Constitutional law was put through the ringer Wednesday evening when the American
Constitution Society held a moot court session to hear a case that has been filed with the Ninth
Circuit Court of Appeals.
The case concerns John Gilmore, a
California man who refused to show
identification at an airport before boarding a flight to Washington, D.C., when he was asked to do so by airport officials.
Gilmore said he was not allowed to read the law that mandated identification for traveling purposes and filed suit in U.S District Court, where a judge dismissed it.
Gilmore filed his case before the Ninth Circuit Court of Appeals on Aug. 16, 2004, with former Attorney General John Ashcroft as the defendant. Gilmore’s legal counsel expects an appeal date to be set by late spring or early summer.
Gilmore’s counsel is using opportunities like moot courts to prepare for a court battle they
expect to be quite challenging.
A five-person panel acting as the Ninth Circuit Court of Appeals heard arguments from James Harrison and William Simpich, co-counsel to Gilmore, and subjected the two to a round of
intense questioning that panel member Craig Weinerman said should be expected from the
appellate court.
Weinerman said he and fellow panel member Bryan Lessley, both assistant federal public
defenders, have argued many cases in front of the appellate court and wanted to prepare Gilmore’s counsel for the intense scrutiny they will
soon face.
“Sometimes that’s the way you get treated,” Weinerman said. “You’ve got to know what your weak points are.”
The case has many aspects that could
be examined and argued for or against,
and Harrison and Simpich said they are
always grateful for an opportunity to practice arguing such points.
“This case has so many different ways that it can go that just doing this is a big help,” Harrison said, who earned his undergraduate degree from the University in 1994. “The judge can take you in so many directions; that’s why we’re practicing.”
The panel — made up of Weinerman, Lessley, University law professor Keith Aoki, University political science professor Julie Novkov and a third-year law student — focused on search and seizure laws when questioning Harrison and Simpich about the case.
Many questions focused on whether the right to travel in the United States is an actual right and whether anonymity when traveling should be synonymous with such a right.
Harrison focused his argument around the lack of available
documentation for the law that mandates identification be shown when traveling.
“Our best argument is the secret law argument,” Harrison said.
Simpich argued as acting defense attorney that the identification requirement is in place because it is a fundamental way of ensuring weapons and other dangerous items will not make it onto an airplane.
Panel members questioned the constitutionality of the government’s “No-Fly Lists,” lists that Simpich said are part of the reason for mandatory showing of identification.
But Harrison argued that searches can be conducted to locate any weapons, and it is not necessary to know the name of the individual being searched, saying Gilmore’s right to travel in the country had been hampered by the identification laws.
“The best thing is to recognize that ID-based security systems don’t work,” Harrison said.
Panel members questioned where the right to travel anonymously
existed in the constitution and also questioned reasons behind the
government’s need for identification of all travelers.
Novkov said the lack of administrative procedures about reviewing the right to travel makes the case especially difficult to win because nothing
concerning the right is on record.
“Gilmore’s going to have an uphill battle,” Novkov said.

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