Network News

X My Profile
View More Activity
Share Stories  |  Traffic  |  Columns  |  Q&A     |  Get Gridlock:    Twitter |    Facebook  |     RSS   |  phone Alerts

Metro Riders Urged to Flex Rights

A dozen people handed out flyers to thousands of Metro riders on Wednesday afternoon urging them to defend their rights when transit police ask to search their stuff.

When I walked up to Steven Silverman, the 32-year-old leader of Flex Your Rights, he was trying to discuss the new search policy with three transit police officers near the top of the Dupont Circle Station escalators.

That looked like it was going to be a short conversation, so I asked Silverman to discuss with me what he and the group were trying to accomplish. Like the rest of us, he learned about the search policy only on Monday, the day the transit authority announced it would begin searching people's property before they could ride trains or buses.

As Silverman put it: "They just implemented the policy. They just dropped it."

The yellow cards that Silverman and the volunteers were handing out to Metro riders reprinted the 4th Amendment to our Constitution:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If James Madison was waiting for an Orange Line train from Vienna, he might boil that down to: The government better have a pretty good reason for wanting to know what's in my knapsack, because otherwise, it's none of their business. (Maybe first he'd ask why the escalator didn't work.)

Silverman's mission: Urge travelers to care about protecting their constitutional rights and to assert those rights when transit police stop them.

"In a free society, people shouldn't have to prove their innocence," he said. "Make a statement: Preserve your dignity and live your respect for the Bill of Rights. This is D.C., the capital of the free world."

Even though the search policy is in effect, he noted, people have the right to refuse the search. "If you choose to refuse, state very clearly to the officer, 'I do not consent to be searched,' then calmly exit Metro," Silverman said.

He urges people to resist the subtle pressure to comply when police ask to search their property. "Very few people actually refuse. Police don't tell you you have the right to refuse."

He thinks these random and occasional searches -- police might set up at one station and plan to search every 15th person approaching the fare gates -- don't meet the constitutional test of reasonableness and don't provide much of a security blanket for riders against terrorist.

"This won't do anything to protect us from the bad guys," he said. "This is not what a free society does."

By Robert Thomson  |  October 30, 2008; 8:02 AM ET
Categories:  Metro , Transportation Politics  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: New York Avenue Reopens
Next: Police Chase Accident Blocks I-395 HOV Ramp From Shirlington

Comments

Posted by: metroman1 | October 30, 2008 10:03 AM | Report abuse

I think large shopping bags should be printed and distributed with the words 'Law-Abiding U.S. Citizen and Commuter' on the sides.

I don't know how a 15 second search is going to accomplish much of anything beyond snarling pedestrian traffic in front of the gates, and of course providing the illusion that Metro is doing something about safety.

Posted by: zizzy | October 30, 2008 10:33 AM | Report abuse

Say "I refuse", walk out, wait a minute, walk back in. It's stupid.

Posted by: joemcg | October 30, 2008 10:51 AM | Report abuse

A few things...

The warrantless searches are based on a so-called "special need doctrine". The MacWade case cited by Metro offers this discussion:

The Fourth Amendment to the Constitution provides that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” As the Fourth Amendment’s text makes clear, the concept of reasonableness is the “touchstone of the constitutionality of a governmental search.” Bd. of Educ. v. Earls, 536 U.S. 822, 828, 153 L. Ed. 2d 735 (2002). “What is reasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 619, 103 L. Ed. 2d 639 (1989) (internal quotation marks omitted). As a “general matter,” a search is unreasonable unless supported “by a warrant issued upon probable cause . . . .” Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 103 L. Ed. 2d 685 (1989). However, “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Id.


However, “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” WHAT???? How about at least one of these?


The court found that NYPD subway searches passed muster, among other things, because "police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority.”

So what, exactly, is this formula and is it the same method that will be employed by Metro Transit Police? Without transparency, you cannot argue whether the searches are arbitrary and/or capricious.


I dunno, I'm just waiting for the first lawsuit to flesh it out. In the meantime, if I'm asked to submit to a so-called "consent" search, I'll readily decline the opportunity but counter that I would be perfectly willing to wait under the watchful eye of Transit Officers for MTP to obtain a warrant or to demonstrate probable cause. If that can be produced, I'll submit to the search, but then it wouldn't be a "consent" search. Yes of course it would take longer than simply submitting, but because I have the constitutional right to be secure in my person, house, papers, and effects, against unreasonable searches and seizures, I will not allow any official to violate my rights or deny my passage after I provide a sounder legal option.

We're not talking about a "plain sight" case. And if demanding a warrant gets me kicked out of Metro or arrested for trespassing, let the lawsuits fly.

Posted by: pjs0777 | October 30, 2008 12:00 PM | Report abuse

The proposed program is unconstitutional on its face. Seems like an injunction might be warranted. Any bored public interest lawyers out there?

Posted by: ews25 | October 30, 2008 12:33 PM | Report abuse

The proposed program is unconstitutional on its face. Seems like an injunction might be warranted. Any bored public interest lawyers out there?

Posted by: ews25 | October 30, 2008 12:33 PM | Report abuse

I've yet to read anything from Metro or WMATA that suggests how this intrusive new searching of bags, knapsacks etc., will protect anyone from those who would conceal harmful materials under their clothes or outer garments rather than merely carrying a bag into the Metro system. It seems to me that this is just another "feel good" empty gesture by Metro police and WMATA to justify a larger budget and is transparently designed to make visiting tourists feel more comfortable, rather than encouraging Metro as a transportation service to help lessen road congestion. Until this erosion of rights of law abiding citizens settles out, I'm driving in (alone) to DC.

Posted by: FramersIntent | October 30, 2008 12:33 PM | Report abuse

MacWade is only good law in the 2d Circuit where it was adjudicated. It has no binding force in Washington, DC. Metro, as usual wtih authoritarian power grabs, is really skating on very thin legal ice here by trying to pretend that MacWade is determinative. Let the lawsuits begin!

Posted by: hohandy1 | October 30, 2008 12:54 PM | Report abuse

@ FramersIntent:

Well, now, just be on alert, because the same logic that applies to warrantless searches on riders could just as easily be applied to drivers.

Wanna cross that bridge/cross that border/use this road? Well, you first need to submit to a "consent" search of your vehicle, your person, and your effects. What's that you say, we can't do that, it's not constitutional? Fear not, we have a special method for ensuring utter randomness. And anyway, we have a special need to make sure that our infrastructure is secure and safe from evil-doers. Yep, we're just implementing the standard set in MacWade v. Kelly. Oh, we're not saying you can't drive in to work, we're just saying that if you don't submit, you'll need to find another way of getting your car past this line. Hope you know some magic tricks...

Posted by: pjs0777 | October 30, 2008 1:00 PM | Report abuse

Metro's police chief in his "Chat" cited the cases upheld in NY and Boston as evidence that the searches are legal.

DC (and MD and VA) are in seperate circuits and the precedent from the 2nd Circuit is NOT BINDING here.

Defend your rights. Say no and peacefully attempt to enter the system. Should they prevent you, you have a case against Metro for Constitutional and Civil Rights violations.

Posted by: AngryLiberal | October 30, 2008 1:09 PM | Report abuse

Can anyone clarify?

If I am #14 (or whatever the arbitrary formula is that day) and refuse and walk out, only to walk in again a couple minutes later, does Metro have any other warrant to specifically pull me over for search, or can I claim that since I am now a new and different number I have the absolute right to avoid this infringement? (Under the argument that ANY selection other than the arbitrary formula constitutes unconstitutional profiling?)

Posted by: redrocket | October 30, 2008 1:48 PM | Report abuse

The constitution is clear and I do not like the searches AT ALL. However, what is not clear to me is - is the Metro considered "private" rather than public (as would be a street). Can it be expected that I refuse search yet still have the constitutional right to enter the Metro?

We spend a lot of effort limiting liberties but what are we showing for it other than high-visibility people saying they are doing something? Nothing really.

Posted by: overdrive_68 | October 30, 2008 1:55 PM | Report abuse

"They who would give up an essential liberty for temporary security, deserve neither liberty or security."
-Ben Franklin

Posted by: thornwalker1 | October 30, 2008 2:31 PM | Report abuse

From Dr. Gridlock: Here are a couple of links you might find helpful.

This one goes to Chief Taborn's discussion:
http://www.washingtonpost.com/wp-dyn/content/discussion/2008/10/27/DI2008102702325.html

(I didn't find the chief's answers either satisfactory or comforting.)

This is to Metro's FAQ page on the police searches of your property:
http://www.wmata.com/faqs/preview.cfm?faqID=50

And here's a link to the MacWade decision by the US Court of Appeals for the Second Circuit:
http://www.aele.org/law/2006LRSEP/macwade-kelly.html

Posted by: rtthomson1 | October 30, 2008 3:41 PM | Report abuse

this is crazy. I read wmata's faq's about this. So basically all the terrorists would have to do is strap the explosives to their person rather than put it in a back pack. What does this solve? I think someone hit it on the nose when they said this was an excuse to legitimize more spending. If I refuse to have my purse searched I cannot ride Metro??!! and if they find some food or drink in my purse or some other item that is not permitted on Metro, they will either confiscate it or tell me I can't ride??!! What about people bringing their groceries home? What If I'm bringing dinner home and it's boxed up? PLEASE someone sue them.

Posted by: Mrs_robinson2004 | October 30, 2008 4:42 PM | Report abuse

Mrs_robinson2004: it's not illegal to HAVE food or drink on Metro; it's only illegal to actually eat or drink.

Posted by: nashpaul | October 30, 2008 5:21 PM | Report abuse

You people would complain if you were hung with a new rope. You complain about these searches because they are against your constitutional rights. Then when an incident happens and you were lucky enough not to be a victim you complain the Government didn't do enough to protect you from these terrorist.

You folks already had your constitutional rights taken away when it came to firearms. Only law abiding citizens were the ones disarmed while your criminal populace were armed. What is wrong with that? Heller vs Washington D.C. reaffirmed the Second Amendment so you have the legal right to protect yourselves. The attorneys are requesting that Washington D.C. pay their legal fees since it was the loser of the case. They are requesting $3.5 Million to protect you from people who want you to be disarmed so they can eventually erode all your constitutional rights.

Posted by: AKIndependent2 | October 30, 2008 5:38 PM | Report abuse

I thought I remember on the chat with the Metro Transit Police chief that, if you were to refuse the search and then try to reenter the station (in the hope of being a different), you might be perceived of exhibiting "suspicious behavior" which could get you screened/detained anyway.

Posted by: nashpaul | October 30, 2008 5:47 PM | Report abuse

The chief didn't actually answer anything--he just parroted what WMATA told him to say. Both he and WMATA have refused to answer the question of what gives them the authority to conduct these searches. If there is a statute or a regulation, then cite to it. If the only basis is the Second Circuit opinion (which, as others have rightly noted, is not binding precedent in this area that falls within the Fourth and DC Circuits), then say so.

Posted by: 1995hoo | October 30, 2008 5:58 PM | Report abuse

If you decide to refuse or get into it with a transit officer please move to the side of the station and don't make a big stink.

I intend to offer my bag/self up for whatever they want to take a peek at so I can move on and get where I'm going.

If I'm lucky I'll be searched again when I swipe my card to enter my workplace. It sucks, but they pay me every two weeks so I put up with it!

I'd just as soon not be hung up in a crowd around an objectors big to-do.

Posted by: RedBird27 | October 30, 2008 7:08 PM | Report abuse

If I were a person who actually wanted to bring a bomb into Metro, I would simply check to see if they were doing random searches before I entered. If so, I'd just walk a few blocks over to the next subway station and enter there. How hard was that? And what good would these random checks do, anyway.

This is foolish and a waste of funds. It does nothing.

Posted by: rpike | October 30, 2008 7:10 PM | Report abuse

As I mentioned to some other people, apparently the take-away is that if you want to carry your weed onto the metro, be sure to carry it in your pocket and not in your bag.

Posted by: aaronw1 | October 30, 2008 7:15 PM | Report abuse

"I thought I remember on the chat with the Metro Transit Police chief that, if you were to refuse the search and then try to reenter the station (in the hope of being a different), you might be perceived of exhibiting "suspicious behavior" which could get you screened/detained anyway."

Invoking your Fourth Amendment right (refusing to be searched) is not grounds for suspicious behaviour or probable cause. And it would be unconstitional to search me at that point on those ground alone. Just like if you plead the 5th in court, the jury cannot use that against you.

Posted by: UMDTerpsGirl | November 3, 2008 1:58 PM | Report abuse

The comments to this entry are closed.

 
 
RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company