Mocek v. City of Albuquerque

• Decision Date: 28 February 2014
• Docket Number: No. CIV 11–1009 JB/KBM.,CIV 11–1009 JB/KBM.
• Parties: 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.
• Court: U.S. District Court — District of New Mexico

3 F.Supp.3d 1002

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, D. New Mexico.

Filed Feb. 28, 2014.

Geoffrey King, James Wheaton, Lowell Chow, First Amendment Project, William Simpich, Law Office of William Simpich, Oakland, CA, Mary Louise Boelcke, Law Office of Mary Louise Boelcke, Albuquerque, NM, for Plaintiff.

Jeffrey L. Baker, Renni Zifferblatt, The Baker Law Firm, Albuquerque, NM, for Defendants City of Albuquerque, Albuquerque Aviation Police Department, and Marshall Katz, Robert F. Dilley, Landra Wiggins, and Julio De La Pena.

Kenneth J. Gonzales, United States Attorney, Manuel Lucero, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, Edward J. Martin, United States Department of Justice, Washington, D.C., for Defendants Jonathon Breedon, Gerald Romero, and Anthony Schreiner.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the City of Albuquerque Defendants' Motion to Dismiss, filed Feb. 1, 2013 (Doc. 54)(“City MTD”). The Court held a hearing on July 12, 2013. The primary issues are: (i) whether to apply law-of-the-case doctrine to dispose of the City MTD using the findings and conclusions of the Court's earlier Memorandum Opinion and Order, filed January 14, 2013, 2013 WL 312881 (Doc. 49)(“MOO”); (ii) whether Plaintiff Phillip Mocek has alleged a plausible claim that Defendants Albuquerque Aviation Police Department (“AAPD”) officers Robert Dilley, Landra Wiggins, and Julio De La Pena (collectively, “the AAPD officers”), in their individual capacities, violated his rights under the First and Fourteenth Amendments to the Constitution of the United States when they allegedly refused to permit him to video record the official conduct of Transportation Security Administration (“TSA”) agents at an airport security screening checkpoint, investigated him, and ultimately arrested him for refusing to produce identification, and whether they can be held liable under 42 U.S.C. § 1983 over a defense of qualified immunity; (iii) whether Mocek has alleged a plausible claim that the AAPD officers, in their individual capacities, violated his rights—to freedom from unreasonable search and arrest and excessive use of force—under the Fourth and Fourteenth Amendments to the Constitution when they allegedly demanded that Mocek produce identification and arrested him when he declined, and whether they can be held liable under § 1983 over a defense of qualified immunity; (iv) whether Mocek has alleged a plausible claim that the AAPD officers committed false arrest under § 1983 or New Mexico state law; (v) whether Mocek has alleged a plausible claim that the AAPD officers committed malicious abuse of process, a tort under New Mexico state law; (vi) whether Mocek has alleged a plausible claim that the AAPD officers violated his rights under the Fifth and Fourteenth Amendments to the Constitution when they allegedly repeatedly demanded that Mocek identify himself, and whether they can be held liable under § 1983 over a defense of qualified immunity; (vii) whether Mocek has alleged a plausible claim that the AAPD officers violated his rights under the Sixth and Fourteenth Amendments to the Constitution when they allegedly attempted to destroy a videotape that became exculpatory evidence at Mocek's criminal trial in New Mexico state court, and whether they can be held liable under § 1983 over a defense of qualified immunity; (viii) whether Mocek has alleged a plausible claim that Defendant City of Albuquerque can be held liable under § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), over a defense of qualified immunity, for having in place a policy, practice, or custom that subjected Mocek to a violation of his constitutional rights; and (ix) whether Mocek is entitled to declaratory relief from Defendant AAPD, Defendant Marshall Katz in his official capacity as the Chief of the AAPD, the City of Albuquerque, and the AAPD officers (collectively, “the City Defendants”) in their official capacities. Having already dismissed all of Mocek's claims against TSA agents Jonathan Breedon, Gerald Romero, and Anthony Schreiner (collectively, “the Federal Defendants”) in its MOO, the Court will now grant the City Defendants' MTD in all respects and dismiss all remaining claims. The Court will not apply law-of-the-case doctrine, because of the interlocutory nature of the MOO, but will decide the City MTD on the merits without deferring to the findings and conclusions of the MOO. Mocek has not sufficiently alleged that the AAPD officers violated his rights under the First Amendment, because the Supreme Court of the United States has recognized that airports—much less airport security screening checkpoints—are nonpublic forums for First Amendment purposes, and thus subject to “reasonable time, manner, and place restrictions,” meaning that Mocek's conduct was not constitutionally protected for the purposes of a First Amendment retaliatory arrest claim. Additionally, although such restrictions must be viewpoint neutral, there is no plausible allegation that the City Defendants discriminated against Mocek on the basis of his viewpoint, which he did not express to either the TSA agents or the AAPD officers. Even if the AAPD officers' actions violated the First Amendment, they 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. The facts alleged in the Complaint do not support Mocek's claim of excessive force under the Fourth Amendment, because it says nothing about any force used against Mocek, let alone excessive force, and the Court will dismiss that claim. Mocek has also not sufficiently alleged an unreasonable search or arrest under the Fourth Amendment, or a false arrest under § 1983, because the AAPD officers had reasonable suspicion to demand that Mocek produce identifying documents, and, upon his failure to comply, probable cause for his arrest. Mocek's claims under state law for false arrest and malicious abuse of process require that the arrest was made without probable cause, and, thus, fail along with the Fourth Amendment claim. Mocek's Fifth Amendment claim fails, because the only alleged attempt that the AAPD officers made to prompt Mocek to inculpate himself was their request that Mocek produce identification, which, as a matter of law, is insufficient to constitute a violation of the Fifth Amendment. Mocek's claim that the City Defendants violated his Sixth Amendment right to a fair criminal trial also fails, because Mocek received a fair trial and was acquitted of all charges. There can be no municipal liability on the part of the City of Albuquerque: even if the City of Albuquerque had an illegal policy, practice, or custom in place, it could not be the proximate cause of any injury to Mocek, because the AAPD officers did not violate Mocek's rights. Last, Mocek is not entitled to declaratory relief, because he suffered no violation of his constitutional or federal statutory rights. The Court, therefore, grants the City MTD.

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 [and] Demand for Jury Trial ¶ 1, at 1–2, filed Nov. 14, 2011 (Doc. 1)(“Complaint”). Mocek began to “harbor reservations” regarding the TSA's passenger identification procedures in 2007 and from that time did not always show documentation of identity when flying on commercial airlines. Complaint ¶ 1, at 2; id. ¶ 27, at 6. “Typically, once TSA staff realized he did not intend to present identification, Mocek would be diverted to a separate line to await assistance and additional questioning from another TSA agent.” Complaint ¶ 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 Complaint ¶ 1, at 2 id. ¶ 29, at 6–7.

Around mid–2008, the 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. Complaint ¶ 30, at 7.

In 2009, Mocek researched the TSA's regulation and policies regarding photography, video recording, and filming at airport screening locations, and learned that the 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 sources he believed to be expounding TSA policy, that TSA does not allow passengers to take pictures of the monitors at checkpoints, but that taking pictures was generally permitted so long as it did not interfere “with the screening process or slow[ ] things down.” Complaint ¶ 32, at 8. A TSA employee at the Albuquerque International Sunport Airport (“Albuquerque Sunport”) informed Mocek that there are no 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...