Mocek v. City of Albuquerque, CIV 11-1009 JB/KBM

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesPHILLIP MOCEK, Plaintiff, v. CITY OF ALBUQUERQUE, ALBUQUERQUE AVIATION POLICE DEPARTMENT, MARSHALL KATZ, in his official capacity as Chief of Police of the Albuquerque Aviation Police Department, JONATHAN BREEDON, GERALD ROMERO, ANTHONY SCHREINER, ROBERT F. DILLEY a/k/a BOBBY DILLEY, LANDRA WIGGINS, JULIO DE LA PENA, and DOES 1-25, inclusive, Defendants.
Docket NumberNo. CIV 11-1009 JB/KBM,CIV 11-1009 JB/KBM
Decision Date14 January 2013

PHILLIP MOCEK, Plaintiff,
v.
CITY OF ALBUQUERQUE, ALBUQUERQUE AVIATION POLICE DEPARTMENT,
MARSHALL KATZ, in his official capacity as Chief of Police of the Albuquerque Aviation Police Department,
JONATHAN BREEDON, GERALD ROMERO, ANTHONY SCHREINER,
ROBERT F. DILLEY a/k/a BOBBY DILLEY, LANDRA WIGGINS, JULIO DE LA PENA,
and DOES 1-25, inclusive, Defendants.

No. CIV 11-1009 JB/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: January 14, 2013


MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Individual Federal Defendants' Motion to Dismiss, filed June 1, 2012 (Doc. 25)("MTD"). The Court held a hearing on November 20, 2012. The primary issues are: (i) whether Plaintiff Phillip Mocek has alleged a plausible claim that Defendants Transportation Security Administration officers Jonathan Breedon, Gerald Romero, and Anthony Schreiner, (collectively, the "TSOs") violated his rights under the First Amendment to the United States Constitution; (ii) whether Mocek has alleged a plausible claim that the TSOs violated his rights under the Fourth Amendment to the United States Constitution; (iii) whether the TSOs are entitled to qualified immunity on Mocek's claims; and (iv) whether the Court has jurisdiction over Mocek's claims for declaratory relief from the TSOs in their official capacity. The Court will grant the MTD. Mocek has not sufficiently alleged that the TSOs plausibly violated his First Amendment rights through ordering him to cease recording and

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subsequently summoning the police, and, even if they had, the TSOs are entitled to qualified immunity because Mocek's alleged right to gather news at an airport screening checkpoint and to record police activity in public are not clearly established. Mocek has also not sufficiently alleged that he suffered a Fourth Amendment violation at the hands of the Defendants Albuquerque Aviation Police Department officers Robert F. Dilley, Landra Wiggins, and Julio De La Pena (collectively, "the AAPD officers"). The TSOs, therefore, cannot be liable for having proximately caused Mocek's alleged Fourth Amendment injuries, because Mocek has not sufficiently alleged that the TSOs' conduct led to the deprivation of his rights under the Fourth Amendment. Further, the TSOs did not violate clearly establish law by summoning the AAPD officers, because the TSOs summoned the AAPD officers after Mocek would not comply with the TSOs' reasonable order for Mocek to stop filming. The TSOs are, thus, entitled to qualified immunity from Mocek's Fourth Amendment claims, because the TSOs did not engage in tortious or unlawful conduct which they knew or reasonably should have known would lead to the AAPD officers depriving Mocek of his constitutional rights. Lastly, Mocek has not brought his claims against the TSOs in their official capacity under a statute in which the TSA has waived its sovereign immunity, and thus the Court will dismiss Mocek's claims for declaratory relief against the TSOs for lack of jurisdiction.

FACTUAL BACKGROUND

Mocek is an "outspoken advocate of free software, open standards, government transparency, drug policy reform, and civil liberties." Complaint for Damages, Injunctive Relief, and Declaratory Relief Demand for Jury Trial ¶ 1, at 1-2, filed Nov. 14, 2011 (Doc. 1)("Complaint"). Mocek began to "harbor reservations" regarding the Transportation Security Administration's ("TSA") passenger identification procedures in 2007, and from that time did

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not always show documentation of identity when flying on commercial airlines. Id. ¶ 1, at 2, ¶ 27, at 6. "Typically, once TSA staff realized he did not intend to present I.D., Mocek would be diverted to a separate line to await assistance and additional questioning from another TSA agent." Id. ¶ 28, at 6. Mocek would usually be allowed to board his flights without showing identification, although he noticed that his person and his bags were searched more thoroughly when he did not show identification than when he did. See id. ¶ 1, at 2, ¶ 29, at 6-7.

Around mid-2008, TSA announced that passengers who "willfully refused" to show identification would not be allowed to pass through screening checkpoints, but that passengers who had misplaced their identification or whose identification were stolen would be allowed to pass through if they complied with alternative procedures. Id. ¶ 30, at 7.

Mocek research the TSA's regulation and policies regarding photography, video recording, and filming at airport screening locations in 2009, and learned that TSA does not prohibit any of these actions at a screening location. See Complaint ¶ 2, at 2; id. ¶ 32, at 7-8. He was informed, through whom he believed to be sources expounding TSA police, that TSA does not allow passengers to take pictures of the monitors at checkpoints, but that taking pictures generally was permitted so long as it did not interfere "with the screening process or slow[] things down." Id. ¶ 32, at 8. A TSA employee at the Albuquerque International Sunport Airport ("Albuquerque Sunport"), in Albuquerque, New Mexico, informed Mocek that there are not any state or local laws prohibiting photography in public areas of the Albuquerque Sunport, but the TSA employee also advised Mocek that he should contact the Albuquerque Sunport's public affairs staff in advance to coordinate photography. Mocek believed that these statements "represented official TSA rules and policies." Id. ¶ 37, at 9. When Mocek inquired regarding the necessity of coordinating photography in advance, the same TSA employee informed Mocek that

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advance coordination of photography was a "local practice and not available in writing," but that advance coordination would allow TSA to inform law enforcement officers at the checkpoint of the photography. Id. ¶ 39, at 9. The TSA employee informed Mocek that the TSA screening checkpoint at the Albuquerque Sunport is a "restricted area and just for ticketed passengers." Id. ¶ 39, at 9 (internal alterations omitted). The TSA employee later informed Mocek, after another inquiry from him, that the information the employee provided was "a recommendation," and that TSA "only encourage[s] individuals to contact TSA in advance so we can facilitate the photography." Complaint ¶ 40, at 9. When Mocek asked if he could disregard the employee's statement that advance coordination is "required," the employee reiterated that her statement was a recommendation, and that advance coordination was only encouraged so that TSA "can facilitate the photography." Id. ¶ 41, at 9-10. Mocek believed, from this exchange, that "neither TSA nor state or local laws prohibited him from photography or filming at the TSA checkpoint" at the Albuquerque Sunport, other than filming the TSA monitors. Id. ¶ 42, at 10.

On November 15, 2009, Mocek attempted to fly out of the Albuquerque Sunport without providing identification. Although he possessed a Washington state driver's license, he had given his license to his travelling companion, Jesse Gallegos, before approaching the TSA screening checkpoint. See id. ¶ 43, at 10. Mocek expected that he may encounter the "new identification procedure" which TSA announced in 2008 and was concerned that he may face retaliation for his "willful . . . refusal to show documentation of identity." Id. ¶ 3, at 2.

When Mocek reached the TSA podium, he presented his boarding pass to a TSA employee, but did not present identification. He informed the TSA employee that "it was his understanding that he was not required to produce any such documents, only his boarding pass." Complaint ¶ 44, at 10. The TSA employee told Mocek to stand in a different line nearby, where

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Mocek waited. See id. ¶ 44, at 10.

Breedon then approached Mocek and asked him if he had any other forms of identification, such as a credit card, which might help to identify him, and Mocek responded that he did not believe he was required to produce identification. Breedon informed Mocek that he was correct and asked Mocek if he could verify his identity in another way. Mocek stated that he would not provide any form of identification, because he believed he was not required to provide identification. Breedon told Mocek that he would contact the TSA's Security Operations Center, which would attempt to verify Mocek's identity, and that if the Security Operations Center could not verify Mocek's identity, he would not be allowed to board the plane. See id. ¶ 45, at 10-11. None of the TSA employees present indicated that they had any intent to involve law enforcement at that time. See id. ¶ 45, at 11.

Mocek then began using his camera to video "what he perceived to be an atypical, alternative identification policy." Id. ¶ 46, at 11. Breedon told Mocek to stop filming, but Mocek responded that he did not believe that filming in a "publicly accessible" area was illegal. Complaint ¶ 46, at 11. Breedon attempted to take Mocek's camera, and told him that no photography or videotaping was permitted at the checkpoint. See id. ¶ 46, at 11. Breedon then called for police assistance. See id. ¶ 47, at 11.

Romero and Schreiner approached Breedon and Mocek. See id. Romero "ordered Mocek repeatedly to put down the camera and attempted to grab either Mocek or the camera." Id. ¶ 48, at 11. Mocek "remained calm and restrained" throughout the incident, while the TSOs became increasingly agitated.1 Complaint ¶ 5, at 2. Mocek...

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