On December 22, 2015, the Tenth Circuit Court of Appeals decided Mocek v. City of Albuquerque [i], which serves as an excellent review of the law pertaining unlawful arrest and First Amendment claims.  The relevant facts of Mocek, taken directly from the case, are as follows:

Mocek has a practice of refusing to show his photo identification at airport security checkpoints. Prior to 2008, he was able to clear checkpoints by complying with alternative TSA identification procedures. In 2008, the TSA established a policy that those who “simply refuse[d] to provide any identification or assist transportation security officers in ascertaining their identity” would not be allowed past checkpoints, but that people whose I.D.s had been “misplaced” or “stolen” could get through if they cooperated with alternative procedures. App. 014.

In November 2009, Mocek arrived at the Albuquerque Sunport for a flight to Seattle. He gave his driver’s license—his only form of photo I.D.—to a travel companion who then went through security. At the security podium Mocek gave the TSA agent his boarding pass, but told him he did not have identification. The agent then directed him to a different line, where another TSA agent began an alternative identification procedure. This entailed asking Mocek for other proof of identity, such as a credit card. When Mocek did not comply, the agent told him he would contact the TSA’s Security Operations Center and that if the Center could not verify Mocek’s identity, Mocek would not be allowed through the checkpoint.

Believing these procedures were atypical, Mocek began filming the encounter. The agent ordered him to stop recording. When Mocek persisted, the agent summoned the police for assistance. While the police were on their way, two other TSA agents appeared. One of them ordered Mocek to stop filming and apparently attempted to grab the camera out of his hand. Mocek remained calm, but continued to record and would not identify himself.

When the police arrived, the agents told them that Mocek was “causing a disturbance,” would not put down his camera, and was “taking pictures” of all the agents. Id. at 018-19. One of the officers, Robert Dilley, warned Mocek that if he did not comply with the agents’ instructions, he would be escorted out of the airport. Another officer threatened to arrest Mocek. But Mocek continued to film and insisted that he was in compliance with TSA regulations. Officer Dilley eventually began ushering Mocek out of the airport, but having heard from another officer that Mocek refused to show his identification, he stopped and asked to see Mocek’s I.D. Officer Dilley told Mocek that he could be arrested if he did not present identification. Mocek responded that he did not have any identification on him. Officer Dilley then said that Mocek was under investigation for disturbing the peace and was required to present identification. Mocek declared that he would remain silent and wanted to speak to an attorney. Officer Dilley arrested him. At some point, the police confiscated the camera and deleted the video recordings. [ii]

Mocek was able to recover his video recordings and they were introduced at trial.  He was acquitted on all charges.  He then filed suit in district court for unlawful arrest under the Fourth Amendment and a First Amendment retaliation complaint in district court.  The district court granted qualified immunity for the arresting officer and all others.  Mocek appealed the grant of qualified immunity to the Tenth Circuit Court of Appeals.

On appeal, Mocek argued (1) that his arrest violated the Fourth Amendment because he claimed it was not supported by probable cause and (2) that his arrest was in retaliation for exercising his First Amendment right to video at an airport security checkpoint.

Regarding the first issue, the court stated:

As a general matter, a warrantless arrest is consistent with the Fourth Amendment when there is probable cause to believe the arrestee has committed a crimeStearns vClarkson, 615 F.3d 1278, 1282 (10th Cir. 2010). In New Mexico, it is a misdemeanor to “conceal[] one’s true name or identity . . . with intent to obstruct the due execution of the law or with intent to intimidate, hinder, or interrupt any public officer or any other person in a legal performance of his duty.” N.M. Stat. Ann. § 30-22-3. But an officer may not arrest someone for concealing identity without “reasonable suspicion of some predicate, underlying crime.” Keylon vCity of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008) (citing Brown vTexas, 443 U.S. 47, 52 (1979)). During an investigative stop supported by reasonable suspicion of a predicate, underlying crime, “it is well established that an officer may ask a suspect to identify himself.” Hiibel vSixth Judicial DistCourt, 542 U.S. 177, 186 (2004). [iii] [emphasis added]

Therefore, in order for the arrest for refusing to show identification to be a violation of New Mexico law, the officer must have had reasonable suspicion of some other crime as the underlying offense for which to compel the display of identification.

The court then set out to determine if the arresting officer had reasonable suspicion of some other crime as an underlying offense.  Reasonable suspicion is based on the totality of the circumstances.  The location of the incident, such as an airport checkpoint, can be considered as a factor.  In examining the facts of the case, the court noted that TSA officers told the officers that Mocek was creating a disturbance and they are entitled to rely upon their word.  Further, three TSA officers were dealing with Mocek, which was hindering operations in that checkpoint.  The court then stated:

From a reasonable officer’s perspective, Mocek’s filming may have invaded the privacy of other travellers or posed a security threat, insofar as it could have been used to circumvent or expose TSA procedures. The possibility that he had malign intentions raised the likelihood that his conduct would compromise orderly operations at the checkpoint. So did the chance that he was violating TSA regulations against interfering with security systems or personnel. See 49 C.F.R. §§ 1540.105(a), 1540.109. Mocek had been resisting the agents’ attempts to identify him, and it was clear that passengers who “simply refuse[d] to provide any identification or assist transportation security officers in ascertaining their identity” would not be allowed past checkpoints. App. 014.

Based on the face of the complaint, the information available to Officer Dilley indicated that Mocek had distracted multiple TSA agents, persistently disobeyed their orders, already caused a “disturbance” (according to the agents on the scene), and potentially threatened security procedures at a location where order was paramount. Under these circumstances, a reasonable officer would have had reason to believe, or at least investigate further, that Mocek had committed or was committing disorderly conduct. [iv]

Therefore, the court held that it was reasonable for the officer to stop Mocek and require him to identify himself.

The Fourth Amendment inquiry does not end there, however.  The court next had to determine if there was probable cause, or at least arguable probable cause, to arrest Mocek.  The court stated:

Probable cause exists if facts and circumstances within the arresting officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” York vCity of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (internal quotation marks omitted). This is true regardless of the officer’s subjective intentApodaca vCity of Albuquerque, 443 F.3d 1286, 1289 (10th Cir. 2006) (“The constitutionality of an arrest does not depend on the arresting officer’s state of mind.”); see also Whren vUnited States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). [v]

Arguable probable cause is present when another reasonable officer, faced with the same facts, could reasonably conclude that probable cause was present, even if it is later determined that probable cause was not present.

Mocek argued that while he did not produce identification, he did not have it with him to provide.  Further, he argued that the officers did not ask him for any other means to identify himself, and the statute does not criminalize not have an identification document, but rather concealing one’s name or identity.   The court of appeals acknowledged that even if the officer did not ask his name or attempt to identify him some other way, he was still entitled to qualified immunity, because he would have made a reasonable mistake of law.  The court stated:

In any event, New Mexico law is not entirely clear on whether someone in Mocek’s shoes might be required to answer basic questions about his identity, such as a request for his address. But Officer Dilley’s only request was for documentation, and failing to show documentation, in isolation, during an investigative stop for disorderly conduct might not amount to concealing one’s identity.

Nonetheless, Officer Dilley is entitled to qualified immunity. A reasonable mistake in interpreting a criminal statute, for purposes of determining whether there is probable cause to arrest, entitles an officer to qualified immunity. See Pearson, 555 U.S. at 231 (holding officials are entitled to qualified immunity for reasonable mistakes of law); Fogarty, 523 F.3d at 1159 (resolving qualified immunity question by reviewing whether state law under which suspect was arrested was ambiguous). Here, New Mexico courts had explicitly held “[i]dentity is not limited to name alone” and “failing to give either name or identity may violate the statute. [vi]

Thus, the court affirmed qualified immunity on the Fourth Amendment unlawful arrest claim.

Next, the court examined whether Mocek had a First Amendment right to film at the airport checkpoint.  Mocek argued that he did have such a right and he was arrested in retaliation for his exercise of that right.

The court stated:

To state a First Amendment retaliation claim, a plaintiff must allege “(1) he was engaged in constitutionally protected activity, (2) the government’s actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government’s actions were substantially motivated as a response to his constitutionally protected conduct.” Nielander vBdof CtyComm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009). [vii] [emphasis added]

The court of appeals noted that the airport is not considered a “public forum” for the purpose of the First Amendment.  As such, restrictions on expressive activity must only satisfy a requirement of reasonableness.  However, the court did not go so far as to decide whether it was permissible to film at an airport security checkpoint, because, even if it were permissible, the retaliation claim would still fail at the third element.  The third element would require the plaintiff to prove that the government’s actions in arrest him was substantially motivated in response to his protected speech.  However, the when Mocek was arrested, it was based on, at a minimum, arguable probable cause of various violations of New Mexico law.  Thus, qualified immunity is appropriate on the First Amendment claim, also.

Therefore, the Tenth Circuit affirmed the decision of the district court.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 14-2063 (10th Cir. Decided December 22, 2015)

[ii] Id. at 1-2

[iii] Id. at 8-9

[iv] Id. at 13

[v] Id. at 14

[vi] Id. at 18-19

[viii] Id. at 26

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