Transit & the Fourth Amendment
Posted by Fred Jandt
Editor, Mass Transit magazine
The Washington Metropolitan Transportation Authority (WMATA) stated they would be starting random bag checks at Metro stations. Since the announcement, people have been up in arms. I’ve read complaints ranging from why didn’t WMATA ask for opinions before they installed the program and am I going to get locked up for bringing a sandwich on the train to they are denying me my Fourth Amendment rights.
My response to this — so what!
I know I am going to bring down the ire of a certain segment of the populace with that comment, but really, this seems much ado about nothing.
How many of us have at one point in our lives been asked a question by a police officer? One Saturday morning I was heading out way too early and went to get a soda from the fridge in my garage. When I walked out, I was blinded by a police officer shining a light at me. He wanted to know what I was doing coming out the side door of a garage in the dark at 4 a.m. I just told him this was my garage and my soda — and I was probably brusque with him because, well it was my property. My anger quickly dissipated to gratitude when I found out he was in the area because one of my neighbors had their garage broken into that night.
If a police officer called you over as you were entering a transit station and asked where you were going, what would you do? Hey, I would tell him the truth. Contrary to popular mythology, most police officers are decent folks just trying to earn a living like the rest of us. The stereotypical jerk is few and far between, with more stories of them than actual sightings — everyone has got one.
The folks over at Flex Your Rights, “disputes the notion that citizens must prove their innocence in order to use public transit. Moreover, we have serious concerns that this territorial expansion of police search powers is doing grave damage to people’s understanding of their Fourth Amendment protections against unreasonable searches and seizures.â€
Really? Who is asking anyone to prove their innocence? As for territorial expansion, this program is already in place at Amtrak and several other transit authorities.
Flex Your Rights is also distributing a flyer asking, “Do you fear that we will have fewer and fewer public spaces where we can be free from random searches?†and “Do you think that this program is another step towards the creation of a ‘police state’?â€
Huh? A police state? One of transit’s biggest problems is simply the ability to secure it properly, especially for large systems. How do you keep hundreds of miles of rail monitored at all times? How do you keep hundreds of stations safe?
Transit’s openness is its greatest weakness. Let’s take the recent Metrolink tragedy for example. If the accident had been caused by a bomb that caused the train to run the red light and crash into the other train, what would have happened? Everyone would have asked how something like this could have happened. Where was the transit security? Why weren’t bags being checked?
One of the other arguments is that this system (random checking) will be ineffectual and it is a waste of time and money. Held up as an example of what should be done is the Broken Windows Theory, which basically says if minor crimes are left unchecked then they will grow in number, spawning major crimes and so on. To prevent this, a greater police force should be installed to crackdown on all the rules infractions, thereby preventing anything major (such as a bomb) from happening. Isn’t that a police state?
Whenever something like this comes up, people pull out their handy abridged copies of the Bill of Rights and cry foul not stopping to think of the context those amendments were written in and how they are much larger in scope than this.
The Fourth Amendment was conceived during the years leading up to the American Revolution to prevent the abuse of general warrants being used to raid houses looking for people and/or material viewed as seditious England (and really the King).
You know what, if a cop kicks in my front door with a bogus warrant searching for “seditious†materials, then I am going to cry foul. But asking people politely if they could look in their bags — and mind you they can refuse, they just can’t enter the system if they do — isn’t the same thing. That’s not an abuse of rights, that’s trying to make the system safe in the best way they have available to them.
Transit always gets stiffed on this sort of thing. While we have to virtually strip down to get on a plane these days (even if it means missing your flight), no one argues about it. Sure there is a reticent amount of grumbling, but I don’t hear people screaming about their rights being abused when airlines started making everyone take their shoes off to get on a plane. Or remove all liquids from their carry-ons. Or take out their laptops from their bags. Or remove any sort of coat. Or belt.
Before we cry foul, why not give it a chance. If the number of people missing their trains exponentially increases over the next few months, then this isn’t working. If there are numerous complaints about abuse, then this isn’t working.
But to start a campaign about this before the program even begins is ridiculous.
Thanks for reading the MT Position updated every Friday,
October 31st, 2008 at 10:50 am
If you rode the San Diego Metro lines while you were at APTA, the first thing you noticed were the abundance of police officers and the uniformed metro-hosts and hostesses for lack of a better word.
They were a great screening device. They engaged you with a smile, asked where you were going, asked to see your ticket, noticed if you were slightly impaired from your evening of clienting, rode on the trolleys with you, they were everywhere.
You felt safe.
Poeple who feel safe will ride transit.
People who do not feel safe will not ride transit.
So when in DC, show them what’s in your bag and answer their questions. It ain’t a big deal
October 31st, 2008 at 11:00 am
Well, Fred, you’re right, my ire is raised . . . very high. Granted I come from a blue, no, DARK blue state, and it’s nearly liberal enough for me, but I just DO NOT WANT TO BE HASSLED BY A COP! And by the way, no, I’ve never been asked a question by a policeman. At all. Ever. [Traffic tickets excluded.] Yes, I want the police to be there when I need them, but I do not want them interfering with me and my enjoyment of my life. You forget, Life, Liberty and the pursuit of happiness. I want to be able to pursue my happiness without being observed, checked on, asked any questions or any other “protective measures” performed for (on?) me, thank you very much.
And yes, this IS a big deal. One step at a time, our rights to be let alone are being eroded. You know, it’s likely that this blog is read at some point by someone who’s been hired to “protect the homeland.” Does it need to be? NO! This is civil discourse among intelligent people. There is no need for any security to be checking things out.
I could go on …
October 31st, 2008 at 11:01 am
Well stated.
October 31st, 2008 at 11:04 am
The airlines analogy is interesting. I was speaking to a military pilot the other day and he commented on the similarities in responsibility for safety that land-bound bus drivers share with airline “bus drivers”. Yes, there is less training involved and if we crash, we usually don’t burst into flames. Still, we don’t have additonal staff to manage our riders, we don’t thoroughly screen our passengers, and if we are even five minutes late, somebody wants to talk to our boss. Anything that can be done to improve the confidence that airline travel is safe should be reasonably applicable to assure other forms of public transportation is safe as well. I’m with you, thanks for asking.
October 31st, 2008 at 11:50 am
We live in a hurried world with everything now having to be done yesterday. With the airlines, we know of the problems and schedule accordingly. When we drive we know how long the trip should take 95% of the time and scheduled accordingly. With public transit, we know the schedule and arrive at the bus stop or station with the minimum of wait time with any delays meaning we missed or bus or train.
Do TSA checks really make us safer to fly or is it a PR scheme to give the impression of making us feel safer to fly?
We are no so afraid of a person taking a picture of any building or train that police HASSLE us now for taking pictures. Most all this information and pictures can be found now on the Internet. A true terrorist that wants current pictures can get this information with “hidden†cameras, such as cell phones that are getting better resolution.
Does this extra money for this type of security improve transportation and makes it that much more safer as all or major cities are getting crushed by gridlock?
However, the major problem with RANDOM SEARCHES is profiling, plain and simple – since we all have our own prejudices.
October 31st, 2008 at 11:55 am
I disagree with the author, and the distiinguished Director Hingson (who is the boss, BTW) His busses are never late, always on time, and have a kick-ass paint job, with no ads. Way to go Tom!!!!
Those who give up liberty for security have none of either.
And I complain all the time about the silly shakedown I expereince getting on an airplane.
Anything MIGHT happen anywhere. Checks of bags do nothing save for make us (save for me, maybe Tom, though) feel better. A determined crook or miscreant can get by our “feelgood” systems with ease.
Now, if you want to bring in the Israeli’s, and their profiling, then I will believe you are “doing something”, other than stating, “I am the gub’mint” and here to help you and keep you safe.
Heck, the place I feel safest in that whacky town is in the Metro.
Mark
October 31st, 2008 at 11:58 am
Asking someone a few questions is in my opinion not harassment. If it is making things any safer is another question.
When I visited Israel over 20 years ago, I was chastised by a bus driver for letting my lunch sit on the seat next to me instead of holding it in my lap. He wasn’t concerned about taking up two seats, but was wondering if it was mine or left by a previous passenger and could be possibly be a bomb. Over there everyone is on the look out for potential hazards and no one complains about it. Who knows how many lives this type of vigilance has saved?
October 31st, 2008 at 12:14 pm
To borrow from Fred’s earlier argument re Fourth Amendment, “pursuit of happiness” has an historical context, too. And it is not even close to the modern-day infantile notion that I am entitled to do whatever I want because it makes ME happy… It had a lot more to do with pursuing the good of my neighbor and family free from state coercion dictating, restricting or preventing the exercise of my benevolence. Happiness had a rich holistic definition in those days, a far cry from the shallow application we now see in our typically narcissistic worldview.
Food for thought: Would you be happier with a non-searched bag on a train victimized by a terrorist bomb, or with the knowledge that bag searches are helping to deter such an incident?
October 31st, 2008 at 12:20 pm
The police officer questioning you at your garage had a measure of safety attached. There was a crime recently right next door.
If a crime had just occurred at the transit station, then yes I might accept being questioned. But randomly questioning me as part of this country’s terrorist fears?? No thank you.
We (somewhat) accept airline screenings, as even a small issue can effect everyone on the vehicle. And, as we unfortunately say, the plan itself can be used as a weapon. On transit, neither of these two apply. just because transit ‘looks like’ airline transportation, doesn’t mean it should deserve the same treatment.
Most cities have tunnels and bridges, where a bomb would cause as much or more physical and human damage than a transit incident would cause. Yet if the police were to stop and query every car adn every drive, society would be up in arms over police violations. Yet I’m supposed to accept searches and querys on transit?
October 31st, 2008 at 12:45 pm
It would not surprise me at all if the Flex Your Rights people turned out to be affiliated with the ACLU. This whole notion of our rights being infringed on is starting to get REALLY OLD. Many of these arguments are just a front to keep a bunch of left-wing overpaid lawyers employed. They will always take something decent and reasonable and turn it into something outrageous. What in the world is wrong with decent, hard working law enforcement asking someone one or two questions? What is the problem with some random bag searches? If this helps to prevent one tragedy or save one life, it’s worth it.
This is not the same world as it was a decade ago. We need to ALL grow up and realize that.
October 31st, 2008 at 1:47 pm
Good for you for raising this important issue. However, it seems to me that you are a bit too ready to lessen constitutional rights in the face of the exigencies of the moment. The Fourth Amendment protection against unreasonable (note the key modifier) searches and seizures is considerably broader than protection from having our homes intruded upon by law officers, whether they be soldiers of the crown or local police. There is a long history of judicial development of the scope of the Fourth Amendment protection. And that protection is not to be lightly diminished in times of fear or danger. In fact, that is just when constitutional amendments are most necessary. We in the DC area saw this recently when it was disclosed that Maryland State Police had instituted an uncover surveillance program aimed at “terrorists†that ended up spying on environmentalists and anti-death-penalty advocates. Watchdog groups such a “Flex Your Rights†perform a valuable service by speaking out for constitutional rights, because so many people are too willing to be silent on the subject.
On the other hand, the Fourth Amendment is not absolute in its scope. It doesn’t prohibit searches and seizures by private persons. It is also flexible enough to permit “reasonable†searches and seizures by governmental officials. Thus, it has always been interpreted to permit governmental searches “for cause†when facts justify them.
In fact, searches in transit systems when there has been demonstrated a credible threat of terrorism have been upheld in recent years by federal courts invoking the well established “special needs†doctrine. On this basis, a legal challenge to random searches of bags of persons seeking to enter the New York City subway was tossed out. And, in a separate federal court of appeals decision, a random screening system that involved potential searches of passengers’ carry-on bags conducted by a Lake Champlain ferry system complying with its Coast Guard-approved vessel security plan (required by the Maritime Transportation Security Act) passed muster.
October 31st, 2008 at 2:38 pm
This is just another “Nail in the coffin” for mass transit.
Public transportation has been targeted by terrorists in the Mid East and Europe and travel by train is getting to be more like airlines in so far as security checks are concerned.
Mass transit is already too slow and a hassle to use. Accordingly, people here in the U.S. don’t want any more emcumberances in their travel and police check points and searches in train stations are just another incentive to get in their cars and drive to where they want to go.
October 31st, 2008 at 3:04 pm
The key word in the 4th amendment is “unreasonable” with regard to searches and seizures.
Anyone who wishes to use to use any transit system is required to comply with all applicable rules, regulations and tariffs for the transit agency. (Such wording is located somewhere on the ticket/pass/farecard that the pasenger uses.) These are standard terms of carriage for any transit system and if the passengers do not want to follow them, then transit is not for them.
As long as the applicable “rules, etc.” that are passed by the ruling Board for a transit agency state that compliance with such searches are required, then informed passengers have no cause to complain.
The “unreasonable” part enters the equation when such searches are based on “fiat” or edict – it looks (rightly or wrongly) as reactionary, rather than taking action to safeguard tha passengers using the transit system.
November 1st, 2008 at 7:33 am
Makes a lot of sense to me, Fred. One of your better editorials.
November 4th, 2008 at 8:42 am
Screening passengers with personal searches seems more annoying, more expensive, and less effective than our other options to protect our railway and highway systems and passengers. Passengers can be screened with non-invasive means like metal detectors and mechanical “sniffers”; cameras and alert personnel can prevent dangerous situations. Added security personnel and monitering devices on transit can provide security against all problems without offending anyone.
Land-based transportation is vulnerable along the right-of-way. Mass injuries can be caused by any intruder on the tracks or the highway, not just by passengers. Vagrants and wildlife live in tunnels; trespassers walk on train tracks; highway bridges literally fall apart from disrepair; trains run though signals and switches. All of these problems can be addressed by passive monitoring and additional security personnel.
So, what purpose does it serve to screen the passengers?
November 7th, 2008 at 12:27 pm
I’ve been looking forward to seeing what else was posted here. Some of the remarks are interesting.
Mark Manhkey says “Those who give up liberty for security have none of either.” Sure, an aphorism, but one that it completely accurate. Ed Welch: “However, it seems to me that you are a bit too ready to lessen constitutional rights in the face of the exigencies of the moment.” That’s right, don’t be so anxious to yield your rights for temporary security.
Someone mentioned “happiness” which was in my earlier post; yes I realize that there is la-di-da happiness, and there is happiness which is the satisfaction with your life. There is also the happiness that you can do whatever you want (within the limits of law) whenever you want and not have to fear that someone will be after you because you’ve done something “wrong.” “Wrong” in quotes because it’s THEIR version of what is wrong. “Right” and “Wrong” are personal judgements.
Context is crtical. In Israel, there is sufficient levels of terror around that having uniformed officers checking things out on a daily basis is not so unreasonable (there’s that word again). But riding the average transit system, you’re not very likely to be in any danger that’s going to be found by looking in a bag. People get shot on buses. Do they “carry” in a bag? Not very likely. And if there is likelihood of that kind of incident, then a uniformed officer riding the bus may be sufficient to make it unlikely to happen. Without searches.
Robert P.: “It would not surprise me at all if the Flex Your Rights people turned out to be affiliated with the ACLU. This whole notion of our rights being infringed on is starting to get REALLY OLD.” So, Robert, exactly what is wrong with the ACLU? I do happen to be a member, and I signed up when my transit system began randomly checking bags of people already on the system, and there was little-to-zero opportunity to opt-out by leaving. You should look into what the ACLU does. I can’t endorse every single action they take, but generally, they are making sure your rights (which you sure would not like to lose) are enforced. And your use of “affiliated” is bothersome. Do you think they’re really all the same office? Organizations can and often do have similar, compatible and reinforcing views, and work together. For Flex Your Rights and the ACLU to work together is no more offensive than The Heritage Foundation working with the Catholic Church to get the life-begins-at-conception written into Supreme Court decisions. Or any number of groups working together to tell gays they cannot marry. Both ideas infringe on the rights of people to be just plain LEFT ALONE! I’d rather have the Flex Your Rights and ACLU working, together or not, protecting my right to be left alone.
December 10th, 2008 at 11:09 am
A Washington State Ferry was held at the Bremerton dock after reports of a terrorist threat on Tuesday, Nov. 18, 2008. BREMERTON, Wash. – Washington state ferries between Seattle and Bremerton are moving
March 5th, 2009 at 5:34 pm
I recently had a cop tell me in a menacing tone “You are not as free as you think you are.” I was shocked. What purpose does such a statement serve? To me the answer is fear. This cop was trying to tell me that he had the power to do whatever he wanted and I had no right to argue. I highly disagree. Too often our rights are trampled in the name of security. The Bill of Rights was written for a reason, to protect us from power-hungry law enforcement and government. If we do not exercise our rights, we will lose them.