John Gilmore oral arguments

Tim Cavanaugh | December 8, 2005

In a gesture that the phrase "so you don't have to" doesn't begin to cover, I spent the morning listening to oral arguments in the case Gilmore v. Gonzalez at the U.S. Court of Appeals for the Ninth Circuit. If you are any kind of Reason reader, you're already familiar with our extensive coverage of Gilmore's suit, which is essentially a Fourth Amendment challenge to a government requirement that you have to show ID before boarding an airplane for domestic travel.

Most of today's arguments turned on various points tangential to the central argument. In particular, there's a jurisdictional question about whether the Ninth Circuit should be hearing the case. Both sides argued that the case should be remanded to a "lower court" (presumably the Northern District of California, which dismissed the case last year), though Department of Justice lawyer Joshua Waldman held out the option of the Ninth Circuit's deciding the case on the merits. The interesting part is that the jurisdiction brouhaha arises from the question of who is actually ordering the ID check. The Transportation Security Administration claims it gave an order to demand IDs to the airlines on the authority of Congress, but Congress has not actually issued any law requiring ID checks. Gilmore's lawyer, James P. Harrison, argues that that requirement hasn't been made public and is effectively a secret law. Waldman counters that there are many cases where we accept a "legal fiction" that something is in the U.S. Code, that ID requirements are prominently posted at airports, on the TSA website, etc., and that everybody in the courtroom (except Gilmore, who was signed in by his lawyer) had to show ID to enter the building.

I have problems with all those arguments, but I also think Gilmore should consider getting a new lawyer. Harrison didn't strike me as terribly well versed in the case law around this issue, and fatally tried to up the dramatic effect with raps on the podium and skylarking about the dangerous road America is on. To every question on what the Fourth Amendment implications are of this kind of ID search, he kept declaring simply that this is an administrative search. I figured this was some piece of legalese that the judges understood better than I did, until this exchange with Judge Stephen Trott:

Trott: Is there a case that says asking for ID in a public setting constitutes a search?

Harrison: This is part of an administrative search, your honor. It clearly is.

Trott: Well, thank you for answering my question! I assume you're saying there are no cases.

After this, Harrison summed up by saying, "Air travel crosses, y'know, borders, oceans. It is not replaceable. So it requires special stuff."

On the courthouse steps after the hearing, one of the pro-Gilmore cranks (whose number I would estimate at about a score) spelled out the distinction Gilmore's attorney did not: That the Hiibel decision made a distinction between having to identify yourself verbally and having to produce a piece of identification, which constitutes a search. (I don't vouch for the details of any of this stuff, just that he seemed to have an argument.)

Just as that guy finished up, one of those lively local characters who mill around downtown public buildings, wearing a blue plastic helmet and an amazing technicolor dreamcoat, got everybody's attention by piping up: "Saddam Hussein! Saddam Hussein said he don't recognize the authority! Ha ha ha!"

Also, Gilmore gave me a "Suspected Terrorist" button.

Comments

|12.8.05 @ 5:28PM|#

I bet Herrick and his, you know, spent the morning getting anal arguements.

|12.8.05 @ 5:32PM|#

I had a serious comment to make, until I click on the comments link. Thanks for flushing that from my mind, smacky.

|12.8.05 @ 5:33PM|#

Harrison didn't strike me as terribly well versed in the case law around this issue, and fatally tried to up the dramatic effect with raps on the podium and skylarking about the dangerous road America is on. To every question on what the Fourth Amendment implications are of this kind of ID search, he kept declaring simply that this is an administrative search.

Souns like a perfect guy for the Libertarians to run in 2008.

|12.8.05 @ 5:37PM|#

jf,

I'm sorry. I truly am. I usually try to save my sophmoric comments for the end of the thread, in order to prevent what you described from happening.

I owe you exactly one cupcake.

Viking Moose|12.8.05 @ 5:38PM|#

" I bet Herrick and his, you know, spent the morning getting anal arguements."

his cupcakes?

is a "Suspected Terrorist" button anything like "the easy button"?

|12.8.05 @ 5:39PM|#

Tim, I agree with your opinion about Gilmore's counsel. Hiibel, on one reading, screams out "not about showing your papers, please." To not stress that point is a failure to provide adequate counsel. I noted this exact issue in the first thread on Ms. Davis' similar situation, and I'm a corporate lawyer who read Hiibel once. Too many lawyers try to B.S. their way around any more, it seems to me. Especially litigators.

|12.8.05 @ 5:43PM|#

I think i might have already mentioned here before at some point that I am on a TSA terrorist watch list, and am taken aside for "secondary screening" whenever i need to fly, either domestically or internationally?

I can only assume this is because my name is John Gilmore. I didnt get any hassle before my doppleganger decided to sue the Feds.

I once emailed this richer and balder version of myself to say (paraphrase):

"hey man, I think a lot of the EFF and cryptography stuff you do is great! and BTW - I have the same name as you. trippy, right!?"

(only i didnt say 'trippy'. I would never say trippy outside of the context of mocking hippies)

He replied. "Oh. I know you! You're the X, Y, Z Gilmore."

(where X,Y,Z were facts about my life)

Apparently when he cashed out of sun or thereabouts, he hired detectives to try and gather as much info about him from public sources as possible. He ended up with dossiers on me and a dozen others.

I thought that was kinda weird.

JG

Viking O RLY Moose|12.8.05 @ 5:45PM|#

yoooo been smokin' again, right there "happy"?

|12.8.05 @ 5:49PM|#

Pro Libertate:

You remind me of a question I asked once before, but can't remember if I got a reply. In the appellate courts, why is it the duty of the lawyer to remind the judges of prior rulings and such? I'd think that one of the judges would, in his questioning of the prosecutor, have had the ability to bring up Hiibel, and asked why this case was different. I'm only a layperson, but I thought that was how the appellate system worked.

(hoping I spelled everything right for the first time today, and waiting on my cupcake).

|12.8.05 @ 6:07PM|#

I'm glad you pointed out that James Harrison was an absolutely aweful attorney. You'd think a guy with that much money (Gilmore) could afford a better lawyer. Joshua Waldman was so good, I would have voted for the government, and *I read Reason*

I'm glad you pointed out the

"Air travel crosses, y'know, borders, oceans. It is not repleacable. So it requires special stuff"

because it typifies his ineptitude. He seemed more interested in playing to the (non-existant) jury and the (non-existant) cameras, and obviously (by this blog-post) didn't even impress the reports - reporters like you who are even sympathetic to his client.

You left out a laugh line in the oral argument - the (laughable) refusal of the government to even admit whether or not there is any regulation requiring one to show ID at the airport. Even the fantastic Joshua Waldman had to admit, that was kind of odd.

The other laugh line was when one of the judges of the panel noted how odd it was that the government was scrambling to get before the *ninth circuit* - be careful what you wish for indeed.

All in all, Gilmore will surely lose. Either get a new lawyer, or stop trying to make law.

|12.8.05 @ 6:10PM|#

jf,

It may take a while. Evil cupcakes don't come in an Instant Mix yet....

*idea lightbulb*

|12.8.05 @ 6:17PM|#

Do you have a transcript of the oral arguments? Sounds like a hoot.

|12.8.05 @ 10:28PM|#

Sounds like a hoot.

As in owl?

Although this thread just cries out for a Stevo Darkly comment, I could think of nothing that was in the same league as smacky's first comment.

Until I resorted to stealing from Steven Crane's "O RLY owl" schtick.

ORALY?

---------------------------------

CREDITS and ACKNOWLEDGEMENTS:

Overall concept: Steven Crane

Locater of image source: Steven Crane

Younger, thinner, and better looking: Steven Crane

|12.9.05 @ 1:10AM|#

The horrifying thing? This guy is generating case law that'll affect all of us for a loooooong time.

We are so fucked.

|12.9.05 @ 1:12AM|#

Unless the Supreme Court takes the case. Which I still worry about anyway, given their track record of late.

|12.9.05 @ 2:36AM|#

I was there too, and I agree his lawyer sucked. He was like a member of the high school debate team.

bb|12.9.05 @ 3:18AM|#

This is where libertarians start losing regular folks. In order to maintain a pure ideology, common sense has to be forgotten. Conservatives and Liberals have the same problem. That's why I don't identify with any political ideology.

Having to produce an ID on a cross town bus or walking down the street, (or buying a cel phone) is one thing, but boarding a plane is another.

People can conjure up all the arguments they want about how an ID check at the airport is intrusive but I think most people would agree that they prefer that the airlines make some effort to ensure that the wrong people aren't getting unlimited access.

I'm sure the system is flawed and there are improvements that need to be made, maybe massive improvements, but stopping ID checks certainly won't contribute to airline safety.

I know that "Never Forget" after 9-11 was just an empty slogan but have people really forgotten so quickly?

|12.9.05 @ 6:24AM|#

LETS DO THIS MAKE ID A REQUIREMENT FOR ENTRY AND IF YOU REFUSE THEN YOU DONT GET IN THE DOOR.
LETS NOT MAKE IT A SEARCH ISUE IF A COP ASKS YOU
FOR YOUR ID ON THE STREET THEN YOU MAKE IT A SEARCH ISUE.THEN YOU GO TO THE THE SUPREAM COURT ITS NOT A ILEGAL SEARCH WHEN THEY ASK TO C YOUR LICENCE TO PURCHASE BEER.IF YOU REFUSE YOU DONT GET THE BEER. OK DONT LET ASKING FOR AN ID IN THE AIRPORT MAKE IT OK TO HAVE ILEGAL SEARCH OR EVEN HAVE TO QUESTION ILLEGAL SEARCH LAWS.
HAVE AN AIRPORT EMPLOYE ASK FOR THE ID OR IF THE FEDS CANT DAM IT DONT SCREW EVERY ONES RIGHT TO PROTECTION UP.WITH THIS BULL CRAP.
PLUS IF WE SHUT OUR BORDERS DOWN AND AND WE HAVE THE TECHNOLGY PUT UP SHECK POINTS WHERE YOU ENTER AND ASK FOR A ID TO GET IN THEN. NO SUITECASE BOMBS GET IN THEY DO HAVE RADIATION DETECTORS THEY PUT UP ON THE HIGHWAYS?????????

|12.9.05 @ 6:57AM|#

LETS DO THIS LETS USE PROPER CAPITALIZATION SPELLING AND PUNCTUAION SO THAT PEOPLE CAN READ BEYOUND THE FIRST LINE OF OUR POSTS WITHOUT GETTING A HEADAKE OK????

|12.9.05 @ 6:58AM|#

Amen Dick Dave.


What?

|12.9.05 @ 6:59AM|#

Niel Boortz says that when he gets an email in all caps, the email always ends in "@aol.com"

|12.9.05 @ 9:23AM|#

jf, the judges have an obligation to prepare for these cases, too. They'll generally have the clerks do some research for them, and they'll also have had a chance to read the briefs prepared by the opposing counsel.

In oral arguments, the counsel get the opportunity to explain the positions they took in their briefs, and they also get to hear and answer questions presented by the judges. Sometimes the judges ask questions that they already "know" the answers to, just to get an idea of the reasoning behind whatever theory of law is being presented.

As for the exchange above, it may be that Judge Trott didn't know the answer or wanted to see if the counsel had anything more to add. Remember, no attorney is an expert in every area of the law, so even if the judge has read some memoranda on the topic, that doesn't mean he's necessarily comfortable with it. Let's just say that the clerks and judges have a lot of work to do after oral arguments before the judges make their decisions. It's also possible he saw the counsel's ignorance and gave him some rope. That sort of thing happens all the time, especially if a judge opposes the position that the attorney has taken.

|12.9.05 @ 9:37AM|#

The "happy" joke was funny man, really.

in 1996.

the au courant version is "where the girls at?!"

I cant believe no one found it interesting i get a flashlight up my ass every time i fly just because i have the same name as this zz-top-looking hippy bajillionare.

JG

R C Dean|12.9.05 @ 12:36PM|#

Waldman counters that there are many cases where we accept a "legal fiction" that something is in the U.S. Code

So, it no longer matters whether something is actually, you know, a law. Our masters are entitled to the "legal fiction" that stuff they wish was a law can be treated as such, even though its actually not.

Really, at that point, I don't understand how a judge can possibly rule in favor of the government, whose case seems to boil down to "we want to punish this guy for breaking a law that doesn't exist." By their own admission.

|12.9.05 @ 3:39PM|#

While Waldman was very good and Harrison mainly relied on rhetoric, wasting several good opportunities to point out the difference between merely asking for i.d. and asking for i.d. with the threat of punishment behind it, the Ninth is unlikely to dismiss this case.

My guess, from seen the hearing, the judges really don't like the secret law stuff. They didn't let the gov show it to them secretly.

I'd bet the Ninth forces the gov to reveal the rule, takes on the case itself and allows Gilmore to amend his complaint to expand it to i.d. checks on ferries, cruise ships and trains.

BTW, Waldman countered there are many cases courts accept the legal fiction that there has been notice of a law (even if no one actually knows it) if it is in the U.S. Code. His point was, that even though the i.d. requirement isn't in the legal code, everyone knows about it.

|12.9.05 @ 5:46PM|#

Also, Gilmore gave me a "Suspected Terrorist" button.

That would make a nice little stocking stuffer for smacky this year. *hint, hint*