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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0008%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 177

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0008%3A13. Public record. Not legal advice.