A three-judge panel of the 10th Circuit US Court of Appeals heard oral arguments in Denver yesterday on the lawsuit brought by “Freedom Flyer” Phil Mocek against the TSA checkpoint staff and Albuquerque police responsible for falsely arresting him and trying to delete his audio and video recordings in retaliation for his trying to exercise his Constitutional rights to travel by air without carrying government-issued ID documents, and to film and record the TSA’s “ID verification” process for flyers without ID.

Mr. Mocek was able to recover his audio and video recording after the police returned his camera when they let him out of jail. On the basis of that recording, Mr. Mocek was acquitted by an Albuquerque jury of all of the trumped-up criminal charges.

After his acquittal, Mr. Mocek filed a Federal civil rights lawsuit against the TSA, the Albuquerque police department, and the individual TSA employees and ABQ airport police responsible for violating his rights.

Mr. Mocek’s lawsuit was dismissed, before it could go to trial, by US District Court Judge James Browning in Albuquerque, who ruled that Mr. Mocek had “failed to state a claim on which relief could be granted.”

The issue in rulings like this is not whether the plaintiff (Mr. Mocek) has proven his case, or what the judge believes actually happened. Those are issues for a jury to decide, after hearing the evidence presented in a trial. A motion to dismiss can be granted only if — even assuming that everything the plaintiff says in the complaint can be proven to be true — those facts would not be sufficient to constitute a basis for a finding that the plaintiff’s legal rights have been violated.

That’s what is now being considered by three judges of the 10th Circuit Court of Appeals (Presiding Judge Timothy Tymkovich and Judges  Neil Gorsuch and Jerome Holmes), and that was argued before them on Tuesday morning in Denver by lawyers representing Mr. Mocek, the TSA and its employees, and the city of Albuquerque (on behalf of the Albuquerque police department, its airport division, and its employees).

[Official audio recording by the court in downlaodable podcast and streaming formats.]

Clearly there are problems with the Albuquerque Police Department which might call for oversight or corrective action by the Federal courts. Five cases, all of them appeals from decisions of the US District Court for New Mexico, were argued on Tuesday before the 10th Circuit panel that heard argument in Mocek v. Albuquerque et al. Of those five cases, three were lawsuits against the Albuquerque police, under the same Federal civil rights statute as in Mr. Mocek’s case, for a variety of violations of individuals’ Constitutional rights by the police department and its officers.

In many respects, all of these appeals concerned the limits of legal liability, and the corresponding limits of impunity, for actions by government agencies and agents that violate individuals’ rights.

Most people would assume that if police officers, and Federal employees charged with body-searching members of the traveling public, falsely arrest (or have arrested) an innocent person in retaliation against his exercise of rights protected by the US Constitution and their own agency’s stated policies, tamper with and try to destroy the evidence of his innocence, make up false accusations against him, and swear to those falsehoods in reports and depositions made under penalty of perjury, that would be sufficient to entitle their victim to legal redress for having had his rights violated.

Until we are personally wronged, Americans tend to assume that if our rights are violated, and if we are able to pursue our claims in court, the courts – at least the Federal courts – will redress our grievances against the government and its minions. That’s what the courts are for, or should be for.

But the law makes it extremely difficult to hold government agencies or agents legally accountable.

Government agencies and employees (and in some cases government contractors) have “qualified immunity” from Federal civil rights lawsuits, such as the one brought by Mr. Mocek, unless it was already “clearly established”, at the time of their actions, that those actions were illegal.

This isn’t exactly the same thing as granting impunity to police or other government agencies or agents who violate individuals’ Constitutional rights but claim they didn’t know that what they were doing was wrong. In practice, it amounts to something very similar, and gives police and other government agents a strong incentive to keep themselves ignorant of the Constitution and the law, so that they can claim to have acted in good faith and to have believed that the law they violated wasn’t “clearly established”.

This legal doctrine also makes it easy for sympathetic judges to let police and other government agencies and agents off the hook. The First and Fourth Amendments to the US Constitution, for example, are obviously “well established” law, as part of the Bill of Rights. In the face of a lawsuit for violations of these rights, however, police and other government defendants typically claim that, unless the Supreme Court or the Federal Court of Appeals for that circuit has previously ruled on a case presenting exactly the same pattern of facts, it was not yet “clearly established” whether the defendants’ actions violated those or other provisions of the Constitution.

A judge who wants to dismiss such a case against government actors can almost always find some detail in the facts to distinguish the current case from any previous precedents, or at least to provide a sufficiently plausible excuse for the defendants’ claim that they weren’t sure whether those precedents applied in this instance, and thus that the law wasn’t “clearly established”.

That’s not the only way for government agencies and agents to escape liability. Judges considering a pre-trial motion to dismiss must assume that all the allegations in the complaint are true, must interpret all of those factual claims in the light most favorable to the plaintiff, and must draw all reasonable inferences from those allegations in favor of the plaintiff. The Supreme Court has ruled, however, that a motion to dismiss can be granted if there is any equally plausible set of facts and inferences that is consistent with the complaint but under which the defendants’ actions would not have constituted a violation of the law or the plaintiff’s Constitutional rights.

To avoid pre-trial dismissal of the complaint on such grounds, a plaintiff must anticipate every imaginable set of facts that might justify or excuse the defendants’ conduct or render it Constitutional — even if nobody has ever made such a factual claim in relation to the events that form the basis for the complaint — and include in the initial complaint an explicit claim that none of these facts exist.

The boundaries between “reasonable inferences” as to possible facts consistent with (or not inconsistent with) the factual allegations made by the plaintiff in the complaint, on the one hand, and judicial speculation or the judicial imagination or invention of hypothetical alibis or excuses for the defendants’ conduct, on the other hand, have not been well defined by the Supreme Court. This leaves a trial judge sympathetic to such a defendant plenty of opportunities to dismiss the complaint on the basis of some supposedly “equally plausible” but entirely imaginary alibi or excuse that the plaintiff didn’t bother to “rebut” in his complaint because it wasn’t true, nobody had claimed it was true, and it never occurred to the plaintiff that the defendant might make such a claim.

(There’s widespread awareness of the prevalence of plea-bargaining in criminal cases, most of which are resolved by negotiated pleas of guilty. Criminal trials are rare, and most criminal charges would have to be dismissed for denial of the right to a speedy trial  if all criminal defendants pled not guilty and insisted on their right to a speedy trial, by jury if so entitled. It’s less well known that civil trials are also uncommon. Courts have a strong and — at least in the Federal courts — an explicit preference for resolving civil lawsuits without trial, as early in the judicial process as possible. Parties to all Federal civil lawsuits are required to participate in settlement negotiations, no matter how remote the likelihood of settlement. Federal judges welcome any chance to dismiss a case or to decide it summarily. Trials are considerd a last resort and strongly disfavored. Federal judges will consider, or allow a jury to consider, only those irreconcilable factual disputes that are identified in advance as material to the outcome.)

A US District Court decision granting a pre-trial motion to dismiss is the final disposition of the case, unless the plaintiff can mount yet another round of expensive legal argument to appeal to the Circuit Court.

Mr. Mocek’s attorney at the appellate oral argument, Mary Lou Boelcke of Albuquerque, began by framing Mr. Mocek’s appeal as being about the improper and premature approval of a motion to dismiss. There had been no judicial fact-finding, and at this stage of the case, the District Court shouldn’t have been speculating about the facts beyond assuming, for the sake of this motion, that Mr. Mocek might be able to prove everything alleged in his complaint.

Neither Ms. Boelcke nor the two lawyers who divided the opposing argument (Edward J. Martin from the US Department of Justice in Washington, on behalf of the TSA defendants, and Jeffrey L. Baker for the Albuquerque city defendants) was given a chance to get more than a few sentences into a prepared presentation before being interrupted by questions from the panel of judges. Questions continued for the duration of the half-hour argument. That’s actually a positive sign that all three judges took the case seriously and had prepared for the argument (which ought to be a given, but isn’t always).

There was back-and-forth between the members of the panel as well as between the judges and the lawyers for the parties to the case.  We hesitate to predict how the judges will rule, but from what was said during oral argument, we would be somewhat surprised if the eventual decision is unanimous. In the discussion below, we’ve tried to follow themes from the argument rather than to reproduce the questions in the sequence in which they were asked.

Judge Holmes opened the questioning from the bench to ask whether it was equally plausible to infer from the complaint — even read in the light most favorable to Mr. Mocek – that the TSA checkpoint staff had some other basis for calling the police than retaliation against Mr. Mocek for exercise of his First Amendment right to photograph and record what happened to him at the checkpoint.  Might it be equally reasonable, Judge Holmes asked, to infer that the TSA employees found Mr. Mocek’s behavior “suspicious”, and/or that they couldn’t focus on their other duties while dealing with him?

Ms. Boelcke responded that the District Court didn’t just weigh the plausibility of “inferences” about what might have happened, but engaged in its own premature and impermissible pre-trial fact-finding to jump to unwarranted (and untrue) conclusions about what actually had happened.

Judge Holmes returned to this issue later in the argument, contending that it was as plausible that the TSA employees were motivated by generalized “security” concerns as by Mr. Mocek’s filming and recording. Judge Holmes also seemed to believe that as long as the police had probable cause to believe that Mr. Mocek had committed some crime – any crime – it would be irrelevant whether their real motive in reporting him to the police was to retaliate against him for exercising his rights.

Ms. Boelcke pointed out that Mr. Mocek wasn’t charged with filming, recording, or any violation of TSA security regulations.

It wasn’t mentioned during the argument, but violations of TSA regulations aren’t crimes, and don’t provide a lawful basis for an arrest. Local police have no authority to enforce TSA regulations, and aren’t privy to the secret TSA directives defining what those regulations do and don’t permit or require.

Even if Mr. Mocek had been interfering with TSA “screening” activities, which his video and the complaint in his Federal lawsuit made clear that he wasn’t, that would only have made him liable to an administrative fine by the TSA, not to arrest by the police.  In Mr. Mocek’s case, the TSA made no attempt to assess such a fine – unlike with another TSA protester, “Naked American Hero” John Brennan, whose case is now pending in the 9th Circuit Court of Appeals.

Later in the argument, Judge Holmes seemed inclined to accept Mr. Martin’s extremely dangerous argument that neither the TSA nor the police needed to suspect someone of any particular offense in order to be entitled to demand that they identify themselves to the police. A generalized suspicion (“He seemed suspicious,” rather than, “I suspected him of Offense X”) would be sufficient to justify a demand by police for ID, Mr. Martin asserted.

Judge Holmes also speculated that the TSA staff might not have realized that Mr. Mocek was engaged in  any activity protected by the First Amendment, since he didn’t make any explicit statement of “protest”.

Judge Tymkovich jumped in to take issue with that suggestion, asking why it wasn’t equally reasonable for the TSA, the police, and the District Court to have inferred from Mr. Mocek’s conduct that he was protesting TSA practices – and that the police were called and he was arrested in retaliation for that act of protest. Judge Tymkovich didn’t seem willing to ascribe much significance to the absence of an explicit statement by Mr. Mocek along the lines of, “I am engaging in a political protest.”

Judge Gorsuch wanted to know whether it was “clearly established” law in the 10th Circuit (which includes New Mexico) that the First Amendment protects expressive activity at TSA checkpoints.  Neither the 10th Circuit Court of Appeals nor the Supreme Court has decided a case on that specific issue.

None of the judges made a clear distinction between expressive activity and passive information-collecting or news-gathering activity, or between places where these different types of First Amendment activities are permitted. There are many places, for example, where you aren’t allowed to use a loud-hailer, but where you have a First Amendment right to use a camera and/or a microphone.

Mr. Martin later conceded, on behalf of the TSA, that there is no TSA regulation against filming or recording at TSA checkpoints, and that Mr. Mocek asked and was informed explicitly, in writing, in advance, that TSA policy does not prohibit filming or recording. Mr. Martin contended, however, that TSA policy did not recognize this as a “right”, and that the TSA needs to be allowed “discretion”.

Asked by Judge Tymkovich whether Mr. Mocek had complied with the TSA’s stated policy, Mr. Martin said that the TSA had “recommended” that Mr. Mocek contact the agency in advance to coordinate any photgraphy or filming at a checkpoint, but Mr. Mocek had not doen so.  But Judge Gorsuch cut him off: “That was a recommendation, wasn’t it? Not an order?”  Mr. Martin conceded that this had been only a recommendation.

It would be quite a stretch, obviously, for TSA personnel to plead ignorance of their own agency’s rules, in which they are presumably trained.  So the best chance for the TSA defendants to avoid legal liability would be for them to claim, as they did, that they were not responsible for anything that the police did after the TSA referred Mr. Mocek to them.

The finger-pointing between the TSA and the police went both ways, however, with Mr. Baker arguing that the police had acted reasonably in light of the report they had received from the TSA that Mr. Mocek had been “causing a disturbance”.  (Of course, we now know that — as the video shows, and as was plead in Mr. Mocek’s complaint — that report by the TSA to the police was false.)

“Were the police officers entitled to rely on the TSA allegations?” Judge Gorsuch wanted to know.

“No, they didn’t rely” on what the TSA said, Mr. Baker answered. But these officers assigned to the airport police division worked with these TSA employees every day, knew them very well, and were entitled to treat their complaint against Mr. Mocek as coming from a “highly credible source”.

Judge Gorsuch didn’t seem to buy that argument. “How could anyone think this was disorderly conduct?… Didn’t the police have a duty to investigate on their own, beyond what the TSA told them?”

This led to one of several discussions of Tobey v. Jones et al., a case in which the 4th Circuit found that TSA checkpoint staff who called in local police to deal with a political protester were responsible for the traveler’s arrest as “an undoubtedly natural consequence of reporting a person to the police” in that context.

Not mentioned was the circuit conflict between that decision and the decision in George v. Rehiel et al., in which the 3rd Circuit considered and explicitly rejected that holding.  The judges in George v. Rehiel found that TSA staff who refer a traveler to local police are not responsible for the subsequent actions of the police, because the TSA has no authority over the police and the police are required to conduct their own, independent investigation before making their own decision whether to arrest anyone.

Mr. Baker claimed that the police did conduct their own investigation of the TSA’s complaint against Mr. Mocek, and that what he alleged was a demand by the police that Mr. Mocek identify himself was in fact part of that investigation.

Mr. Martin, on behalf of the TSA, conceded that there was no probable cause for the police to arrest Mr. Mocek for disorderly conduct (which seemed to cast doubt on his clients’ report to the police). Mr. Martin argued, however, that there was first reasonable suspicion, and eventually probable cause, for the police to believe that Mr. Mocek was guilty of “concealing” his identity. This was one of the New Mexico state law charges of which Mr. Mocek was acquitted.

Mr. Martin specifically claimed, during the argument, that the police asked Mr. Mocek for his identity, not just his name. But that simply isn’t true, either in fact or according to the complaint that the judges were supposed to be presuming to be true for the sake of this argument.  One of the police told Mr. Mocek, “We need to see some ID”. Mr. Mocek answered, truthfully, that he didn’t have any in his possession.

The police never asked Mr. Mocek to tell them his name, much less any other information about his identity. There was neither any “concealment” of identity nor any reason to suspect any.

Judge Gorsuch, who clearly had done his homework, pressed Mr. Martin on this: “They asked him his name, and he refused to answer? I didn’t see that in the complaint.”

Mr. Martin then said (again contrary to the facts and the complaint) that the police officers had asked Mr. Mocek for his “identity”, not just his name. New Mexico courts, Mr. Martin said, have defined “identity” as including more identifying information than just a name. A person’s identity could include date of birth, address, and social security number, Mr. Martin alleged.

The police never asked Mr. Mocek for any of this information before they arrested him. They asked him his name after they arrested him, but before they left the airport with him in custody, and he told them. The police never said what they meant by “ID”, and the only demand they made was that they needed to “see” some ID. That’s a demand for the display of some visible evidence of identity, such as an ID document or other credential, not a demand for a verbal declaration that could only be heard and not seen.

Looming over this case and cited in the written briefs, but never mentioned during the Circuit Court argument, is the Supreme Court’s decision in Hiibel v. Nevada. The distinction between “show” and “tell”, when it comes to ID demands, was central to that decision. The Supreme Court upheld the Nevada law only on the basis of its finding that the ID law could be satisfied by verbal self-idenitification, and did not require the carrying or display for inspection of any ID document, credential, or other tangible evidence of identity.

The Courts of Appeal vary in their practices for public access to oral arguments. The 9th Circuit releases video recordings, for example, but the 10th Circuit normally releases only audio recordings.

Mr. Mocek’s attorneys are filing a motion for a copy of the court’s audio recording, and such motions in the 10th Circuit are normally granted as a matter of course.  [The motion was granted, and we’ve posted the audio recording for download or streaming here.]  The acoustics in the courtroom weren’t good, and the audio recording may or may not be more intelligible than the argument was to those listening in the back of the room.

A decision by the 10th Circuit Court on Mr. Mocek’s appeal could be be announced at any time, most likely in a matter of several months. What will happen after that will depend on what the Court of Appeals decides.