Right to Travel Case - for IP?]

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject: Right to Travel Case - for IP?
Date: Sun, 26 Feb 2006 18:38:59 -0800
From: Steven Hertzberg <stevenstevensteven () gmail com>
To: dave () farber net

Dave,

Here's a recent court decision regarding the right of the government to
stipulate that citizens must show ID and submit to search prior to boarding
a commercial airplane.  While there is some very interesting discussion
within the decision, of particular interest is the judge's statement that
stipulating to the commercial airline boarding process essentially grants
the gov't "a license to do what it would otherwise be
barred from doing by the Fourth Amendment."

I do not understand this decision and hope that some from IP may shed some
additional light on the matter.  Given that a US citizen's rights are
unalienable, how are we, as men, able to waive these god-given rights and
grant the gov't the ability to admittedly operate outside the bounds of the
Constitution?


Case Overview:

John Gilmore ("Gilmore") sued Southwest Airlines and the
United States Attorney General, Alberto R. Gonzales, among
other defendants,1 alleging that the enactment and enforcement of the
Government's civilian airline passenger identification
policy is unconstitutional. The identification policy
requires airline passengers to present identification to airline
personnel before boarding or be subjected to a search that is
more exacting than the routine search that passengers who
present identification encounter. Gilmore alleges that when he
refused to present identification or be subjected to a more
thorough search, he was not allowed to board his flights to
Washington, D.C. Gilmore asserts that because the Government
refuses to disclose the content of the identification policy,
it is vague and uncertain and therefore violated his right
to due process. He also alleges that when he was not allowed
to board the airplanes, Defendants violated his right to travel,
right to be free from unreasonable searches and seizures, right
to freely associate, and right to petition the government for
redress of grievances.

My favorite statements from the judge are:

(1) "We reject Gilmore's
right to travel argument because the Constitution does not
guarantee the right to travel by any particular form of transportation."

(2) "If he [Gilmore] chooses to proceed,
that choice, whether viewed as a relinquishment of
an option to leave or an election to submit to the
search, is essentially a "consent," granting the government
a license to do what it would otherwise be
barred from doing by the Fourth Amendment."

Background excerpt:

The [United Airlines] Security Chief [at SFO] told Gilmore that he did not
know the
law or government regulation that required airlines to enforce
the identification policy. Another member of United's security
force later told Gilmore that the policy was set out in government
Security Directives, which he was not permitted to
disclose. He also told Gilmore that the Security Directives
were revised frequently, as often as weekly; were transmitted
orally; and differed according to airport. The airline security
personnel could not, according to the Government, disclose to
Gilmore the Security Directive that imposed the identification
policy because the Directive was classified as "sensitive
security information" ("SSI").3 Gilmore left the airport and
has not flown since September 11, 2001 because he is unwilling
to show identification or be subjected to the "selectee"
screening process.

Excerpts from Judge's Decision:

Excerpt 1: Gilmore alleges that the identification policy violates
his constitutional right to travel because he cannot travel by
commercial airlines without presenting identification, which
is an impermissible federal condition. We reject Gilmore's
right to travel argument because the Constitution does not
guarantee the right to travel by any particular form of transportation.

Excerpt 2: Gilmore also suggests that the identification policy did
not present a meaningful choice, but rather a "Hobson's
Choice," in violation of the unconstitutional conditions doctrine.
We have held, as a matter of constitutional law, that an
airline passenger has a choice regarding searches:

[H]e may submit to a search of his person and immediate
possessions as a condition to boarding; or he
may turn around and leave. If he chooses to proceed,
that choice, whether viewed as a relinquishment of
an option to leave or an election to submit to the
search, is essentially a "consent," granting the government
a license to do what it would otherwise be
barred from doing by the Fourth Amendment.

Davis, 482 F.2d at 913. Gilmore had a meaningful choice. He
could have presented identification, submitted to a search, or
left the airport. That he chose the latter does not detract from
the fact that he could have boarded the airplane had he chosen
one of the other two options. Thus, we reject Gilmore's
Fourth Amendment arguments.


For Reference:


Overview of case:
http://www.ioerror.us/2006/01/30/you-have-no-right-to-travel/

Decision can be found at:
http://caselaw.lp.findlaw.com/data2/circs/9th/0415736p.pdf

Gilmore's Website: http://www.papersplease.org/gilmore/index.html


________________________________
Steven Hertzberg
http://www.hertzberg.org


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