Mocek v. City of Albuquerque (3 F. Supp. 3d 1002, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the City of Albuquerque Defendants’ Motion to Dismiss, filed Feb. 1, 2013 (Doc. 54)(“City MTD”). The Court held a hearing on July 12, 2013. The primary issues are: (i) whether to apply law-of-the-case doctrine to dispose of the City MTD using the findings and conclusions of the Court’s earlier Memorandum Opinion and Order, filed January 14, 2013, 2013 WL 312881 (Doc. 49)(“MOO”); (ii) whether Plaintiff Phillip Mocek has alleged a plausible claim that Defendants Albuquerque Aviation Police Department (“AAPD”) officers Robert Dilley, Landra Wiggins, and Julio De La Pena (collectively, “the AAPD officers”), in their individual capacities, violated his rights under the First and Fourteenth Amendments to the Constitution of the United States when they allegedly refused to permit him to video record the official, conduct of Transportation Security Administration (“TSA”) agents at an airport security screening checkpoint, investigated him, and ultimately arrested him for refusing to produce identification, and whether they can be held liable under 42 U.S.C. § 1988 over a defense of qualified immunity; (iii) whether Mocek has alleged a plausible claim that the AAPD officers, in their individual capacities, violated his rights — to freedom from unreasonable search and arrest and excessive use of force — under the Fourth and Fourteenth Amendments to the Constitution when they allegedly demanded that Mocek produce identification and arrested him when he declined, and whether they can be held liable under § 1983 over a defense of qualified immunity; (iv) whether Mocek has alleged a plausible claim that the AAPD officers committed false arrest under § 1988 or New Mexico state law; (v) whether Mocek has alleged a plausible claim that the AAPD officers committed malicious abuse of process, a tort under New Mexico state law; (vi) whether Mocek has alleged a plausible claim that the AAPD officers violated his rights under the Fifth and Fourteenth Amendments to the Constitution when they allegedly repeatedly demanded that Mocek identify himself, and whether they can be held liable under § 1983 over a defense of qualified immunity; (vii) whether Mocek has alleged a plausible claim that the AAPD officers violated his rights under the Sixth and Fourteenth Amendments to the Constitution when they allegedly attempted to destroy a videotape that became exculpatory evidence at Mocek’s criminal trial in New Mexico state court, and whether they can be held liable under § 1983 over a defense of qualified immunity; (viii) whether Mocek has alleged a plausible claim that Defendant City of Albuquerque can be held liable under § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), over a defense of qualified immunity, for having in place a policy, practice, or custom that subjected Mocek to a violation of his constitutional rights; and (ix) whether Mocek is entitled to declaratory relief from Defendant AAPD, Defendant Marshall Katz in his official capacity as the Chief of the AAPD, the City of Albuquerque, and the AAPD officers (collectively, “the City Defendants”) in their official capacities. Having already dismissed all of Mocek’s claims against TSA agents Jonathan Breedon, Gerald Romero, and Anthony Schreiner (collectively, “the Federal Defendants”) in its MOO, the Court will now grant the City Defendants’ MTD in all respects and dismiss all remaining claims. The Court will not apply law-of-the-case doctrine, because of the interlocutory nature of the MOO, but will decide the City MTD on the merits without deferring to the findings and conclusions of the MOO. Mocek has not sufficiently alleged that the AAPD officers violated his rights under the First Amendment, because the Supreme Court of the United States has recognized that airports — much less airport security screening checkpoints — are nonpublic forums for First Amendment purposes, and thus subject to “reasonable time, manner, and place restrictions,” meaning that Mocek’s conduct was not constitutionally protected for the purposes of a First Amendment retaliatory arrest claim. Additionally, although such restrictions must be viewpoint neutral, there is no plausible allegation that the City Defendants discriminated against Mocek on the basis of his viewpoint, which he did not express to either the TSA agents or the AAPD officers. Even if the AAPD officers’ actions violated the First Amendment, they are entitled to qualified immunity, because Mocek’s alleged right to gather news at an airport screening checkpoint, and to record police activity in public, are not clearly established. The facts alleged in the Complaint do not support Mocek’s claim of excessive force under the Fourth Amendment, because it says nothing about any force used against Mocek, let alone excessive force, and the Court will dismiss that claim. Mocek has also not sufficiently alleged an unreasonable search or arrest under the Fourth Amendment, or a false arrest under § 1983, because the AAPD officers had reasonable suspicion to demand that Mocek produce identifying documents, and, upon his failure to comply, probable cause for his arrest. Mocek’s claims under state law for false arrest and malicious abuse of process require that the arrest was made without probable cause, and, thus, fail along with the Fourth Amendment claim. Mocek’s Fifth Amendment claim fails, because the only alleged attempt that the AAPD officers made to prompt Mocek to inculpate himself was their request that Mocek produce identification, which, as a matter of law, is insufficient to constitute a violation of the Fifth Amendment. Mocek’s claim that the City Defendants violated his Sixth Amendment right to a fair criminal trial also fails, because Mocek received a fan-trial and was acquitted of all charges. There can be no municipal liability on the part of the City of Albuquerque: even if the City of Albuquerque had an illegal policy, practice, or custom in place, it could not be the proximate cause of any injury to Mocek, because the AAPÍ) officers did not violate Mocek’s rights. Last, Mocek is not entitled to declaratory relief, because he suffered no violation of his constitutional or federal statutory rights. The Court, therefore, grants the City MTD.

FACTUAL BACKGROUND

Mocek is an “outspoken advocate of free software, open standards, government transparency, drug policy reform, and civil liberties.” Complaint for Damages, In-junctive Relief, and Declaratory Relief [and] Demand for Jury Trial ¶ 1, at 1-2, filed Nov. 14, 2011 (Doc. l)(“Complaint”). Mocek began to “harbor reservations” regarding the TSA’s passenger identification procedures in 2007 and from that time did not always show documentation of identity when flying on commercial airlines. Complaint ¶ 1, at 2; id. ¶ 27, at 6. “Typically, once TSA staff realized he did not intend to present identification, Mocek would be diverted to a separate line to await assistance and additional questioning from another TSA agent.” Complaint ¶ 28, at 6. Mocek would usually be allowed to board his flights without showing identification, although he noticed that his person and his bags were searched more thoroughly when he did not show identification than when he did. See Complaint ¶ 1, at 2 id. ¶ 29, at 6-7.

Around mid-2008, the TSA announced that passengers who “willfully refused” to show identification would not be allowed to pass through screening checkpoints, but that passengers who had misplaced their identification or whose identification were stolen would be allowed to pass through if they complied with alternative procedures. Complaint ¶ 30, at 7.

In 2009, Mocek researched the TSA’s regulation and policies regarding photography, video recording, and filming at airport screening locations, and learned that the TSA does not prohibit any of these actions at a screening location. See Complaint ¶ 2, at 2; id. ¶ 32, at 7-8. He was informed, through sources he believed to be expounding TSA policy, that TSA does not allow passengers to take pictures of the monitors at checkpoints, but that taking pictures was generally permitted so long as it did not interfere “with the screening process or slow[ ] things down.” Complaint ¶ 32, at 8. A TSA employee at the Albuquerque International Sunport Airport (“Albuquerque Sunport”) informed Mocek that there are no state or local laws prohibiting photography in public areas of the Albuquerque Sunport, but the TSA employee also advised Mocek that he should contact the Albuquerque Sunport’s public affairs staff in advance to coordinate photography. Mocek believed that these statements “represented official TSA rules and policies.” Complaint ¶ 37, at 9. When Mocek inquired regarding the necessity of coordinating photography in advance, the same TSA employee informed Mocek that advance coordination of photography was a “local practice and not available in writing,” but that advance coordination would allow TSA to inform law enforcement officers at the checkpoint of the photography. Complaint ¶ 39, at 9. The TSA employee informed Mocek that the TSA screening checkpoint at the Albuquerque Sunport is a “restricted area and just for ticketed passengers.” Complaint ¶ 39, at 9 (internal alterations omitted). The TSA employee later informed Mocek, after another inquiry from him, that the information the employee provided was “a recommendation” and that the TSA “only eneourage[s] individuals to contact the TSA in advance so we can facilitate the photography.” Complaint ¶ 40, at 9. When Mocek asked if he could disregard the employee’s statement that advance coordination is “required,” the employee reiterated that her statement was a recommendation and that advance coordination was encouraged only so that TSA “can facilitate the photography.” Complaint ¶ 41, at 9-10. Mocek believed, from this exchange, that “neither TSA nor state or local laws prohibited him from photography or filming at the TSA checkpoint” at the Albuquerque Sunport, other than filming the TSA monitors. Complaint ¶ 42, at 10.

On November 15, 2009, Mocek attempted to fly out of the Albuquerque Sunport without providing identification. Although he possessed a Washington state driver’s license, he had given his license to his travelling companion, Jesse Gallegos, before approaching the TSA screening checkpoint. See Complaint ¶ 43, at 10. Mocek expected that he might encounter the “new identification procedure,” which TSA announced in 2008, and was concerned that he might face retaliation for his “willful ... refusal to show documentation of identity.” Complaint ¶ 3, at 2.

When Mocek reached the TSA podium, he presented his boarding pass to a TSA employee, but did not present identification. He informed the TSA employee that “it was his understanding that he was not required to produce any such documents, only his boarding pass.” Complaint ¶ 44, at 10. The TSA employee told Mocek to stand in a different line nearby, where Mocek waited. See id. ¶ 44, at 10.

TSA agent Breedon then approached Mocek and asked him if he had any other forms of identification, such as a credit card, which might help to identify him, and Mocek responded that he did not believe he was required to produce identification. Breedon informed Mocek that he was correct and asked Mocek if he could verify his identity in another way. Mocek stated that he would not provide any form of identification, because he believed he was not required to provide identification. Breedon told Mocek that he would contact the TSA’s Security Operations Center, which would attempt to verify Mocek’s identity, and that if the Security Operations Center could not verify Mocek’s identity, he would not be allowed to board the plane. See Complaint ¶ 45, at 10-11. None of the TSA agents present indicated that they had any intent to involve law enforcement at that time. See Complaint ¶ 45, at 11.

Mocek then began using his camera to record on video “what he perceived to be an atypical, alternative identification policy.” Complaint ¶ 46, at 11. Breedon told Mocek to stop filming, but Mocek responded that he did not believe that filming in a “publicly accessible” area was illegal. Complaint ¶ 46, at 11. Breedon attempted to take Mocek’s camera, and told him that no photography or videotaping was permitted at the checkpoint. See Complaint ¶ 46, at 11. Breedon then called for police assistance. See Complaint ¶ 47, at 11.

TSA agents Romero and Schreiner approached Breedon and Mocek. See id. Romero “ordered Mocek repeatedly to put down the camera and attempted to grab either Mocek or the camera.” Id. ¶ 48, at 11. Mocek “remained calm and restrained” throughout the incident, while the TSA agents became increasingly agitated. Complaint ¶ 5, at 2. Mocek did not consent to being searched. See Complaint ¶ 71, at 16.

The AAPD officers arrived soon thereafter. The TSA agents complained to the AAPD officers that Mocek would not cease filming, was “taking pictures of all of [them],” and was “causing a disturbance.” Complaint ¶ 49, at 11-12. AAPD officer Dilley told Mocek to comply with the TSA agents’ instructions and that, if he did not, Mocek would be escorted out of the airport. Mocek asserted that he was not causing a commotion, was not attempting to hinder TSA agents from doing their job, and was complying with all TSA rules and regulations. See Complaint ¶ 51, at 12. When Dilley again informed Mocek that he could either comply or be escorted out of the airport, Mocek stated that he “did not believe there was a rule that barred him from using a camera in publicly accessible areas of the airport.” Complaint ¶ 52, at 12. AAPD officer Wiggins informed Mo-cek that he could not film at the screening checkpoint, but Mocek asserted that he had looked into the legality of his actions and that he could film. Wiggins responded that “you can be arrested, then you can check into it more.” Complaint ¶ 52, at 12.

The AAPD officers then attempted to escort Mocek out of the airport, and Mo-cek stated that he did not understand why he was being escorted out, but he did not refuse to comply with the AAPD officers’ order that he leave. See Complain ¶ 53, at 12; id. ¶ 69, at 16. Dilley stopped attempting to escort Mocek out of the airport and asked to see Mocek’s identification. Dilley informed Mocek that he would need to see his identification or else Mocek would be arrested for concealing his identity. See Complaint ¶ 54, at 12. Mocek stated that he did not have identification to show Dilley. Dilley then informed Mocek that he was part of a criminal investigation for disturbing the peace and was required to show identification. Mocek asserted that he had not disturbed the peace, and when asked again by Dilley to provide identification, Mocek stated that he wanted to talk to an attorney. See Complaint ¶ 54, at 12. Dilley then arrested Mocek. See Complaint ¶ 55, at 13. Mocek was in a publicly accessible area of the Albuquerque Sunport during these interactions with TSA agents and AAPD officers. See Complaint ¶ 5, at 1.

Dilley and Wiggins then walked Mocek to the AAPD office at the Albuquerque Sunport, where they placed him in an airport holding cell. See Complaint ¶ 57-67, at 13. The holding cell was approximately four by eight feet in size. See Complaint ¶ 57, at 13. The officers searched Mocek’s belongings. See Complaint ¶ 57, at 13. About three hours later, Dilley drove Mo-cek to the Metropolitan Detention Center. See Complaint ¶¶ 62-65, at 14. 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. Complaint ¶ 68, at 15. AAPD officer De La Pena’s incident report relates that TSA agents informed the AAPD officers that Mocek was “causing a disturbance and yelling at officers.” Complaint ¶ 70, at 16 (internal quotation omitted). Audio and video recording from the incident reveal that Dil-ley never asked Mocek to lower his voice, and that Mocek remained calm throughout the incident. See Complaint ¶ 69, at 15. Video recording also indicates that passengers continued to pass through the checkpoint during the incident without delay. See Complaint ¶ 71, at 16; id. ¶ 73, at 17.

Mocek was charged on four counts for this incident: (i) disorderly conduct; (ii) concealing identity with intent to obstruct, intimidate, hinder or interrupt; (iii) resisting, obstructing or refusing to obey an officer; and (iv) criminal trespass. See Complaint ¶ 7, at 8. On January 20, 2011, a jury in Bernalillo County (New Mexico) Metropolitan Court, Case No. CR 2573709, tried Mocek. See Complaint ¶ 86, at 20. Mocek was able to restore his video footage, which had been deleted from his camera while he was at the Detention Center and his belongings remained at the Albuquerque Sunport, and used that footage in the state court trial. See Complaint ¶ 9, at 3; id. ¶¶ 83, 85, at 20. On January 21, 2011, a jury acquitted Mocek of all four charges. See Complaint ¶ 9, at 3; id. ¶ 88, at 21.

PROCEDURAL BACKGROUND

Mocek asserts that his Complaint arises under: (i) the United States Constitution; (ii) the Civil Rights Act, 42 U.S.C. § 1983; (iii) The Declaratory Relief Act, 28 U.S.C. §§ 2201-02; and (iv) Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (“Bivens ”). Complaint ¶ 11, at 3. Mocek asserts that the Court has jurisdiction over his Complaint under 28 U.S.C. §§ 1331, 1332,1343, and 2201, and has supplemental jurisdiction over his state law claims under 28 U.S.C. § 1367(a). See Complaint ¶ 12, at 3-4. Mocek asserts that venue is proper, because the acts set forth in the Complaint occurred in Bernalillo County. See Complaint ¶ 13, at 4 (citing 28 U.S.C. § 1391(b), (e)). Mocek also asserts that he has complied with the New Mexico Tort Claims Act, NMSA 1978 § 41-4-16, by “presenting a government claim within 90 days of the date upon which the cause of action accrued.” Complaint ¶ 14, at 4.

Mocek brought claims against the following Defendants: (i) the City of Albuquerque; (ii) the AAPD; (iii) Katz, in his official capacity as Chief of Police at the AAPD; (iv) Breedon, in his individual capacity and his official capacity as a TSA agent; (v) Romero, in his individual capacity and his official capacity as a TSA agent; (vi) Schreiner, in his individual capacity and his official capacity as a TSA agent; (vii) Dilley, in his individual capacity and his official capacity as an AAPD officer; (viii) Wiggins, in his individual capacity and his official capacity as an AAPD officer; (ix) De La Pena, in his individual capacity and his official capacity as an AAPD officer; and (x) certain unnamed Does, who Mocek alleges are responsible in some manner for his injuries and damages. See Complaint ¶¶ 16-25, at 4-5. The Federal Defendants, Breedon, Romero, and Schreiner, filed a Memorandum in Support of Individual Federal Defendants’ Motion to Dismiss, filed June 1, 2012 (Doc. 25-l)(“Federal MTD”), and were dismissed from the case on January 14, 2013. See MOO at 1-2,123.

Mocek asserts that the “Defendants’ unlawful and unconstitutional conduct resulted in Mocek’s arrest, detention, seizure and attempted destruction of his property, institution of baseless criminal proceedings against him, and other financial and emotional distress.” Complaint ¶ 89, at 21. He asserts that he incurred “in excess” of $34,000.00 in legal fees for his legal defense to the criminal charges against him. Complaint ¶ 90, at 21. Mocek also asserts that the Defendants have “set a dangerous standard[,] and sent a message to individuals” flying through the Albuquerque Sun-port that “they should be fearful of exercising their right to interstate air travel without having to provide documentation of identity and their right to photograph and film in publicly accessible areas of the airport,” because TSA agents or AAPD officers may conspire to retaliate against individuals so acting, and may arrest such individuals. Complaint ¶ 91, at 21. Mocek asserts that the Defendants’ conduct “in threatening arrest and prosecution would chill a person of ordinary firmness from continuing to engage in lawful, constitutionally protected activity.” Complaint ¶ 91, at 21.

Mocek brought eight claims, six of which survive to be heard here. See MOO at 123. He asserted as Count I an action under Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (“Bivens ”) against the TSA agents and Does 1-25, in their individual capacities, for having violated his First Amendment rights. See Complaint ¶¶ 92-93, at 21-22. Mocek asserts that these Defendants’ “policies, practices, and conduct in unlawfully ordering Plaintiff to cease video and audio recording” of them, and then summoning law enforcement officers, resulted in his unlawful arrest, the search and seizures of his camera, an attempted destruction of the “evidence” on his camera, and the filing of criminal charges against him, all of which “were intended to and did interfere with Plaintiffs constitutionally protected right to record audio and video where such recording was permitted.” Complaint ¶ 93, at 21-22. This Count was dismissed. See MOO at 123.

Mocek asserts as Count II an action under 42 U.S.C. § 1983 against the AAPD officers and Does 1-25 in their individual capacities for the violation of his First and Fourteenth Amendment rights. Mocek asserts that these Defendants’ “policies, practices, and conduct,” which Mocek asserts includes his unlawful arrest, the search of his camera, and an attempt to destroy “evidence” by deleting the contents of his camera, “were intended to and did interfere with Plaintiffs constitutionally protected right to record audio and video where such recording was permitted, and chill Plaintiff from such activity in the future.” Complaint ¶ 95, at 22. This Count survived the Federal MTD.

Mocek asserted in Count III that the TSA agents and Does 1-25 violated his Fourth Amendment rights, and Mocek brings this claim under Bivens against the TSA agents in their individual capacities. See Complaint at 22. Mocek asserts that these Defendants’ “policies, practices, and conduct in summoning law enforcement,” which Mocek asserts resulted in him being subjected to excessive force, the search of his person, the seizure of his camera, and an attempt to destroy “evidence,” “in willful, wanton, and reckless disregard” of his rights, violated his right to be free from unreasonable search and seizure, and from excessive force. Complaint ¶ 97, at 23. This Count was dismissed. See MOO at 123.

Mocek asserts in Count IV that the AAPD officers and Does 1-25 violated his Fourth and Fourteenth Amendment rights, and he brings this claim under 42 U.S.C. § 1983. Mocek argues that these Defendants’ “policies, practices, and conduct in seizing and arresting Plaintiff without reasonable suspicion or probable cause,” and these Defendants’ use of excessive force, searching his person and seizing his camera, and attempting to destroy “evidence” by deleting the contents of his- camera, were actions done in “willful, wanton, and reckless disregard of Plaintiffs rights,” and violated Mocek’s rights to be free from unreasonable search and seizures and excessive force under the Fourth Amendment. Complaint ¶ 99, at 23. This Count survived the Federal MTD.

Mocek asserts as Count V a false arrest claim against the AAPD officers and Does 1-25 in their individual capacities for damages that he incurred as a result of these Defendants’ “policies, practices, and conduct,” which included seizing and arresting him knowingly without probable cause or legal justification. Complaint ¶ 101, at 23-24. This Count survived the Federal MTD.

Mocek asserts as Count VI a claim against the AAPD officers and Does 1-25 for malicious abuse of process under New Mexico state law, on the grounds that these Defendants instituted criminal judicial proceedings against Mocek in misuse of the legal process by “filing a criminal complaint against [him] without probable cause, through the providing of information while knowing it to be false, in furtherance of the illegitimate end of retaliating against [him] for his video and audio recording of them.” Complaint ¶ 103, at 24. This Count survived the Federal MTD.

Mocek asserts as Count VII a claim against the City of Albuquerque for damages under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and under 42 U.S.C. § 1983. See Complaint at 24. Mocek asserts that the City of Albuquerque “through its policymakers had in force and effect a policy, practice, or custom to prohibit lawful photography and filming in publicly accessible areas of the Albuquerque airport, even though no statute or ordinance prohibits such photography and filming.” Complaint ¶ 105, at 24. Mocek asserts that the City of Albuquerque also had in place a policy, practice, or custom “to require individuals to provide documentation of identity even when providing such documentation is not required.” Complaint ¶ 105, at 24. Mocek alleges that the City of Albuquerque had a policy, practice, or custom to “arrest or threaten to arrest individuals who seek to engage in such lawful actions.” Complaint ¶ 105, at 24. Mocek asserts that the City of Albuquerque had a “policy, practice, or custom” of “engaging] in retaliatory behavior” against individuals who “seek to exercise their lawful right to use cameras in areas where no legitimate time, place, and manner restrictions were in place.” Complaint ¶ 106, at 25. Mocek asserts that the City of Albuquerque had a “policy, practice, or custom to fail to properly discipline, train, and supervise City police officers ... in the legality of not having to provide documentation of identity, in the legality of filming in the Albuquerque airport, and in the illegality of retaliating against individuals who seek to exercise their lawful rights.” Complaint ¶ 107, at 25. Mocek asserts that the City of Albuquerque’s policy makers had “actual or constructive knowledge of these unlawful practices yet failed to take any reasonable or adequate steps to remedy them.” Complaint ¶ 108, at 25. Mocek asserts that the City of Albuquerque led its law enforcement officers to believe that “misconduct would be tolerated and that allegations of abuse of constitutional rights would not be investigated, making it foreseeable that officers would violate individuals’ rights in precisely the manner in which Plaintiffs rights were violated.” Complaint ¶ 109, at 25. Mocek asserts that the City of Albuquerque’s policy makers were “deliberately indifferent to this risk.” Complaint ¶ 109, at 25. Mocek asserts that the City of Albuquerque’s “policies, practices, or customs were the moving force behind Plaintiffs constitutional injuries, false arrest, and malicious abuse of process, causing damages to Plaintiff.” Complaint ¶ 110, at 25. This Count survived the Federal MTD.

Mocek asserts as Count VIII a claim for declaratory relief under 28 U.S.C. §§ 2201-2202 against “all defendants in their official capacities.” Complaint ¶ 112, at 26. Mocek asserts that an “actual, present, and justiciable controversy” exists between him and the Defendants regarding their “rights and duties with respect to the Defendants’ conduct described herein.” Complaint ¶ 112, at 26. Mocek asserts that the Defendants deny that their conduct violates his rights under the Constitution and the “laws of the United States,” and Mocek asserts that he is afraid that he will “again be subject to such unlawful and unconstitutional actions.” Complaint ¶ 112, at 26. Mocek “seeks a judicial declaration that Defendants’ conduct deprived Plaintiff of his rights under the Constitution and the laws of the United States.” Complaint ¶ 112, at 26. The Federal Defendants were dismissed from this Count, but it survived the Federal MTD as to the City Defendants. See MOO at 1-2, 123.

At a much later stage in the case — in the opposition brief to this motion — Mocek purported to amend his Complaint to add claims against the AAPD officers for violations of his rights under (i) the Fifth and Fourteenth Amendments to the Constitution and (ii) the Sixth and Fourteenth Amendments to the Constitution. See Opposition to Defendants’ Motion to Dismiss and Request for Leave to File Amended Complaint at 23, filed Mar. 2, 2013 (Doc. 57)(“Opposition”). Mocek conceded in the hearing on this motion that he had not followed proper procedure for amending the Complaint, but the Court indicated that it would nonetheless rule on the claims on the merits. See Transcript of Hearing at 19:16-17 (Simpich), taken July 12, 2013 (“2013 Tr.”); id. at 23:19-23 (Court).

Mocek requests the following relief: (i) “a judicial declaration that Defendants’ actions as alleged in this Complaint violated the First and Fourth Amendments of the United States Constitution;” (ii) “a court order enjoining Defendants from prohibiting the use of cameras and other recording devices in publicly accessible areas of the Albuquerque airport where no legitimate time, place, and manner restrictions are in place,” and prohibiting the Defendants from retaliation “against individuals who seek to exercise their right to use such cameras and other recording devices;” (iii) “a court order requiring Defendants to undertake training and other prophylactic measure to ensure Defendants’ conduct is not repeated in the future;” (iv) compensatory, nominal, and special damages; (v) prejudgment and post judgment interest; (vi) costs and expenses, under 42 U.S.C. § 1988 and 28 U.S.C. § 2412; and (vii) “other relief as is just and proper.” Complaint at 26-67. Mocek also demands a jury trial. See Complaint at 27.

Mocek takes issue with certain statements he asserts Breedon and Schreiner made regarding the incident. See Complaint ¶ 74, at 17. He does not provide a date for either statement. Neither does he quote more than a few phrases from either statement; instead, Mocek includes a summary of the statements. See Corn-plaint ¶75, at 17-18; id. ¶77, at 18-19. Mocek asserts that “Breedon’s statement importantly indicates that he did not request police involvement until he asked Mocek to cease using his camera.” Complaint ¶ 76, at 18. Mocek quotes Bree-don’s statement that the situation “escalated again,” after the AAPD officers arrived. Complaint ¶ 75, at 18. Mocek asserts that Breedon fails to mention that “much of the escalation was due to the conduct of the officers and not Mocek, who throughout remained calm and composed.” Complaint ¶ 76, at 18. Mocek quotes from Schreiner’s description of Mocek as “hostile” and “belligerent,” and Schreiner’s statement that Mocek took photographs “in a threatening manner.” See Complaint ¶ 77, at 18. Mocek asserts that video footage of the incident does not support Schreiner’s description of his actions. He also asserts that the statement does not explain how Mocek took pictures in a “threatening manner.” Complaint ¶ 78, at 19.

The TSA agents moved the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, for the entry of an order dismissing Mocek’s claims against them for failure to state a claim upon which relief can be granted. See Federal MTD. In that motion, Mocek’s claims against the City of Albuquerque, the AAPD, and members of the AAPD were not at issue. See Federal MTD at 1. In support of the motion, the Federal Defendants referred to their memorandum of law and two exhibits. The TSA agents attached to their MTD statements from Breedon and Schreiner regarding the incident. See Statement from Jonathan Bree-don; Statement from Anthony M. Schreiner. The TSA agents relied on these statements in their MTD to relate that Breedon “indicated he would contact the TSA’s Security Operations Center to attempt to verify the Plaintiffs identity so that he could fly,” Federal MTD at 13 (citing Statement from Jonathan Breedon at 1), and to assert that the Complaint “demonstrates that the TSA defendants were not responsible for the complained-of injuries, namely the Plaintiffs arrest, the handling of his property, or the filing of criminal charges,” Federal MTD at 16 (citing Statement from Anthony M. Schreiner at 2).

Mocek opposed the motion. See Plaintiffs [Amended] Opposition to Individual Federal Defendants’ Motion to Dismiss, filed June 30, 2012 (Doc. 30)(“Federal Response”). The TSA agents contended that they are entitled to qualified immunity on both of the constitutional claims against them. The TSA agents asserted that the Court should dismiss his First Amendment retaliation claim, because they “acted reasonably, under the circumstances, in requesting that the Plaintiff cease recording their activities at the airport’s security checkpoint,” which the TSA agents assert is a nonpublic forum. Federal MTD at 2. The TSA agents also contended that they did not cause the injuries Mocek alleges resulted from the violation of his First Amendment rights — specifically, the TSA agents argued that they did not cause Mocek to be arrested, or his person or property to be searched. The TSA agents further asserted that “it was not clearly established that Plaintiff had a First Amendment right to video record TSA agents conducting alternative screening procedures to verify his identity at a security checkpoint” and they are thus entitled to qualified immunity on this claim. Federal MTD at 2. Regarding Mocek’s Fourth Amendment claims, the TSA agents asserted that Mocek has not shown that his Fourth Amendment rights were violated, because the Complaint does not allege that the TSA agents “caused or participated in his seizure or the search, and alleged mishandling, of his property.” Federal MTD at 2. The TSA agents asserted that “ ‘summoning law enforcement,’ is not a clearly established violation of the Plaintiffs Fourth Amendment Rights.” Federal MTD at 2 (quoting Complaint ¶ 97, at 23).

To allege a violation of Mocek’s rights under the First Amendment, the TSA agents argued that Mocek must establish:

(1) that the plaintiff was engage in constitutionally protected activity; (2) that the defendant’s action caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action as substantially motivated as a response to the plaintiffs exercise of constitutional protected conduct.

Federal MTD at 10-11 (quoting Klen v. City of Loveland, 661 F.3d 498, 508 (10th Cir.2011)). The TSA agents asserted that Mocek must allege facts which allow the Court to “draw the reasonable inference that defendant is liable for the misconduct alleged,” and that a complaint which includes facts “ ‘merely consistent with’ a defendant’s liability ... stops short of the line between possibility and plausibility of entitlement to relief.’ ” Federal MTD at 11 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal citations omitted).

The TSA agents contended that no court has recognized Mocek’s alleged “constitutionally protected right to record audio and video.” Federal MTD at 11 (quoting Complaint ¶ 93, at 21-22). The TSA agents further contended that, even if Mo-cek has a right to the activity alleged, the restrictions imposed by the TSA agents were reasonable and permissible under the First Amendment, and, further, that “there is no causal connection between the Federal Defendants’ actions and the injury he claims resulted from his engagement in protected activity.” Federal MTD at 11.

The TSA agents asserted that “publicly-owned airports such as Albuquerque International Sunport are nonpublic fora.” Federal MTD at 11 (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992)). The TSA agents asserted that restrictions on speech at an airport terminal “need only be reasonable.” Federal MTD at 11 (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. at 683, 112 S.Ct. 2701). The TSA agents further asserted that, “ ‘when the government permits speech on government property that is a nonpublic forum, it can exclude speakers on the basis of their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum.’ ” Federal MTD at 12 (quoting Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 189, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007)).

The TSA agents asserted that the United States Congress created the TSA to maintain “ ‘security in all modes of transportation’” and that this charge requires TSA to “ ‘provide for the screening of all passengers and property ... that will be carried aboard a passenger aircraft.’ ” Federal MTD at 2-3 (quoting 49 U.S.C. § 114(d); 49 U.S.C. § 44901(a)). The TSA agents contended that the screening requirement requires TSA agents to confirm “that the traveler who presents himself at the security checkpoint shares the same identity as the individual named on the boarding pass in order to ensure that all passengers have been appropriately vetted against federal watch lists pursuant to 49 U.S.C. § 44903(j)(2)(C).” Federal MTD at 3. The TSA agents asserted that this screening must take place before boarding, and that the screening is “critical to TSA’s ability to efficiently and effectively carry out its duties, and is [a] mandatory [precondition for boarding and flying on commercial airlines.” Federal MTD at 3 (citing 49 U.S.C. § 44901(a)). The TSA agents also asserted that passengers are prohibited from interfering with screening personnel who are performing their duties at an airport screening checkpoint. See Federal MTD at 3-4 (citing 49 C.F.R. § 1540.109).

The TSA agents pointed out that Mocek willfully refused to provide identification to TSA agents at the Albuquerque Sunport. See Federal MTD at 4; id. at 13. The TSA agents also pointed out that Mocek inquired about the legality of taking photographs at security checkpoints at a TSA website before the incidents in the Complaint occurred. See Federal MTD at 4; id. at 12-13. The TSA agents asserted that a TSA website informed Mocek that “there was no general prohibition against taking photographs ‘as long as you’re not interfering with the screening process or slowing things down.” Federal MTD at 4 (quoting Complaint ¶¶ 31-32, at 7-8). The TSA agents also pointed out that Mocek was informed by a TSA agent that the security checkpoint is a “restricted area ... just for ticketed passengers,” and that he should coordinate in advance with TSA agents if he wished to film at or near the screening checkpoint, which the TSA agents pointed out Mocek did not do. See Federal MTD at 4-5; id. at 13 (citing Complaint ¶ 32, at 7-8; id. ¶ 37, at 9; id. ¶¶ 39-41, at 9-10).

The TSA agents asserted that, during the incident, Breedon informed Mocek that he would “ ‘need to stop filming,’ ” but that Mocek continued to film and stated that he believed that filming was not illegal. Federal MTD at 5 (quoting Complaint ¶ 46, at 11). The TSA agents pointed out that Mocek repeatedly refused to stop filming, despite Romero asking Mocek to stop. Federal MTD at 5 (citing Complaint ¶¶ 48-48, at 11-12; id. ¶ 69, at 15-16). The TSA agents pointed out that, when AAPD officers were allegedly summoned to the scene, the AAPD officers indicated to Mo-cek that he was causing a commotion, but Mocek continued to record. See Federal MTD at 6 (citing Complaint ¶¶ 49-52, at 11-12). The TSA agents pointed out that AAPD officers informed Mocek that he was part of a criminal investigation and required him to produce his identification, and that AAPD officers ultimately arrested Mocek for concealing his identity. See Federal MTD at 6-7 (citing Complaint ¶¶ 54-55, at 12-13; id. ¶ 57, at 13).

The TSA agents asserted that these actions were reasonable responses to Mo-cek’s “attempt to create a disturbance by willfully refusing to provide his identification and filming the alternative screening process that ensued.” Federal MTD at 13. The TSA agents asserted that checkpoint disturbances can be dangerous situations and that a disturbance at a checkpoint could allow others to evade security. They also asserted that federal law allows TSA agents to summon “a checkpoint screening supervisor and law enforcement officer” when a disturbance occurs. Federal MTD at 13-14 (quoting 67 Fed.Reg. 8340, 8344)(citing 49 C.F.R. § 1542.215). The TSA agents asserted that Mocek’s “refusal to provide identification and his video recording of the screening process raised legitimate concerns about transportation security.” Federal MTD at 14. The TSA agents also contended that a “reasonable TSA officer could not responsibly assume that the Plaintiff was neither attempting to evade the security system nor testing the system responses for future operations.” Federal MTD at 14. The TSA agents also asserted that they must have discretion to stop a passenger from recording security procedures, so as to protect the public from passengers with malicious intent, even though filming the procedures is not prohibited. See Federal MTD at 14. The TSA agents asserted that Breedon took reasonable action under the circumstances by attempting to end Mocek’s disruption and by requesting the AAPD officers’ assistance. See Federal MTD at 15.

The TSA agents argued that Mocek has failed to show that their actions would “chill a person of ordinary firmness from continuing to engage in a protected activity.” Federal MTD at 15 (citing Klen v. City of Loveland, 661 F.3d 498 (10th Cir.2011)). The TSA agents asserted that the Complaint shows that they are not responsible for the injury that Mocek allegedly suffered through his arrest, from the handling of his property, and from the filing of criminal charges against him. See Federal MTD at 16 (citing Complaint ¶¶ 49-67, at 11-15; id. ¶ 83, at 20; id. ¶ 93, at 21-22). The TSA agents asserted that the Complaint clearly sets forth that Dilley, and not any of the TSA agents, “made the decision to arrest the Plaintiff.” Federal MTD at 16 (citing Complaint ¶¶ 51-55, at 12-13).

The TSA agents also asserted that Mo-cek has failed to allege a Fourth Amendment violation, because “the Plaintiffs recitation of the facts does not allege that TSA defendants personally participated in or directed the police defendants in this case to search or seize the Plaintiff or his belongings.” Federal MTD at 18 (citing Complaint ¶ 97, at 23). The TSA agents pointed out that Mocek has not alleged that they used any force against him, searched him or his camera, or seized his camera. See Federal MTD at 18. The TSA agents asserted that Mocek has not provided any facts indicating that they used any “excessive force, or any force,” in the incident, and contend that facts do not support the allegations in Counts III and IV. Federal MTD at 18 n. 10. The TSA agents asserted that, according to the Complaint, their involvement with Mocek ended as soon as the AAPD officers arrived. See Federal MTD at 18-19 (citing Complaint ¶¶ 51-52, at 12; id. ¶ 54, at 12). The TSA agents asserted that the United States Court of Appeals for the Eighth Circuit has found that a defendant who summons the police is not liable for any alleged Fourth Amendment violations committed by police who arrest a plaintiff, because the action of summoning the police was not the proximate cause of the plaintiffs claimed injuries. See Federal MTD at 19 (citing Green v. Nocciero, 676 F.3d 748, 755 (8th Cir.2012)). The TSA agents contended that, similarly, they did not cause the Fourth Amendment violations of which Mocek complains. See Federal MTD at 19-20.

The TSA agents also asserted that the rights which Mocek alleges were violated are not clearly established. The TSA agents asserted that an allegedly violated right must be clearly established under case law that holds the same right was violated in a similar context. See Federal MTD at 20 (citing Saucier v. Katz, 533 U.S. at 209, 121 S.Ct. 2151). The TSA agents contended that, if “officers of reasonable competence could disagree on the issue, a right is not clearly established.” Federal MTD at 21 (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

The TSA agents contended that there is no case law precedent for a factual scenario such as that which Mocek alleges, and the TSA agents asserted that the absence of case law precedent demonstrates that the right that Mocek alleges was violated was not clearly established. See Federal MTD at 21. The TSA agents also asserted that case law “clearly indicates that an individual does not have the right to remain outside the attention of law enforcement when the individual is acting in a manner that sparks suspicion in a reasonable officer’s mind.” Federal MTD at 21 (citing United States v. Cothran, 286 F.3d 173, 176 (3rd Cir.2002)). The TSA agents further asserted that the “question of whether there is a clearly established right to videotape police conduct in a public forum or public street ... is unsettled in the Circuits.” Federal MTD at 22. The TSA agents pointed out that, while the United States Court of Appeals for the First Circuit and the United States Court of Appeals for the Eleventh Circuit have recognized the right to videotape police conduct in public, the United States Court of Appeals for the Third Circuit and the United States Court of Appeals for the Fourth Circuit have held that the right is not clearly established. See Federal MTD at 22 (citing Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000); Glik v. Cunniffe, 655 F.3d 78, 82-84 (1st Cir.2011); Kelly v. Borough of Carlisle, 622 F.3d 248, 251 (3rd Cir.2010); Szymecki v. Houck, 353 Fed.Appx. 852, 853 (4th Cir.2009)).

The TSA agents additionally asserted that the line of cases addressing whether there is a clearly established right to videotape the police in public is distinguishable from the right which Mocek asserts was violated, because: (i) “airport security checkpoints are not public fora and First Amendment activity at such checkpoints is subject to reasonable restrictions;” and (ii) “TSA agents are not law enforcement officials and the Plaintiff conceded that the law enforcement authority exercised in his case that allegedly gave rise to the constitutional violations was performed by the police and not the TSA agents.” Federal MTD at 23. The TSA agents asserted that videotaping TSA agents at a security checkpoint is similar to videotaping police officers’ conduct while at a traffic stop, which the Third Circuit held was not a clearly established constitutional right. See Federal MTD at 22 (citing Kelly v. Borough of Carlisle, 622 F.3d at 251). The TSA agents asserted that videotaping TSA agents at a security checkpoint is unlike videotaping police from a distance in a public park, which the First Circuit found was a clearly established right. See Federal MTD at 22 (citing Glik v. Cunnijfe, 655 F.3d at 85). The TSA agents further argued that the right is not clearly established in the Tenth Circuit, because there is no decision on point from the United States Court of Appeals for the Tenth Circuit or from the Supreme Court, and there is as split of authority in other circuits. See Federal MTD at 24 (citing Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). The TSA agents asserted that the “fact that there is disagreement [among] the judges makes it clear that qualified immunity on the Plaintiffs First Amendment claim is appropriate for TSA defendants.” Federal MTD at 24.

The TSA agents similarly asserted that the Fourth Amendment right which Mocek alleges was violated — to be free from the TSA agents “summoning law enforcement” — is not clearly established, and, further, the TSA agents contended that their actions were “within the boundaries of acceptable constitutional behavior.” Federal MTD at 25-27 (citing Complaint ¶ 97, at 23). The TSA agents asserted that the “vast majority of airport search cases involve challenges to the actions of the officers who actually conducted the searches,” but that Mocek has rather alleged claims against the TSA agents based upon actions with which they “had nothing to do.” Federal MTD at 25 (emphasis in original). The TSA agents contended that, although there is “no clearly established weight of authority from other courts concerning the ‘summoning’ of law enforcement,” nor is there Supreme Court or Tenth Circuit precedent on point, “courts that have considered the issue have found no constitutional violation when the police make their own independent decision to arrest or search.” MTD Moo. at 25 (citing Green v. Nocciero, 676 F.3d at 750). The TSA agents asserted that Mocek has challenged only the TSA agents’ “ability to contact law enforcement upon being confronted with a passenger who raises security concerns by refusing to comply with the agency’s screening procedures or follow the direction of the TSA agents.” Federal MTD at 26. The TSA agents contended that, because “it is not clearly established that referring a passenger who refuses to follow the directions of TSA agents to local law enforcement for further investigation violates the Fourth Amendment,” the TSA agents are entitled to qualified immunity. Federal MTD at 26.

Lastly, the TSA agents contended that Mocek is not entitled to declaratory relief that his constitutional rights were violated, because, the TSA agents asserted, his constitutional rights were not violated. See Federal MTD at 26-27.

Mocek responded to the Federal MTD on June 30, 2012. See Federal Response. Mocek first contended that the TSA agents “mischaracterize[d]” and “recast” the allegations in his Complaint. Federal Response at 2. Mocek asserted that he did not “premeditate” to video record his interactions with TSA agents and, rather, asserts that he began to use his camera at the Albuquerque Sunport only “after it became clear that Albuquerque TSA agents were subjecting him to an ‘atypical, alternative identification policy.’ ” Federal Response at 2 (quoting Complaint ¶ 46, at 11). Mocek asserted that he was unaware that attempting to pass through security without identification would “result in him being denied access to the secure areas of the airport, including departure gates,” because he had previously successfully flown without identification. Federal Response at 2 (citing Complaint ¶¶ 27-28, at 6). Mo-cek also asserted that the Federal MTD falsely portrayed him “as a disorderly passenger intent on acting disruptively.” Federal Response at 3. Mocek asserted that, as set forth in the Complaint, he “at no time acted disruptively,” and was rather “calm and restrained” when law enforcement and TSA agents became increasingly agitated. Federal Response at 3 (citing Complaint ¶¶ 4-5, at 2; id. ¶¶ 69, 71-72, at 15-17). Mocek asserted that there is no evidence that he disturbed passengers. See Federal Response at 3. Mocek asserted that this re-characterization of his actions was an attempt by the Defendants to “falsely accuse Mocek of disorderly conduct,” the same charge of which a jury acquitted him in 2009. Federal Response at 4.

Mocek also asserted that the Complaint states a proper claim that the TSA agents violated his First Amendment rights. See Federal Response at 4. Mocek contended that, although the AAPD officers conducted the arrest and seizure, the TSA agents “must answer for the unlawful, unreasonable and unconstitutional order to cease recording events of public interest occurring in a public place.” Federal Response at 5. Mocek asserted that the TSA agents’ orders created a constitutional injury, and that his video recording was lawful, peaceful, and not causing a threat to any person. Mocek asserted that his injury was “compounded” when the TSA agents “enlisted the police to give force to their unconstitutional demand.” Federal Response at 5.

Mocek asserted that “a reasonable construction of the Complaint shows that the federal defendants caused plaintiff an injury that would chill a person of ordinary firmness from continuing to engage in that activity.” Federal Response at 8. Mocek asserted that the First Amendment protects the public’s right to gather information and that this protection extends equally to all citizens engaged in newsgathering. See Federal Response at 6-7 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 586-88, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); First Nat'l Bank v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); Houchins v. KQED, Inc., 438 U.S. 1, 11, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978)). Mocek asserted that intent is an element of a claim for retaliation against a plaintiffs expression of his or her civil rights, and that the TSA agents’ actions were “substantially — if not entirely — motivated by plaintiffs exercise of constitutionally protected conduct.” Federal Response at 7-8 (citing Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000); Lackey v. Cnty. of Bernalillo, 166 F.3d 1221 (10th Cir.1999) (unpublished table decision); Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir.1989)).

Mocek asserted that the TSA agents violated his First Amendment rights by attempting to stop his newsgathering, when Romero and Breedon “ordered Mo-cek to put down the camera and repeatedly tried to seize the camera.” Federal Response at 8 (citing Complaint ¶¶ 46, 48, at 11). Mocek asserted that his actions did not violate any law, regulation or policy, and he pointed out that he remained in the publicly accessible areas of the Albuquerque Sunport at all times of the incident. See Federal Response at 8. Mocek asserted that the TSA agents “intended to do everything they could to prevent” the exercise of his rights, and that the purpose of the TSA agents’ orders was to “not only chill but freeze his right to gather information about public officials conducting public duties in a public place.” Federal Response at 8. Mocek asserted that the TSA agents’ actions, as he alleges in the Complaint, would be sufficient to chill a plaintiff of ordinary firmness from continuing to video record at the screening checkpoint. See Federal Response at 9.

Mocek asserted that the TSA agents’ actions were “substantially motivated as a response” to his exercise of “constitutionally protected conduct.” Federal Response at 9. Mocek pointed out that he was ordered to “cease doing anything” only after he began filming the TSA agents’ activities. Federal Response at 9. Mocek asserted that he was falsely described as “hostile” and “belligerent,” and accused of “taking photographs in a threatening manner,” after he asserted that taking pictures was not prohibited, and that he was arrested for having recording the TSA agents’ activities. Federal Response at 9-10.

Mocek also asserted that his right to gather news is clearly established. See Federal Response at 10. Mocek asserted that TSA’s “own policy was clear and had been communicated in writing, directly to the Plaintiff, as well as to the general public: Recording was permitted.” Federal Response at 10. Mocek asserted that it was not only TSA’s policy to allow recording at security checkpoints, but also that the law permitted such recording. See Federal Response at 10. Additionally, Mocek asserted that the standard of “clearly established law” does not require a “case directly on point,” but rather that “a general constitutional rule can apply with obvious clarity to the specific conduct in question, even though such conduct has not previously been held unlawful.” Federal Response at 10-11 (citing Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.ed 1149 (2011); York v. City of Las Cruces, 523 F.3d 1205, 1212 (10th Cir.2008)). Mocek asserted that his Complaint sets forth the violation of a “general constitutional rule.” Federal Response at 11 (internal quotation omitted).

Mocek asserted that the First Circuit, Third Circuit, and the United States Court of Appeals for the Ninth Circuit have “held that recording police officers and officials in the course of carrying out their duties is directly protected by the First Amendment.” Federal Response at 11 (citing Glik v. Cunniffe, 655 F.3d at 82-84; Gilles v. Davis, 427 F.3d 197, 212 (3d Cir.2005); Fordyce v. City of Seattle, 55 F.3d 436, 438-39 (9th Cir.1995)). Mocek asserted that the “weight of circuit authority thus supports” his right to gather news via his video and audio recording. Federal Response at 11. Mocek asserted that the cases to which the TSA agents cite in support of their contention that the Circuits are split on the issue, Kelly v. Borough of Carlisle and Szymecki v. Houck, post-date the events of the Complaint, and thus do not demonstrate a split of circuit authority. See Federal Response at 11-12, 12 n. 5. Mocek further contended that these cases are factually distinguishable in that the First Circuit in Glik v. Cunniffe “rejected the use of these cases in the defendants’ attempts to support qualified immunity” and held that neither case was relevant “to the determination of whether the right to film police in the performance of their duties in a public place was clearly established.” Federal Response at 12. Mocek also noted that, in relying on Szymecki v. Houck, the TSA agents are relying on an unpublished authority which holds no precedential value. Lastly, Mo-cek contended that, in Glik v. Cunniffe, the First Circuit distinguished Kelly v. Borough of Carlisle, because the factual situation of attempting to videotape a police officer during a traffic stop was “worlds apart” from the arrest in Glik v. Cunniffe, which occurred in a public park, and because videotaping during the traffic stop raised concerns of public danger because of the moving vehicles. Federal Response at 12 (citing Glik v. Cunniffe, 655 F.3d at 84). Mocek also asserted that the court in Kelly v. Borough of Carlisle recognized a “broad right to videotape police,” save for when the videotaping was done without an expressive purpose. Federal Response at 12 (citing Kelly v. Borough of Carlisle, 622 F.3d at 262). Mocek asserted that he has an expressive purpose: “documenting what he perceived to be an atypical, alternative identification policy.” Federal Response at 12-13.

Mocek asserted that what the TSA agents refer to as a “lack of clarity” in this area is evidence that Mocek’s activity was constitutionally protected: “The ‘terseness’ and ‘brevity’ of First Amendment discussion in those cases that have recognized a right to film government officials or matters of public interest in public spaces is a result of the fundamental and virtually self-evident nature of the First Amendment’s protections in this area.” Federal Response at 13 (citing Glik v. Cunniffe, 655 F.3d at 85) (internal quotations omitted). Mocek contended that, in 2009, TSA agents “stated unequivocally that recording was permitted in public areas,” and that there is no confusion about the constitutionality or legality of Mocek’s conduct during the incident. Federal Response at 14.

Mocek also asserted that the Complaint clearly sets forth that the TSA agents violated his Fourth Amendment rights. See Federal Response at 14. Mocek contended that the TSA agents’ assertion that the AAPD officers were contacted because of Mocek’s lack of identification is “wholly inaccurate” and a direct contradiction of the Complaint. Federal Response at 15. Mocek asse