State of New Mexico v. Phillip Mocek

“Freedom Flyer” arrested at TSA checkpoint

“NOT GUILTY” VERDICT BY JURY ON ALL CRIMINAL CHARGES

Federal civil rights lawsuit pending against police and TSA staff

Frequently Asked Questions (FAQ)

What is this case about?

Phil Mocek

Phil Mocek (click photo for hi-res)

Phil Mocek (pronounced “MOE-seck” or “MOE-sick”) was arrested by Albuquerque aviation police at a TSA checkpoint at the Albuquerque International Sunport on November 15, 2009. He had a valid ticket on Southwest Airlines (”You are now free to move about the country”), and was attempting to get to his flight. Like the “Freedom Riders” of the 1960s on interstate buses, Mr. Mocek sought to exercise his Federally and Constitutionally-guaranteed right to travel, but was arrested by local police for alleged violations of state and local laws and ordinances. Mr. Mocek was acquitted by a jury on all counts, and is pursuing a Federal civil rights lawsuit against the City of Albuquerque, the Albuquerque Aviation Police Department, and the individual Albuquerque police and TSA staff for violations of his civil rights.

Why was Mr. Mocek arrested?

Even after Mr. Mocek’s trial and acquittal, we still don’t know. The first statement by the police (on their own live audio recording) was that he was being arrested, “for being stupid”. The real motivations of the police for arresting Mr. Mocek remain a potential issue at trial. Based on the available evidence, we are concerned that Mr. Mocek was arrested because he declined to show ID credentials, declined to answer questions about his identity, and/or because he attempted to photograph and record his interactions with the TSA and police – all of which were activities protected by the First Amendment and other laws.

What were the charges against Mr. Mocek?

He was charged with criminal trespass (Albuquerque Code of Ordinances § 12-2-3), resisting, obstructing or refusing to obey a lawful order of an officer (§ 12-2-19), concealing his identity with intent to obstruct, intimidate, hinder or interrupt (§ 12-2-16), and disorderly conduct (NMSA § 30-2-1). [Note: It appears that direct links to sections of the Albuquerque Code of Ordinances will work only after you first click on the Albuquerque Code of Ordinances link and then on either "frames" or "no frames", to set the required cookies in your Web browser.]  The maximum penalties, if he had been convicted, could have been up to 6 months in jail for disorderly conduct (a “petty misdemeanor” under New Mexico state law), and 90 days in jail for each of the ordinance violations, for a total maximum sentence of 15 months in jail.

Was Mr. Mocek guilty of any of these crimes?

No.  The jury acquitted Mr. Mocek without his having to testify or present any evidence in his defense.  The prosecution failed to meet their burden of proving that Mr. Mocek had committed any crime.

There is no evidence of any of these crimes in the police audio and Mr. Mocek’s video. Mr. Mocek was calm, polite, and nonviolent. There is no evidence that he was disorderly, made any attempt to “conceal” his identity, or had any obstructive intent. As a ticketed passenger, his right of transit through the airport and the TSA checkpoint and by the airline as a common carrier was guaranteed by Federal law, the First Amendment, and Article 12 of the International Covenant on Civil and Political Rights. He was not trespassing, and any police order to leave the airport would have been unlawful.

(If something like this should happen to you, be aware that police and custodians of public records aren’t always aware of what recordings they may have, of the technical features of their recording and archiving systems, or of the possibility that audio and video archiving systems may generate logs of what recordings are accessed or deleted, when, and by whom.  As this incident (chronology) in Seattle showed, digital recordings aren’t necessarily “deleted” automatically, and may not be overwritten until long after police assume that they have been deleted. If you are requesting records of a police encounter, be sure to include a request for any system logs of access, viewing, and/or deletion of the recordings, and be extremely skeptical of any claims that digital recordings are actually “erased” on a fixed schedule, rather than merely flagged as potentially available to be overwritten.)

Why is this case important?

So far as we know, this was the first time someone in the USA was arrested or charged with a crime for attempting to exercise their right to travel by air without showing ID or answering questions about themselves or their trip, or for photography or audio or video recording at a TSA checkpoint.

Is there any law that requires you to show ID credentials to fly, or to the police?

No. In Gilmore v. Gonzales (decided at 435 F.3d 1125), a case involving the same airline, lawyers for the TSA swore to the 9th Circuit US Court of Appeals that no Federal law or regulation requires airline passengers to show any evidence of their ID in order to fly.

Is there any law that requires you to answer questions from the TSA or police?

No. You have the right to remain silent. Mr. Mocek explicitly invoked this right.

Is there any law or regulation that prohibits or restricts photography or audio or video recording at TSA checkpoints or of police?

No. Prior to his flight out of ABQ, Mr. Mocek received written confirmation from Albuquerque TSA staff that, “There aren’t any state or city laws/ordinances that prohibit photography in the public areas of the airport.”

Are TSA staff or law enforcement officers alllowed to search or seize photogrpahs or audio or video recordings?

Generally not, if you possess these materials in connection with an intent to distribute them publicly, including online distribution such as posting them on Facebook, Youtube, etc.  The Federal “Privacy Protection Act of 1980″ (42 USC 2000aa), protects these materials from search or seizure. There are some exceptions to this law, including a limited exception for searches and seizures by customs inspectors (not the TSA) at international ports of entry (not domestic airports). But there is no general airport or TSA exception to this law.

Do you have a right to travel by air?

Yes. The “public right of freedom of transit” by air is guaranteed by the Airline Deregulation Act of 1978, and the TSA is required by Federal law (49 USC § 40101) to consider this right when it issues regulations. Airlines are common carriers. Mr. Mocek’s attempted trip was an exercise of “the right … peaceably to assemble,” which is guaranteed by the First Amendment. Freedom of movement is also guaranteed by Article 12 of the International Covenant on Civil and Political Rights, a human rights treaty signed and ratified by the US.

Can local police lawfully interfere with your right to travel, by air or otherwise?

No. The TSA checkpoint is a Federal facility, the airport and airline are Federally certified, and the right of travel by air is guaranteed by Federal law. Any interference with the passage of ticketed passengers, under color of state or local authority, would violate 42 USC § 1983. Interference by local police with air travel is forbidden by the same laws that forbade Southern sheriffs from interfering with interstate bus travel by Freedom Riders. In this sense, we see Mr. Mocek as a modern-day “Freedom Flyer.”

What happened in the trial?

Phil Mocek was found “NOT GUILTY” on all counts by a jury on Friday, January 21, 2011, at the conclusion of a two-day trial in Bernalillo County Metropolitan Court in Albuquerque, NM.

Jury trial in State of New Mexico v. Phillip Mocek (Criminal Case 2573709) began on Thursday, January 20, 2011, before Judge Kevin L. Fitzwater.  A jury was selected and heard opening arguments and the first prosecution witness on Thursday.  Testimony and arguments were completed and the jury returned its verdict of “NOT GUILTY” on all counts on Friday, January 21, 2011, after about an hour of deliberations. [Complete audio archive and photos of the trial (except jury selection)]

Did Mr. Mocek testify or present any evidence in his defense?

No. The jury found that the prosecution failed to meet its burden of proof, based solely on the evidence introduced by the prosecution (including the video from Mr. Mocek’s camera).

Mr. Mocek did not testify, and the defense rested without calling any witnesses or presenting any evidence. The jury found that even without rebuttal, the TSA and Albuquerque police had failed to satisfy their burden of proving any of the four charges: concealing his identity, refusing to obey a lawful order (it was never entirely clear whether this was supposed to have been an order to turn off his camera, an order to leave the airport despite having a valid ticket, or an order to show ID, none of which would have been lawful orders), trespassing, and disorderly conduct.

The best evidence in the case was the video from Mr. Mocek’s digital camera that both the TSA and the police had tried to stop Mr. Mocek from filming, and which ended when they seized his camera out of his hands and shut it off. In her closing argument, defense counsel Molly Schmidt-Nowara argued that the police and TSA witnesses were not credible, that their testimony was contradicted by the video and by common sense, that what they really objected to was having Mr. Mocek legally take pictures, and that any disorderly conduct was on the part of the police and TSA.

The verdict of “NOT GUILY” on all counts shows that the jurors saw through the police and TSA lies.

What did the TSA and police witnesses testify about the authority of TSA “officers,” flying without ID, and using cameras in airports?

Uncontested TSA and police testimony at the trial established, among other things, three important points:

  1. Despite calling themselves “officers”, TSA checkpoint staff are not law enforcement officers and have no police powers — and both TSA and police are fully aware of this. When the TSA calls for the police, they are just like any other civilians who call the police, and the police have no obligation to do what they ask. Police should not act, and have no right to act, in such a case, unless the police have a reasonable basis for believing that a crime has actually been committed or is being committed.
  2. You have the right, recognized by the TSA, to fly without showing ID. “It happens all the time. We have a procedure for that,” according to the lead TSA “Travel Document Checker” at the Albuquerque airport. Signs and announcements in airports saying that all passengers must present ID are false.
  3. You have the right, recognized by the TSA, to photograph or film anywhere in publicly accessible areas of airports including TSA checkpoints, as long as you don’t violate any local laws, photograph the images on the screening monitors, interfere with the screening process, or slow down the line. (Whether those limitations to your First Amendment rights claimed by the TSA are legal or Constitutional was not decided in this case, since Mr. Mocek wasn’t violating any local law, filming the images on the screening monitors, interfering with the screening process, or slowing down the line.) Signs or statements that photography is prohibited at Federal checkpoints are, in general, false.

Annoying the TSA is not a crime. Photography is not a crime. You have the right to fly without ID, and to photograph, film, and record what happens. Your best defense is your own camera and microphone. Ordinary jurors know, and were prepared to recognize with their verdict in this case, that the TSA and police lie about what they are doing and why.

What does the Identity Project hope will happen as a result of this “NOT GUILTY” verdict?

We hope that Mr. Mocek’s acquittal will encourage and empower others to question the unlawful demands of the TSA — including their demands that we waive our right to remain silent, provide them with evidence as to our identity, and submit to virtual strip-search machines or groping — and to photograph and record our interactions with the TSA’s cop-wannabes and rent-a-cops and the local law enforcement officers who provide their muscle.

(See also our FAQ: What you need to know about your rights at the airport, and the information about dealing with police encounters from FlexYourRights.org.)

We also hope that this verdict will teach police not to blindly back up the TSA when the TSA calls upon law enforcement officers to “deal with” travelers to whose actions the TSA has, for whatever reason, taken a dislike. This verdict shows that jurors can see through their lies when they make up stories and false accusations against travelers.

What can I do to help now that Mr. Mocek has been acquitted?

Contribute to Mr. Mocek’s defense fund. Mr. Mocek spent $34,000 to hire private lawyers and additional costs and lost wages to return repeatedly to court hearings in Albuquerque from his home in Seattle.  Contributions can be made online via Paypal. Note that the Paypal donation receipt will read, “Canabis Defense Coalition”, as this is the group that volunteered to collect donations for Phil’s defense. But all funds donated will go to Phil’s defense.

Contributions by cash, check, or money order can be sent directly to Mr. Mocek’s lawyers. Checks must be payable to “Freedman Boyd et al.” You can indicate “Phil Mocek defense fund” in the memo field.  Send to:

Phil Mocek legal defense
Freedman Boyd Hollander Goldberg Ives & Duncan PA
20 FIRST PLAZA CTR NW STE 700
ALBUQUERQUE NM 87102-5802

If you would like your contribution to Mr. Mocek’s defense fund to be tax deductible (or if your employer will match your contributions to tax-exempt charities), you can send it to CDC, a Washington-state 501(c)(3) IRS-recognized public charity, earmarked for Mr. Mocek’s defense fund:

Phil Mocek legal defense
Cannabis Defense Coalition (CDC)
PO BOX 45622
SEATTLE, WA 98145

Spread the word about this case and what it means. Organize a gathering to discuss the issue. Stand up for your own rights, and “just say no” to demands for ID. See our website or contact us for more on how to get involved.

What will happen next?

Mr. Mocek has filed a claim against the City of Albuquerque and the Albuquerque Aviation Police Department for violations of his civil rights, and is awaiting their response.

What is the Identity Project?

The Identity Project (PapersPlease.org) provides advice, assistance, publicity, and legal support to those who find their rights infringed, or their legitimate activities curtailed, by demands for ID, and builds public awareness about the effects of ID requirements on fundamental rights. We are part of the First Amendment Project, a 501(c)(3) nonprofit organization based in Oakland, CA.

What is the role of the Identity Project in this case?

We went to Albuquerque to observe and report on Mr. Mocek’s criminal trial (since the trial was not recorded or transcribed by the court, our recordings are the only complete record of the trial), to help explain the issues it raises, and to support Mr. Mocek’s rights (1) to travel without showing ID credentials or answering questions from the TSA or police and (2) to photograph and record his interactions with TSA and police officers.  Contact us for more information or if you’d like to arrange for an interview or speaker from the Identity Project. Nothing we say should be taken as legal advice or as representing Mr. Mocek or his criminal defense attorneys (Nancy Hollander and Molly Schmidt-Nowara).  Mr. Mocek is represented in his Federal civil rights lawsuit by attorneys including James Wheaton, Lowell Chow, and William Simpich of the First Amendment Project, our parent organization, in addition to local counsel Mary Louise Boelcke in Albuquerque.

How can I get more information about this case?

How can I contact Mr. Mocek or find his own statements about this case?

What have Albuquerque and other news media and blogs said about this case?