Richard Paez

“ Like the plaintiff in Miller, Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him. Moreover, the identification policy's "burden" is not unreasonable. ”

“ To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. It follows that airport screening searches are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft. Id. at 910-11 (footnotes omitted) . Gilmore was free to reject either option under the identification policy, and leave the airport. In fact, Gilmore did just that. ”

“ The request for identification, however, does not implicate the Fourth Amendment. " [A] request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." INS v. Delgado, 466 U.S. 210, 216 (1984) . Rather, " [a] n individual is seized within the meaning of the fourth amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." ”

“ In applying the void-for-vagueness doctrine to the statute, the Supreme Court stated that this doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." ”

“ The identification policy is not a direct regulation of any First Amendment expressive activity, nor does it impermissibly inhibit such activity. Gilmore's claims that Defendants violated his rights to associate anonymously and petition the government are without merit.
Conclusion [21] In sum, we conclude that Defendants did not violate Gilmore's constitutional rights by adopting and implementing the airline identification policy. Therefore, his claims fail on the merits and we deny his petition for review. ”

“ The district court, however, did not assess whether it had jurisdiction to hear Gilmore's other claims. Instead, it reached the merits of those claims and determined that each one failed. In granting Defendants' motions, the court, noting that the identification policy had been classified as SSI, did not review any official documentation of the identification policy. Rather, for purposes of its jurisdictional ruling, the district court assumed, as Gilmore alleged, that the identification policy was a Security Directive issued by TSA. Gilmore timely appealed. ”

“ V. Right To Associate and Right To Petition the Government Finally, Gilmore argues that because the identification policy violates his right to travel, it follows that it also violates his right to petition the government and freely associate. These claims, as Gilmore argued in his appellate brief, are based on the notion that " [f] reedom to physically travel and the free exercise of First Amendment rights are inextricably intertwined." Here, this logic works to Gilmore's detriment. ”

“ In so holding, we considered several airport screening procedures, including behavioral profiling, magnetometer screening, identification check, and physical search of the passenger's person and carry-on baggage. Id. at 900. We see little difference between the search measures discussed in Davis and those that comprise the "selectee" search option of the passenger identification policy at hand. Additionally, Gilmore was free to decline both options and use a different mode of transportation. ”

“ See Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000) (" [I] ndividuals must be given a reasonable opportunity to discern whether their conduct is proscribed so they can choose whether or not to comply with the law.") .
[10] Gilmore also alleges that the Government violated his due process rights because the identification policy vests airline security personnel with unbridled discretion. Upon review of the TSA Security Directive, we hold that the Directive articulates clear standards. ”