Are TSA staff and police immune from liability when they violate travelers’ rights?

 

Are First Amendment rights not “clearly established”?

These are now the issues before Judge James O. Browning of the U.S. District Court for the District of New Mexico in Phillip Mocek v. Albuquerque et al., a Federal civil rights lawsuit brought by “Freedom Flyer” Phillip Mocek following his acquittal by a jury on all of the trumped-up criminal charges brought against him after his false arrest at a TSA checkpoint at the Albuquerque (ABQ) airport.

Here’s how this case came about, what has happened, and where things now stand:

Phil Mocek 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 rights to travel and to film and record the actions of public officials in a public place, but was arrested by local police on false and trumped-up allegations of violations of state and local laws and ordinances.

On January 21, 2011, Mr. Mocek was acquitted by a jury on all counts. (More about the criminal case and acquittal.)

On April 20, 2011, Mr. Mocek filed a claim against the City of Albuquerque and the Albuquerque Aviation Police Department for violations of his civil rights including false arrest and interference with his First Amendment rights including his rights to photograph and record police and TSA checkpoint staff.

On November 14, 2011, Mr. Mocek initiated a Federal civil rights lawsuit with the filing of this complaint against the city, the airport police department, and the responsible police officers and TSA checkpoint staff.

Mr. Mocek brought this case under 42 U.S Code 1983, the Civil Rights Act of 1871, “Civil action for deprivation of rights”:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

As the evidence at Mr. Mocek’s criminal trial and Mr. Mocek’s civil complaint make clear, he was wrongly arrested in retaliation for trying to exercise his right to fly without having or showing government-issued identity credentials, and for trying to document the procedures for flying without ID by making an audio and video recording of what happened to him at the TSA checkpoint.

TSA checkpoint staff testified at Mr. Mocek’s criminal trial that they knew that they were not law enforcement officers and had no powers of arrest, and that they knew that passengers are entitled to fly without showing ID. The TSA has procedures for that, and it happens every day, they said.

(The Identity Project is still pursuing our Freedom of Information Act (FOIA) request and appeal — unanswered after more than 18 months — for information about those procedures and the TSA’s “Certification of Identity” form.)

In response to Mr. Mocek’s inquiry, the TSA had told him in advance, in writing, that its policies (with which its employees should have been familiar) permit photography and filming at checkpoints.

Knowing that they had no legal authority to interfere with Mr. Mocek’s actions, the TSA called in the police. The police should also have known that they had no legal basis to detain or arrest Mr. Mocek or to stop him from exercising his rights to travel, to film, and to record. But the police falsely arrested Mr. Mocek, confiscated his camera, and tried to destroy the recordings that exonerated Mr. Mocek and incriminated the TSA staff and the police.

Thinking that they had destroyed the audio and video evidence, they then falsified their reports to accuse Mr. Mocek of things he had not done. Fortunately, Mr. Mocek was able to recover the audio and video recordings deleted from his camera, and these recordings were played to the jury which then acquitted Mr. Mocek.

The defendants — TSA staff and police — filed a motion to dismiss the complaint, supported by a memorandum of law and two of the reports filed by the police (but disbelieved by the jury that acquitted Mr. Mocek).

The TSA defendants argue that they weren’t responsible for anything that was done to Mr. Mocek, even though they gave him (illegal) orders to stop filming, called the police, and made false accusations to the police that Mr. Mocek had violated TSA rules.

Both the TSA and the police defendants claim that they have “qualified immunity” from lawsuits such as this, because it wasn’t “clearly established” at the time of the incident that Mr. Mocek had a right to film or record at the TSA checkpoint (even though TSA policy explicitly recognized such a right).

Apparently the defendants believe that the First Amendment isn’t “clearly established,” and that TSA employees can’t be expected to be familiar with their own agency’s published policies.

The defendants also improperly claim that their actions were justified by unsubstantiated accusations against Mr. Mocek (such as that he was “disruptive”) that Mr. Mocek has not admitted to be true, and that were rejected by the criminal jury which acquitted Mr. Mocek.

In his memorandum (table of contents, table of authorities) in opposition to the defendant’s motion to dismiss the complaint, Mr. Mocek points out that at this stage of the case the issue is whether he has alleged a violation of his rights, not whether those allegation have yet been proved, and that many of the defendants’ allegations were already rejected by the jury which acquitted Mr. Mocek:

By attempting to characterize Mocek and his behavior as disruptive, the federal defendants in their motion are attempting to do precisely what they did in November 2009 — to falsely accuse Mocek of disorderly conduct. The criminal accusations of disorderly conduct were deemed false by a jury.

The federal defendants should not be permitted to justify their unlawful behavior … by creating a narrative of the events that is at odds with the allegations in the complaint and is based on statements and characterizations already found to be untrue.

Mr. Mocek says that the TSA employees share culpability for the violation of his rights:

While it is true that the local police defendants conducted the arrest and seizure, the federal [i.e. TSA] defendants must answer for the unlawful, unreasonable and unconstitutional order to cease recording events of public interest occurring in a public place. Their orders to cease engaging in perfectly lawful and peaceful activity that posed no threat to anyone — conduct with a First Amendment component — created a constitutional injury….The injury was compounded when, in order to put that order into effect, the federal defendants enlisted the police to give force to their unconstitutional demand.

Mr. Mocek also argues that the TSA employees should have been familiar with the published TSA policies permitting travel without ID and filming and recording at checkpoints. And both the TSA staff and the police should have been familiar with the First Amendment, which is “clearly established”.

The defendants reiterated their arguments in a reply brief.

A few days after the completion of briefing on the defendants’ motion for dismissal was completed, the case was assigned to a new judge. The newly assigned judge, James O. Browning, will now study the parties’ submissions and either issue an opinion or schedule a hearing on the motion for dismissal.  There is no required deadline for when Judge Browning has to make a decision on this motion.

This case is important because while TSA checkpoint staff are called “officers”, they aren’t actually law enforcement officers, and they have no power to arrest or detain anyone. At some airports, including SFO, the people wearing uniforms that say “TSA” all over them aren’t even TSA or government employees, but “rent-a-cops” employed by a private contractor.

As a  result of their own lack of authority, TSA checkpoint staff depend on local police to provide the “muscle” to back up their demands.  The limits of the TSA’s power are therefore determined by the willingness of local police at airports and other transportation facilities to enforce orders — whether legal or illegal — from civilian TSA employees and contractors.

Holding TSA checkpoint staff and contractors accountable when they call the cops on innocent travelers for exercising our rights, and holding local law enforcement officers and agencies responsible when they carry out unlawful detentions, arrests, or searches or trump up false charges at the behest of the TSA, is essential to securing our rights.

When their actions have been challenged by travelers, TSA staff and local police have consistently claimed that whatever rights they violated were not yet “clearly established,” and thus that they enjoy “qualified immunity” from liability for their actions — even if those actions are later found to have been unconstitutional.  In Corbett v. TSA, for example, TSA staff have claimed that they have “qualified immunity” even when they detain travelers at checkpoints, despite not being law enforcement officers.

It’s critical, in cases like this, to establish clear precedents that these actions violate travelers’ rights, so that in the future those who violate these rights can’t claim this sort of “immunity”.

Through this case, Mr. Mocek is also seeking to recover more than $34,000 in legal expenses he incurred to defend himself against the false criminal charges.

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.

[FAQ including links to court documents: Phillip Mocek v. Albuquerque et al.]