tates the air carrier employee and the passenger make eye

contact and does require the air carrier employee to match

the face with the identification. Anything that adds

additional deterrence and enhances security is valuable,

especially in light of the September 11 events.

The requirement that a passenger’s middle initial be

on every ticket is not an FAA requirement; it is an airline

requirement. Perhaps the air carriers can provide an

explanation of this requirement.

The requirements for photo identification are not tied

to the FAA’s computer-assisted passenger prescreening

system (CAPPS). CAPPS selection criteria are based on

parameters developed within the counterterrorism com-

munity and reviewed by the Department of Justice to

ensure nondiscriminatory methods of passenger selection.

In addition, the FAA has no plans to fingerprint every

traveler.

In response to the horrific events of September 11, not

only do we believe it is imprudent to withdraw the re-

quirement for identification checks at this time, we are

requiring even more security measures for U.S. airports

and air carriers and for foreign air carriers with flights to

App. 10

the United States. Despite the inconvenience of these

measures, the public understands and, in most cases,

seems to welcome the extra security measures. We con-

tinue to enhance security requirements for airports and

air carriers across the country and are proud of the un-

precedented level of cooperation attained among the

Federal Government, the public, airport operators, and air

carriers to implement those procedures quickly and

effectively.

I appreciate your interest in aviation security.

Sincerely yours,

/s/ Norman Y. Mineta

Norman Y. Mineta

cc: Congresswoman Betty McCollum

App. 11

EXHIBIT E

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

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

JOHN GILMORE, )

PLAINTIFF, . NO. C 02-3444 SI

VS. PAGES 1 - 40

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

App. 12

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

2 nto an olny Rell

App. 13

[3] FRIDAY, JANUARY 17, 2003 9:00 A.M.

(PROCEEDINGS HELD IN OPEN COURT:)

THE CLERK: CIVIL 02-3444, JOHN GILMORE

VERSUS ASHCROFT.

MR. SIMPICH:

HONOR.

GOOD MORNING, YOUR

20 MASSACHUSETTS AVENUE N.W., ROOM 7300

WASHINGTON, DC 20530

BY: JOSEPH W. LOBUE, ESQ.

ASSISTANT U.S. ATTORNEY

WILLIAM SIMPICH AND JAMES HARRISON

APPEARING FOR THE PLAINTIFF.

THE COURT: GOOD MORNING.

MR. LOBUE: JOSEPH W. LOBUE, DEPART-

REPORTED BY: JAMES YEOMANS, CSR, RPR

MENT OF JUSTICE, FOR THE FEDERAL GOVERN-

OFFICIAL REPORTER, USDC

COMPUTERIZED TRANSCRIPTION MENT.

a Serer MS. BARRETT: GOOD MORNING, YOUR

[2] FOR DEFENDANT PIPER RUDNICK LLP HONOR.

SOUTHWEST AIRLINES: 1999 AVENUE OF THE STARS

FOURTH FLOOR JANE BARRETT FOR SOUTHWEST AIRLINES.

LOS ANGELES, CALIFORNIA

90067

BY: JANE H. BARRETT, ESQ.

MS. CARROLL: GOOD MORNING, YOUR

HONOR.

KATHRYN CARROLL FOR UNITED AIRLINES.

FOR DEFENDANT CODDINGTON, HICKS &

UNITED AIRLINES: DANFORTH

555 TWIN DOLPHIN DRIVE, THE COURT: GOOD MORNING.

SUITE 300 FIRST, WITH RESPECT TO UNITED AIRLINES, DO

REDWOOD CITY, CALIFORNIA

94065

BY: KATHRYN M. CARROLL, é

ESQ. |

THE REMAINING PARTIES AGREE THAT UNITED

CAN BE SEVERED FROM THIS LITIGATION?

MR. SIMPICH: DUE TO THE BANKRUPTCY

STATUS, I ASSUME?

THE COURT: YEAH.

App. 14

MR. SIMPICH: IF IT HASN'T CHANGED, I

AGREE, YOUR HONOR, YES.

MR. LOBUE: GOVERNMENT HAS NO OB-

JECTION. |

MS. BARRETT: SOUTHWEST HAS NO OB-

JECTION.

* * *

[31] THERE IS NO RULE REQUIRING PRODUC-

TION OF ID’S FOR WHICH ONE CAN BE ARRESTED,

THERE’S NOTHING LIKE THAT. PLAINTIFF WASN’T

ARRESTED, HE WAS ASKED FOR AN IDENTIFICA-

TION CARD, THAT'S IT.

WHEN HE DIDNT PRODUCE IT HE LEFT. HE

WASN’T DETAINED, HE WASN’T SEIZED, HE WAS

ASKED FOR IDENTIFICATION.

THE COURT: COULD YOU JUST SAY THAT

ONCE AGAIN, THE RULE IS, DON’T CARRY BOMBS

AND GUNS ONTO AIRPLANES?

MR. LOBUE: DON’T ATTEMPT TO HIJACK

AIRPLANES.

THE COURT: THAT’S THE RULE?

MR. LOBUE: THAT’S THE RULE.

THE COURT: WHAT IS THE RULE, IF AT

ALL, CONCERNING IDENTIFICATION?

MR. LOBUE: THE IDENTIFICATION CHECK,

EVERY PASSENGER IS REQUESTED TO PRODUCE

IDENTIFICATION. AS I'VE INDICATED, THE STATUTE

PROVIDES ONE OF THE PURPOSES TO CHECK

App. 15

WHETHER THAT PERSON IS AMONGST THOSE

KNOWN TO POSE A RISK TO AVIATION SAFETY.

THE OTHER REASON IT’S USED FOR PUR-

POSES OF THE PRESCREENING SYSTEM, IS THIS A

PERSON —

THE COURT: I UNDERSTAND IT, YOU SAID

ALL OF THAT. YOU WERE SAYING THE RULE IS NOT

VOID FOR VAGUENESS AND WE CAN MOVE ON. I

JUST WANT TO KNOW WHAT THE RULE IS THAT

ISN’T VOID.

MR. LOBUE: IF YOU’RE ASKING ME TO

DISCLOSE WHAT'S IN THE SECURITY DIRECTIVES, I

CAN'T DO IT.

[32] THE COURT: I WANT TO KNOW WHAT

WE’RE TALKING ABOUT IN THIS CASE. THIS MAN

WAS TOLD, “GIVE ME YOUR ID?”

MR. LOBUE: ACCORDING TO THE COM-

PLAINT THE GOVERNMENT MANDATED AIRPLANES

TO REQUEST IDENTIFICATION FROM EACH AND

EVERY PASSENGER, THAT’S WHAT HAPPENED.

THE COURT: I NEED TO KNOW WHAT CITE

I’M TALKING ABOUT WHEN I TRY TO MAKE A DECI-

SION WHETHER THIS COMPLAINT STATES A CLAIM.

SO CAN I FOCUS ON THAT, THAT THE GOVERNMENT

REQUIRED THE AIRLINE TO —

MR. LOBUE: I THINK YOU HAVE TO AS-

SUME THAT THE ALLEGATIONS IN THE COMPLAINT

ARE, IN FACT, TRUE FOR PURPOSES OF OUR MO-

TION, YES. THAT THE GOVERNMENT REQUIRED

App. 16

THE AIRLINES TO REQUEST IDENTIFICATION FROM

THE PASSENGERS.

THAT WHEN THEY REFUSE TO PROVIDE IT,

THAT SOUTHWEST AIRLINES REFUSED PASSAGE,

AND UNITED AIRLINES INDICATED THAT THE

PLAINTIFF WOULD BE ALLOWED TO FLY IF HE

SUBMITTED TO A FURTHER SEARCH.

WE WERE PREPARED TO ASSUME ALL OF THAT

IS TRUE FOR PURPOSES OF THE COMPLAINT, THEY

ACTED AT THE INITIATIVE OF THE GOVERNMENT.

AT THE BEHEST OF THE GOVERNMENT.

THE COURT: THANK YOU.

MR. LOBUE: ON THE RIGHT TO TRAVEL

ISSUE, TURNING TO THAT, IT’S NOT AN ABSOLUTE

RIGHT, IT’S A RIGHT NOT TO BE - TO BE UNINHIBI-

TED BY RULES WHICH UNREASONABLY BURDEN

OR RESTRICT THE RIGHT TO FREE MOVEMENT.

[33] YOU'RE NOT ENTITLED TO BE COMPLETELY

FREE FROM GOVERNMENT REGULATION BECAUSE

YOU'RE IN TRAVEL STATUS. THE NINTH CIRCUIT IN

MILLER VERSUS REED MAKE CLEAR THAT THERE IS

NO RIGHT TO THE MOST CONVENIENT FORM OF

TRAVEL. NOBODY HAS A

* * *

[40] MARTINELLI, CAREY, ON THAT LINE.

IN REGARDS TO THE RIGHT TO TRAVEL ISSUE

WHICH COUNSEL ARGUES THEY SHOULD NOT BE

LIABLE FOR, AGAIN, THIS GOES RIGHT BACK TO

THE SECRET LAW ISSUE, AS TO WHETHER OR NOT

THEY HAVE THE RIGHT TO DEMAND ID OR NOT. WE

— OF ow

App. 17

DO NOT KNOW WHAT THAT LAW IS BECAUSE IT’S

NOT BEEN PUBLISHED. THE GOVERNMENT HAS

STATED, AS WE MENTIONED IN OUR ADDENDUM

THAT THE AIRLINES ARE NOT MANDATED TO DE-

MAND, MERELY REQUEST IT.

THE COURT: ALL RIGHT. THANK YOU.

(COURT ADJOURNED:)

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 TRAN-

SCRIPT, PAGES NUMBERED 1 THROUGH 40, INCLU-

SIVE, 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.

/s/ James Yeomans FEBRUARY 17, 2003

JAMES YEOMANS, RPR, CSR