Update on Mocek v. Albuquerque et. al.
Jan 27, 2013, 10:17 am
#31
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http://www.wired.com/threatlevel/201...t-chest-trial/
Similar case. Man jailed on disorderly conduct charges. Files federal lawsuit seeking damages for being detained on d/c charge.
It appears the trial court judge ruled against the man, but the Appeals (court) in the 4th circuit ruled 2-1 and reversed a lower court judge.
SDF
Similar case. Man jailed on disorderly conduct charges. Files federal lawsuit seeking damages for being detained on d/c charge.
It appears the trial court judge ruled against the man, but the Appeals (court) in the 4th circuit ruled 2-1 and reversed a lower court judge.
SDF
The contrast in language, especially in regard to "disruptive" behavior, between the majority decision and that of the judge in the Mocek case is striking, e.g.
"Even conceding that Mr. Tobey’s behavior was "bizarre,"
bizarre behavior alone cannot be enough to effectuate an
arrest. If Appellants caused Mr. Tobey’s arrest solely due to
his "bizarre" behavior, Appellants’ cannot be said to have
acted reasonably. This is especially the case given that the
First Amendment protects bizarre behavior. See Spence v.
Washington, 418 U.S. 405, 410 (1974) (per curiam).3 Woven
into our constitutional freedoms is the belief in autonomy and
the celebration of difference. For us to hold today that it is
reasonable to cause an arrest due to bizarre behavior and nothing
more would violate the most basic tenents of our Constitution.
Further, contrary to Appellants’ assertions, bizarre does not
equal disruptive. Whether Mr. Tobey was in fact "disruptive"
is a disputed question of fact at this juncture. Appellants seem
to think that removing clothing is per se disruptive. We beg
to differ. Passengers routinely remove clothing at an airport
screening station, and in fact are required to do so by TSA
regulations. It is just as reasonable that Mr. Tobey calmly taking
off his t-shirt and sweatpants caused no disruption at all,
especially since he was never asked to put his clothes back on.
And because we are reviewing the facts at the 12(b)(6) phase
of litigation, we must view the facts in the light most favorable
to Mr. Tobey. It could be perfectly true that after further
factual development a court could find that Appellants acted
reasonably given Mr. Tobey’s conduct. Perhaps Mr. Tobey
took off his shirt, twirled it around his head, and ripped off his
pants with a dramatic flourish, indeed causing a great spectacle.
However, we cannot, from this record at the 12(b)(6)
stage, make this factual conclusion."
bizarre behavior alone cannot be enough to effectuate an
arrest. If Appellants caused Mr. Tobey’s arrest solely due to
his "bizarre" behavior, Appellants’ cannot be said to have
acted reasonably. This is especially the case given that the
First Amendment protects bizarre behavior. See Spence v.
Washington, 418 U.S. 405, 410 (1974) (per curiam).3 Woven
into our constitutional freedoms is the belief in autonomy and
the celebration of difference. For us to hold today that it is
reasonable to cause an arrest due to bizarre behavior and nothing
more would violate the most basic tenents of our Constitution.
Further, contrary to Appellants’ assertions, bizarre does not
equal disruptive. Whether Mr. Tobey was in fact "disruptive"
is a disputed question of fact at this juncture. Appellants seem
to think that removing clothing is per se disruptive. We beg
to differ. Passengers routinely remove clothing at an airport
screening station, and in fact are required to do so by TSA
regulations. It is just as reasonable that Mr. Tobey calmly taking
off his t-shirt and sweatpants caused no disruption at all,
especially since he was never asked to put his clothes back on.
And because we are reviewing the facts at the 12(b)(6) phase
of litigation, we must view the facts in the light most favorable
to Mr. Tobey. It could be perfectly true that after further
factual development a court could find that Appellants acted
reasonably given Mr. Tobey’s conduct. Perhaps Mr. Tobey
took off his shirt, twirled it around his head, and ripped off his
pants with a dramatic flourish, indeed causing a great spectacle.
However, we cannot, from this record at the 12(b)(6)
stage, make this factual conclusion."
Jan 27, 2013, 5:10 pm
#32
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As my friend Nicky used to say:
Originally Posted by Niccolň Machiavelli
... for it happens in this, as the physicians say it happens in hectic fever, that in the beginning of the malady it is easy to cure but difficult to detect, but in the course of time, not having been either detected or treated in the beginning, it becomes easy to detect but difficult to cure. Thus it happens in affairs of state, for when the evils that arise have been foreseen (which it is only given to a wise man to see), they can be quickly redressed, but when, through not having been foreseen, they have been permitted to grow in a way that every one can see them. there is no longer a remedy.
Last edited by essxjay; Mar 22, 2015 at 11:24 am Reason: reference to deleted remark
Jan 27, 2013, 5:51 pm
#33
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It shouldn't surprise anyone that the justice system is a crap shoot. Plaintiffs and defendants are pretty much in the hands of the judges whose predispositions vary widely.
Pity that voire dire doesn't apply to them as well as to jurors.
</OMNI>
Jan 27, 2013, 5:58 pm
#34
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Actually, it doesn't do anything of the sort. First, no judgement of a lower court can be said to "establish" anything because it's subject to multiple levels of appeal.
But, perhaps more importantly, the ruling didn't say that the TSA can tell you not to record video, though the distinction is subtle. In order to prevail in a Bivens case, the right not only has to exist but be "clearly established". If a court were to hold at some point that there were a right to videotape in that situation, that alone would not give Mocek a Bivens case unless he can also establish that it was reasonable for a TSO to know that such was protected behavior.
Somewhat of an analogy here is that a police officer who carries out a search as called for in a warrant isn't responsible if the warrant turned out to be improperly obtained unless it would have been reasonable for the officer to know that.
Now, it's true that in this document, the court seems indeed to be implying that they don't think that a right to film exists in this case, that's not central to the motion here and it didn't actually come out and say that.
But, perhaps more importantly, the ruling didn't say that the TSA can tell you not to record video, though the distinction is subtle. In order to prevail in a Bivens case, the right not only has to exist but be "clearly established". If a court were to hold at some point that there were a right to videotape in that situation, that alone would not give Mocek a Bivens case unless he can also establish that it was reasonable for a TSO to know that such was protected behavior.
Somewhat of an analogy here is that a police officer who carries out a search as called for in a warrant isn't responsible if the warrant turned out to be improperly obtained unless it would have been reasonable for the officer to know that.
Now, it's true that in this document, the court seems indeed to be implying that they don't think that a right to film exists in this case, that's not central to the motion here and it didn't actually come out and say that.
Jan 27, 2013, 6:00 pm
#35
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That's a common argument, implying that governmental abuse or restriction of the peoples' rights is not tyranny unless it goes to an absurd extreme. So, anything that falls short of a Holocaust or Ethnic Cleansing is not really tyranny, right?
Wrong. Tyranny begins small and snowballs. And it's a heck of a lot easier to resist when it's small than it is after it becomes mountainous.
Cameras are allowed. Filming is allowed. It's been established time and again, not only by official TSA policy, but in multiple courts around the country. When a government actor or group of such take it upon themselves to violate that legal precept, they're breaking the law and violating peoples' rights. That's tyranny, whether they do it by harassment or by shooting cameramen down on sight.
I tend to seriously doubt the scientific veracity of facts presented by a man who actually thinks that commercial aircraft fly "well above the earth's atmosphere."
Um, Bobby... things that fly above the atmosphere are called "spacecraft", not "aircraft." And as far as I know, none of the air carriers operating in the US today offer extraatmospheric flight options. Though that would be pretty cool. Starflight, anyone?
Wrong. Tyranny begins small and snowballs. And it's a heck of a lot easier to resist when it's small than it is after it becomes mountainous.
Cameras are allowed. Filming is allowed. It's been established time and again, not only by official TSA policy, but in multiple courts around the country. When a government actor or group of such take it upon themselves to violate that legal precept, they're breaking the law and violating peoples' rights. That's tyranny, whether they do it by harassment or by shooting cameramen down on sight.
I tend to seriously doubt the scientific veracity of facts presented by a man who actually thinks that commercial aircraft fly "well above the earth's atmosphere."
Um, Bobby... things that fly above the atmosphere are called "spacecraft", not "aircraft." And as far as I know, none of the air carriers operating in the US today offer extraatmospheric flight options. Though that would be pretty cool. Starflight, anyone?
Jan 27, 2013, 6:06 pm
#36
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...Tobey deliberately and indisputably removed much
more clothing than is consistent with ordinary TSA screening
practices. Needless to say, Tobey and the majority point to no
decision holding that it is unreasonable to detain someone
who fails to follow TSA instructions and proceeds in a manner
calculated to divert attention from the normal screening
process and redirect it toward himself.
In addition, whether or not Tobey caused a visible commotion
in the screening area—whether or not he "took off his shirt,
twirled it around his head, and ripped off his pants with
a dramatic flourish, indeed causing a great spectacle," ante at
15-16—it is a simple matter of common sense that his behavior
was disruptive. See Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) ("Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense."). This inference follows ineluctably from the
face of the complaint. Outside a few limited contexts, such as
public swimming pools, removing one’s shirt and pants will
always attract other people’s attention and distract them from
whatever they happen to be doing. Tobey’s own counsel conceded
as much when he described his client’s behavior as "bizarre,"
an impression that the district court evidently shared...
more clothing than is consistent with ordinary TSA screening
practices. Needless to say, Tobey and the majority point to no
decision holding that it is unreasonable to detain someone
who fails to follow TSA instructions and proceeds in a manner
calculated to divert attention from the normal screening
process and redirect it toward himself.
In addition, whether or not Tobey caused a visible commotion
in the screening area—whether or not he "took off his shirt,
twirled it around his head, and ripped off his pants with
a dramatic flourish, indeed causing a great spectacle," ante at
15-16—it is a simple matter of common sense that his behavior
was disruptive. See Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) ("Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense."). This inference follows ineluctably from the
face of the complaint. Outside a few limited contexts, such as
public swimming pools, removing one’s shirt and pants will
always attract other people’s attention and distract them from
whatever they happen to be doing. Tobey’s own counsel conceded
as much when he described his client’s behavior as "bizarre,"
an impression that the district court evidently shared...
Jan 27, 2013, 8:03 pm
#37
Join Date: Apr 2011
Posts: 142
The reading of the ruling leaves me in dismay. Not from the aspect that Mocek was ruled against, although that was somewhat disheartening; but, from some of the 'legal' aspects presented as case law that appear to me to be such clear .......izations of common sense. As well as what appears to be blatant manipulation of facts to affect the outcome that the court, in my opinion, wanted to achieve.
Among a myriad of other things, and perhaps a nitpick, but when it appears that a judge can't read a law that he quotes himself and apply it accurately, I'm not sure how much faith I can put in the remainder of his ruling. He quotes a description of the NM law on page 106 in regards to "concealing identity" - then later notes:
Last I checked, and I'm sure the lawyer types would agree, there can be a world of difference in 'identifying' oneself and being required to produce 'identification'. Nitpick maybe, but, the courts should not be attempting to construe the two as equivalent. To me, it was additional confirmation of bias among the myriad of other hoops it appeared the judge was jumping through to make his case in the ruling.
Among a myriad of other things, and perhaps a nitpick, but when it appears that a judge can't read a law that he quotes himself and apply it accurately, I'm not sure how much faith I can put in the remainder of his ruling. He quotes a description of the NM law on page 106 in regards to "concealing identity" - then later notes:
The AAPD officers could legally demand Mocek to produce identification, because they had reasonable suspicion that he was engaged in criminal activity. His failure to produce that identification thus gave the AAPD officers probable cause to arrest him.
Jan 27, 2013, 8:48 pm
#38
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These words of the judge particularly concern me:
And he then cites a dictionary definition of disturbance: "...defining "disturb" as "to turn or distract (a person) by disturbance..."
Ergo, if the TSA tells you to stand "over there" and you say or do anything that they say "disturbs" them, or, as the judge synonymizes, "distracts" them, they have grounds to call the police, and the police in turn have grounds to suspect you, to demand i.d., and to arrest you.
Ironically, if the judge carries through with this line of reasoning, pax will have to make the utmost of efforts in future not to "distract" the TSA. "You're beginning to distract me" can supplant "Do you want to fly today?"
These are just my layman's observations. Somebody please provide an educated - and hopefully more optimistic - analysis.
These clerks, however, violated the rules and took it upon themselves to interfere with passenger conduct that is expressly permitted by the rules of their employer. Their violation of the rules caused them to pay attention to something they shouldn't have been paying attention to, and by paying attention to Mocek and trying to do something the rules prohibited them from doing, they were distracted from their duties. They were "disturbed" by Mocek's filming, although the rules required them to let him go about his filming without interference. They then lied to the police and said Mocek was "creating a disturbance." The judge, in his opinion, presented a tendentious definition of the word "disturbance," suggesting that it means "anything that disturbs anybody," when it certainly must require that the "disturbed" person be disturbed about something he has a right to be disturbed about.
The clerk's had no right to be disturbed by Mocek's filming and it didn't cause a security risk. Any security risk was caused by the clerks' inattention to the requirements of their jobs.
The judge perverted the meaning of "creating a disturbance" so he could reach the result he wanted. The clerks lied to the police and the police lied in their report. Mocek has film of how he behaved and it contradicts both what the clerks said and what the police reported. Look at this, from the opinion:
Dilley‟s incident report stated that Mocek committed
a “disturbance by Disorderly Conduct” at the Albuquerque Sunport, refused to identify himself,
and refused to comply with a criminal trespass order. Complaint ¶ 68, at 15. Dilley‟s statement
related that Mocek was “causing a disturbance by yelling” and that Mocek had refused to lower
his voice even though Dilley ordered him to lower his voice four times. Id. ¶ 68, at 15. De La
Pena‟s incident report relates that TSA agents informed the AAPD officers that Mocek was
“causing a disturbance and yelling at officers.” Id. ¶ 70, at 16 (internal quotation omitted).
Audio and video recording from the incident reveal that Dilley never asked Mocek to lower his
voice, and that Mocek remained clam throughout the incident. See id. ¶ 69, at 15. Video
recording also indicates that passengers continued to pass through the checkpoint during the
incident without hesitation. See id. ¶ 71, at 16, ¶ 73, at 17.
So, the clerks lied, the police lied, the police arrested Mocek based on their and the clerks' lies, and the judge lied in order to deny relief to Mocek.
Last edited by Carl Johnson; Jan 27, 2013 at 8:52 pm Reason: Added additional material
Jan 27, 2013, 10:29 pm
#39
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I won't waste time with digging up cites about the general state of the police and judiciary in NM. I've lived and spent enough time there. Like most long time residents, I shake my head in disgust, but not in surprise.
Last edited by essxjay; Mar 22, 2015 at 11:27 am Reason: reference to deleted post
Jan 27, 2013, 10:59 pm
#40
Join Date: Oct 2006
Posts: 1,830
"Judge Dismisses Defendants in Passenger’s Suit," by Scott Sandlin, Albuquerque Journal, January 22, 2013, page C1, http://www.abqjournal.com/main/2013/...gers-suit.html
Browning’s opinion said the federal officers are entitled to dismissal because Mocek had not shown First Amendment violations when they ordered him to stop filming. The officers would be entitled to qualified immunity, anyway, Browning said, because the “alleged right to gather news at an airport screening checkpoint and to record police activity in public are not clearly established.”
I suppose that means they haven't read the Justice Dept's brief to the Baltimore Police, or perhaps the 1st circuit's decision on Glik.
Jan 28, 2013, 2:36 am
#41
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The X-ray dose from these devices has often been compared in the media to the cosmic ray exposure inherent to airplane travel or that of a chest X-ray. However, this comparison is very misleading: both the air travel cosmic ray exposure and chest Xrays have much higher X-ray energies and the health consequences are appropriately understood in terms of the whole body volume dose. In contrast, these new airport scanners are largely depositing their energy into the skin and immediately adjacent tissue, and since this is such a small fraction of body weight/vol, possibly by one to two orders of magnitude, the real dose to the skin is now high.
http://www.npr.org/assets/news/2010/05/17/concern.pdf
Jan 28, 2013, 9:27 am
#42
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Perfectly acceptable to "attack" a judge in terms of questioning his/her finding but I agree that emotional and ill-considered name-calling is counter-productive. In partial defense, use of the term corrupt does not necessarily imply criminality. IMO this particular judge has been corrupted (seduced, persuaded or blinkered if you prefer) by the overarching security[sic] doctrines proclaimed by the TSA et al. and, as suggested above, was unable or unwilling to set aside his prejudice.
I haven't examined all the citations in his judgement but at first glance there do appear to be some which are irrelevant, at best.
I haven't examined all the citations in his judgement but at first glance there do appear to be some which are irrelevant, at best.
Jan 28, 2013, 9:47 am
#43
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I love this sentence from the article (bolding mine):
Browning’s opinion said the federal officers are entitled to dismissal because Mocek had not shown First Amendment violations when they ordered him to stop filming. The officers would be entitled to qualified immunity, anyway, Browning said, because the “alleged right to gather news at an airport screening checkpoint and to record police activity in public are not clearly established.”
I suppose that means they haven't read the Justice Dept's brief to the Baltimore Police, or perhaps the 1st circuit's decision on Glik.- Mocek's rights to film are not "clearly established."
- By filming he thus "distracted" the TSA which is "creating a disturbance."
- The TSA thus were correct to call the police.
- The police were thus correct to conclude Mocek was creating a disturbance.
In real life, I've found the actions and words of TSA employees to be more "distracting" to each other than anything else I happened to have seen at check points, but that wouldn't count, would it?
Jan 28, 2013, 9:54 am
#44
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•Mocek's rights to film are not "clearly established."
•By filming he thus "distracted" the TSA which is "creating a disturbance."
•The TSA thus were correct to call the police.
•The police were thus correct to conclude Mocek was creating a disturbance.
I like it. I like it. The circularity, the illogic. Get cops dumb enough and insecure enough, combine them
with candy-@ss judges, and you can thereby make *any* behavior illegal.
Brilliant!
•By filming he thus "distracted" the TSA which is "creating a disturbance."
•The TSA thus were correct to call the police.
•The police were thus correct to conclude Mocek was creating a disturbance.
I like it. I like it. The circularity, the illogic. Get cops dumb enough and insecure enough, combine them
with candy-@ss judges, and you can thereby make *any* behavior illegal.
Brilliant!
Last edited by yandosan; Jan 28, 2013 at 10:38 am
Jan 28, 2013, 10:41 am
#45
Join Date: Feb 2011
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At times the reasoning appeared circular to me, but in fairness I suppose one step leads to the next.
In real life, I've found the actions and words of TSA employees to be more "distracting" to each other than anything else I happened to have seen at check points, but that wouldn't count, would it?
- Mocek's rights to film are not "clearly established."
- By filming he thus "distracted" the TSA which is "creating a disturbance."
- The TSA thus were correct to call the police.
- The police were thus correct to conclude Mocek was creating a disturbance.
In real life, I've found the actions and words of TSA employees to be more "distracting" to each other than anything else I happened to have seen at check points, but that wouldn't count, would it?
- -Mocek's rights to opt-out/travel without id/travel with medical liquids/request assistance/point out TSA rules from the website/etc./etc. are not "clearly established."
- -By opt-out/travel without id/travel with medical liquids/request assistance/point out TSA rules from the website/etc./etc. he thus "distracted" the TSA which is "creating a disturbance."
- -The TSA thus were correct to call the police.
- -The police were thus correct to conclude Mocek was creating a disturbance.