Oral arguments on “Freedom Flyer” Phil Mocek’s appeal of the dismissal of his Federal civil rights lawsuit against the TSA employees and Albuquerque police responsible for falsely arresting him at a TSA checkpoint at the Albuquerque airport in 2009 have been scheduled for Tuesday, March 17th, in Denver, Colorado.
The 10th Circuit Court of Appeals hearing will be (sort of) open to the public, with caveats as discussed below.
Mr. Mocek was arrested — valid boarding pass in hand — in retaliation for trying to exercise his First Amendment rights to (a) travel by licensed interstate common carrier and (b) film and record what happened when he tried to fly without having government-issued ID credentials in his possession.
Despite the inept efforts of the police to destroy the evidence against themselves (Mr. Mocek’s audio and video recording of his false arrest, which he was able to recover) and their equally inept efforts to lie about what had happened in their written reports and in their testimony at Mr. Mocek’s criminal trial, Mr. Mocek was acquitted by an Albuquerque jury on January 21, 2011, of all of the charges that were trumped up after the fact to try to justify his arrest.
On November 14, 2011, Mr., Mocek sued the TSA, the city of Albuquerque and its police, and the individual TSA employees and police officers responsible for depriving him of his civil rights.
In pre-trial rulings on January 24, 2013 and February 28, 2014, a Federal District Court judge in Albuquerque dismissed all of Mr. Mocek’s complaints against the various Federal government, local government, and individual defendants on the grounds that:
- The TSA and its employees were not responsible for what happened to Mr. Mocek after they called the police. The TSA swears that its checkpoint staff have no authority to arrest anyone or tell the police to do so. But this issue is now the subject of an explicitly acknowledged dispute between the 4th Circuit (”It is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and [airport] police act in close concert”) and the 3rd Circuit (”[I]t seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody”).
- The defendants all had “qualified immunity” from liability because the First Amendment right to film and record the actions of the TSA and police at a checkpoint for passengers passing through a publicly-owned and operated airport en route to flights operated by Federally-licensed interstate common carriers was either nonexistent or not “clearly established”. This makes a mockery, of course, not just of the First Amendment itself but of the entire body of “Freedom Rider” case law concerning the First Amendment rights of interstate common-carrier (bus) passengers passing thrrough publicly and even at privately-owned and operated terminal and transit facilities.
- The arrest of Mr. Mocek was permissible because the police “had reasonable suspicion to demand that Mocek produce identifying documents, and, upon his failure to comply, probable cause for his arrest.” This claim fundamentally misconstrues both New Mexico law on ID and key aspects of the Supreme Court’s decision in Hiibel v. 6th Judicial District Court.
Mr. Mocek then appealed to the U.S. Court of Appeals for the 10th Circuit. Written briefs were filed by Mr. Mocek (Appellent/Petitioner) and the original defendants (Appellees/Respondents):
- Mr. Mocek’s opening brief on appeal
- Attachments to Mr. Mocek’s opening brief on appeal
- Albuquerque government’s brief on appeal
- Individual police officers’ and TSA employees’ brief on appeal
- Mr. Mocek’s reply brief on appeal
Oral argument before a three-judge panel of the 10th Circuit Court of Appeals is scheduled for Tuesday, March 17, 2015, beginning at 9 a.m., in Courtroom 2 of the Byron White U.S. Courthouse, 1823 Stout St., Denver, CO. Oral argument will probably last no more than an hour, but there are five cases on the same 9 a.m. argument calendar, so people planning to attend should probably allow the whole morning.
“Identification” is required to enter the courthouse, but there don’t appear to be any published rules as to what constitutes sufficient ID. According to Local Rule 57.4 (”Security”):
On request of a United States marshal, court security officer, federal protective service officer, or court official, anyone within or seeking entry to any court building shall produce identification and state the nature of his or her business. Failure to provide identification or information shall be grounds for removal or exclusion from the building.
Photography, audio or video recording, or broadcasting are prohibited anywhere inside the courthouse (not just in courtrooms). Cameras and recording or broadcasting devices that lack any other functions are barred form the courthouse. Cell phone, laptops, and other electronic devices are allowed in the courthouse, and may be used (silently and without photography or audio or video recording or broadcasting) in the courtroom, subject to these rules of the 10th Circuit Court of Appeals and of the U.S. District Court for the District of Colorado, which manages the building in which both courts are located.
There’s more information in our FAQ’s about the original events and Mr. Mocek’s false arrest and eventual acquittal on criminal charges and about Mr. Mocek’s ongoing Federal civil rights lawsuit which is the subject of this appellate hearing.
We’ll be in Denver on March 17th to observe and report on this hearing and to show our continued support for Mr. Mocek. We invite you to join us inside and/or outside the courthouse, and/or to help pay off Mr. Mocek’s debts for the costs of defending himself against the original false criminal charges.