A Stitch in Haste

Some down-to-earth bloggers (that's not necessarily an insult) are lampooning a report in the Village Voice, in the wake of New York's plan to conduct random suspicionless searches in its mass transit system, that includes this link for "I Do Not Consent to Being Searched" t-shirts.

Without passing judgment on the t-shirt idea, I do think it's important for laypersons to understand the true meaning of "consent searches."

If you've ever watched an episode of COPS, you know that the first question any law enforcement official will ask is "Do you mind if I look inside the vehicle?" or "May I search your bag?" If you assent, then you have instantly forfeited all your Fourth Amendment rights, even if the officer committed other Fourth Amendment violations (e.g., pulled you over impermissibly) -- see Zap v. U.S., 328 US 624 (1946).

Stated differently, consenting to a search is a specifically defined act with significant legal and constitutional consequences. No one ever need consent to a search, and no one ever should.

It's easy to confuse consenting to a search with submitting to a search. Consenting means you don't care whether the police (or TSA or IRS or Border Patrol or whomever) have proper authority to conduct the search. Submitting to a search means that you are allowing the search only because the government has asserted that it has such authority. If you submit to a search, and push comes to shove, the burden is on the government to prove that the search was constitutionally valid. If you consent to the search, on the other hand, the government is required to show absolutely nothing, except that your consent was knowing and voluntary -- see Bumper v. North Carolina, 391 U.S. 543 (1968).

In the context of the mass transit searches, which I still insist are constitutionally suspect, the distinction between consenting and submitting is all-important, and should not be mocked, either by bloggers or by t-shirt capitalists. It is also misguided to put the cart before the horse and argue that "if you want to ride the subway, then you must consent to the search." "Must consent" is a contradiction in terms, comparable to "compulsory volunteerism." The very fact that the government is claiming the authority to prevent you from riding mass transit by definition means the search is not voluntary and that any search subsequent to the new policy is not a "consent search" in the constitutional sense -- unless you make it so!

If you happen to be stopped for a search such as this, you should not say "Yes I consent" or "Sure, go ahead." Rather try saying something like "I consent to nothing, but if you are requiring me to submit to a search, then I will comply." That may sound a little too "Borg drone," but it should preserve your Fourth Amendment rights.

I can't be sure until I check my notes, but my first read on New York City's plan to conduct random searches of passengers' bags is that it's probably unconstitutional.

The Fourth Amendment protects against "unreasonable searches and seizures." Often the debate centers on whether a police action is even a search (e.g., dog sniffs). But obviously this plan entails "searching," so the next question is whether the search paradigm is "reasonable."

As I recall, the test for reasonableness is an objective, societal test — would ordinary people think they have an "expectation of privacy"? Well, for 100 years there have been no random searches on NYC's subways and buses, War on Terror notwithstanding, so I would conclude the answer is yes, there is a reasonable expectation of privacy on the subway with respect to one's packages.

Also, there is generally a requirement of "individualized suspicion" before a search may commence. We used to call that "probable cause" but we have since diluted that down to "reasonable suspicion" (i.e., the so-called "Terry stop"). Random searches are a clear no-no. See Delaware v. Prouse, 440 U.S. 648 (1979).

There are exceptions, at least with respect to vehicles on public roads. A checkpoint (e.g., for seatbelt checks or in a fugitive hunt) where everybody is stopped regardless, has been upheld (Illinois v. Lidster, No. 02-1060 (2004), but cf. Indianapolis v. Edmond, 531 U.S. 32 (2000), striking down a blanket checkpoint to search for contraband).

I believe that non-discretionary selection schemes (e.g., stop every third vehicle regardless) have also been upheld. The idea has been to strip the rank-and-file police of their ability to abuse discretion and target people (e.g., by race) under the cloak of "randomness."

The only example I can think of where purely random searches without individualized suspicion are permitted are for school lockers, but the rationale there is that the lockers are school property anyway.

So like I said, all routes seem to lead to unconstitutionality. But I'm doing this somewhat "back of the envelope" as we say on Wall Street. And I know I have some lawyers and studying-for-the-bar-exam law students out there, so I hope they'll correct any errors or omissions in my reasoning.

Other thoughts at As I Please, Pelican in Her Piety, Downtown Lad, JunkYardBlog, MartiniPundit, Insulted, Hit & Run.

UPDATE #1: I address the question of "consent searches" here. The New York Times, meanwhile, has a follow-up piece on the legal aspects of the new policy. The voices expressing doubt about the plan's constitutionality appear to be growing.

UPDATE #2: For those who saw this Slate article, it seems very clear to me that the "probation case," Griffin v. Wisconsin, 483 U.S. 868 (1987), cited as a legitimization of subway searches, is completely inapposite. Griffin held that the government can lawfully require, as a condition precedent to being granted probation, that the criminal agree to suspicionless searches of their residence during the term of the probation.

Law-abiding citizens seeking to ride the subway are not analogous to criminals on probation, who are not "giving up their freedom" but rather receiving new limited freedoms that they had already forfeited by being convicted. With subway searches there is a clear denial of previously established rights, so Griffin is totally inapplicable.

The rest of the article, meanwhile, seems reasonanably correct in its legal analysis and can be considered a good read for laypersons.

It didn't take long for reports of abuse of discretion by rank and file police officers to surface:

Ziaul Sarker, a 24-year-old city employee of Bangladeshi descent, had his identification checked by cops, who also wrote down his name.

Collins later admitted the officers should not have been asking to see people's driver's licenses or taking names. "When we learned of it, we stopped it," he said.

This is exactly why random searches are a bad thing, not a good thing. Police officers are not lawyers and must not be allowed to "make up" policies and procedures as they go along. "On the job training" has no place where the Constitution is concerned.

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The "random" aspect of the searches is also somewhat of a joke so far. Police are keeping records of race and such (your tax dollars at work -- a cop standing around playing bookkeeper). Still, I have yet to see a single report or photo of any women, children or elderly being searched. Go figure.

I think what is going on is that the police talked themselves into a corner. They were so concerned about charges of "racial profiling" (which some bloggers think wouldn't be such a bad idea anyway) that they rushed to declare the program "random" -- which is exactly what may get them into trouble constitutionally -- see my previous post.

In reality though, the police are being less than totally random, which may in the end salvage the program. First, they seem to be searching only backpacks and large packages. Second, they are now backpedaling and emphasizing that there will in fact be some element of individualized suspicion in the selection criteria -- people who look nervous, who may be sweating excessively, who are dressed inappropriately for summer weather, etc.

Seems to me like the NYPD needs better public relations staffers. Their attempts so far to communicate their plans to the public have been pretty dismal so far.

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The New York Civil Liberties Union has a good summary of the issues and your rights in these searches and a survey form to report your experiences.

Regarding New York City's constitutionally suspect random search requirement for entrance to the subway system, I previosuly blogged the following:

I think what is going on is that the police talked themselves into a corner. They were so concerned about charges of "racial profiling" (which some bloggers think wouldn't be such a bad idea anyway) that they rushed to declare the program "random" -- which is exactly what may get them into trouble constitutionally...

Well, the descent down the slippery slope of unconstitutionality progresses on schedule:

Middle Easterners should be targeted for searches on city subways, two elected officials said, contending that police have been wasting time with random checks in efforts to prevent terrorism in the transit system.
...
[S]tate Assemblyman Dov Hikind said police should be focusing on those who fit the "terrorist profile."

"They all look a certain way," said Hikind, a Democrat from Brooklyn. "It's all very nice to be politically correct here, but we're talking about terrorism."

On Tuesday, Republican City Councilman James Oddo said the Sept. 11 World Trade Center attack by Middle Eastern men in hijacked airplanes prompted him to publicly declare his support for Hikind's statements.

"The reality is that there is a group of people who want to kill us and destroy our way of life," he said. "Young Arab fundamentalists are the individuals undertaking these acts of terror, and we should keep those facts prominently in our minds and eyes as we attempt to secure our populace."

So we started with a Fourth Amendment jurisprudence that was quite clear-cut: no searches of property without individualized suspicion. Then, in the name of the War or Terror, the government said that protecting the subways was more important than protecting individual rights and the individualized suspicion requirement was abandoned in the name of "safety."

Now come politicians who, observing the correct but irrelevant fact that the current search protocols are a joke, choose not to advocate scrapping the program outright, but rather propose "tweaking it" into a race-based search program, and in the process riding roughshod over even more constitutional protections.

All in the name of "preserving and defending our way of life."

Go figure.

Wouldn't it just be easier to return to our roots, treat the plain text of the Fourth Amendment as if it meant something and simply have searches based on probable cause?

Of course it would be easier. But it wouldn't satisfy the Politics of the Warm Fuzzy Feeling. After all, it is better to feel safe than to be safe. And it is much easier to feel safe than to respect the Constitution.

Because, again, we have to "preserve and defend our way of life."

Whatever that means anymore.

The New York Civil Liberties Union is challenging the constitutionality of New York City's new mass transit system policy of random, suspicionless searches as a condition precedent to accessing the subway system:

In addition to violating the constitutional rights of millions of subway riders, the NYPD policy appears to be ineffective as a security measure. The NYPD is not conducting searches at most subway entrances at any given time, is giving advance notice about searches at those entrances where searches are being conducted, is allowing people selected for a search to walk away, and is not basing the searches on any suspicious activity of individuals. As common sense would suggest, the NYPD's program is virtually certain neither to catch any person trying to carry explosives into the subway system nor to deter such an effort. Indeed, given the way the Department has implemented its search program, the only people being searched are innocent users of the subway system.

And although the NYPD claims that they are conducting searches that are purely random, the large number of people entering the transit system and the lack of control over that traffic result in people being selected for search in a discretionary and arbitrary manner, which creates the potential for impermissible racial profiling.

Yup. I think this whole sorry state affairs can be reduced down to one irrefutable premise: Making people feel safe, as opposed to making them be safe, is not a sufficiently compelling government interest to void the Fourth Amendment's requirement of individualized suspicion for searches and seizures.

The Bill of Rights may not be a suicide pact*, but neither is it a mere suggestion.

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*Let the record reflect that this famous (mis)quote actually comes from a dissenting Supreme Court opinion and has never been considered good law or even good wisdom. See Terminiello v. Chicago, 337 U.S. 1 (1949) (Jackson, J., dissenting):

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

It should be noted that Terminiello was a First Amendment case about inciting to riot (i.e., creating a a state of imminent dangerous lawlessless), not about the Fourth Amendment or about public safety generally. Context counts.

I generally like curmudgeonly Wall Street Journal editorial board member Dorothy Rabinowitz. But she completely drops the ball in her commentary on the controversial random searches of bags by New York City mass transit (WSJ - $, see also OpinionJournal):

Most of those entering the subways these days are, it seems, unperturbed by the prospect of a bag check, and not a few have made clear their approval of such precautions. Indeed, in its latest war on the security search, the NYCLU has entered on decidedly iffy terrain: one close to home, psychologically, for masses of Americans (and not just those who take city trains and buses), all in a good position to weigh the sort of argument which holds that government security methods are a greater threat to them than terrorism.

This is what happens when people forget that "our way of life" is not about unbridled democracy but about individual rights and that government is supposed to do things for us, not to us. The Fourth Amendment is not a suggestion and is not subject to majority vote or bureaucratic veto. If Rabinowitz, Mayor Bloomberg or anyone else wants to argue the law, then fine -- let's argue it.

But it is downright unpatriotic to suggest that those who seek to protect our liberties are downright unpatriotic.

Rabinowitz' thesis is deeply disturbing. Perhaps she will think I'm demented, but when it comes to my privacy I am indeed more afraid of the police than I am of the terrorists (and I live in NYC and I ride the subways). The terrorists will vanish some day -- will the precedent of random suspicionless searches vanish with them?

Meanwhile, so long as there are still terrorists in the world, the NYC program will do nothing, absolutely nothing, to thwart them. The program has a single irrefutable flaw: it is not about making people safe, but about making people feel safe.

And that is not enough to suspend the Fourth Amendment.

More:

Taking affront at government security measures in wartime is, of course, a choice available only to a free people, as is the right to cavil ceaselessly about the alleged erosion of our liberties, the dark night of oppression settling on us daily, as the NYCLU has so conspicuously done these last years -- though not without echoing choruses from its parent organization, the ACLU, and various crank outposts of the libertarian movement.

The curmudgeon doth protest too much. Rabinowitz can thump her chest, roll her eyes and make "tsk, tsk" noises all she wants. Not only is there no clear Supreme Court jurisprudence regarding the kind of search program NYC has implemented, but the case law we do have tends to support those of us who consider the program unconstitutional. Perhaps we'll eventually be proven wrong, but we are certainly not "caviling." The NYCLU's lawsuit may ultimately lose, but that does not make it frivolous, and one way or the other, the Fourth Amendment is not, as Rabinowitz seems to think, the delusional fantasy of the "crank outposts of the libertarian movement."

Furthermore, if Rabinowitz refuses to see the reality of what she calls "the alleged [sic!] erosion of our liberties," then she has no standing to be taken seriously on the subject, whether by "crank libertarians" or by anybody else.

It is not up to journalists, or transit system bureaucrats, or a mayor, to decide whether a new, sweeping and heretofore constitutionally unsanctioned (not to mention patently ineffective) search program is "no big deal." Like it or not, it's up to the judges. And if you don't want them being "activist," then stop hiding behind the War on Terror and playing fast and loose with the Bill of Rights in the first place.

POST SCRIPT: Here's another example of Rabinowitz' "alleged" erosion of our Fourth Amendment rights that has resulted in yet more ACLU "caviling." Does Rabinowitz think the War on Terror justifies forced suspicionless breathalyzer tests of teenagers too? Or am I just being a "crank libertarian" again?

I'm not at all a baseball fan, but even I know the first rule of hitting, handed down from Wee Willie Keeler:

Hit 'em where they ain't!
To whatever extent the threat against New York City's subway system is credible (a question that is apparently now hotly debated), the terrorists kept this simple rule in mind when they plotted to plant explosives in baby carriages and briefcases. Those two personal accoutrements have been almost completely ignored by the city's dubious random search program, which -- up until now -- had focused almost exclusively on backpacks.

I have not in any way changed my view that the subway search program is not only unconstitutional but also just plain stupid. Now we have even more evidence of the latter.

So, to review: another Fourth Amendment constitutional protection has been eroded, for the sake of a warm fuzzy feeling program that has had exactly zero effectiveness, and now perhaps has even demonstrated negative effectiveness.

Why don't I feel safer?

I am of course very disappointed in the federal district court ruling that New York City's ludicrous and totally ineffective policy of randomly searching bags and containers at subway entrances is not a violation of the Fourth Amendment. On the other hand, it was common knowledge that, regardless of how the trial judge ruled, the losing party would appeal. One way or the other, expect the case eventually to reach the Supreme Court.

Judge Richard M. Berman's opinion is maddening. He basically crafts a wholly unprecedented exception to the Fourth Amendment. According to Judge Berman, a court should now show not only great deference, but absolute deference to the government in any situation where the purported state interest is "combating terrorism." Stated differently, the word "terrorism," according to Judge Berman, is now sufficient to justify any and every violation of the Fourth Amendment that the government feels like implementing.

Like I said: maddening.

Judge Berman does go through the motions of performing a cursory Fourth Amendment analysis, and in the process butchers every precedent regarding suspicionless search and seizure. He cites to cases that can be only be reasonably interpreted as holding against the MTA's random suspicionless search program. One example: Skinner v. Railroad Labor Executives, 489 U.S. 602 (1989) (requiring a direct and obvious threat to public safety to justify random drug testing of government employees).

Another: Chandler v. Miller, 520 U.S. 305 (1997) (holding against random drug tests of candidates for public office).

Another: Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (holding against random drug testing of Treasury agents not directly involved in the War on Drugs).

Another: Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (limiting random drug testing in schools to student athletes, who because of their activities face a special risk from drug abuse).

Another: Delaware v. Prouse, 440 U.S. 648 (1979) (holding against totally random stops of motor vehicles).

Every single one of these cases, even where the search was upheld, still makes perfectly clear that there is in fact some limit to random suspicionless searches, no matter how "compelling" the government interest may be. But Judge Berman treats every single one as somehow validating his incomprehensible ruling of "absolute deference under all circumstances."

Like I said: maddening.

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One more glaring weakness in Judge Berman's reasoning: He allows the government to be its own expert witness as to whether searches are "effective" --

Here the Court is comfortable relying principally upon the expert testimony of [MTA] Commissioners...

The MTA wants to implement a constitutionally suspect random suspicionless search. Such a search must be shown to be "effective." How to show its effectiveness? Simple: Ask the MTA (and believe them, even in defiance of all common sense).

Like I said: maddening.

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Showing "great deference" to the government in matters of national security and public safety gave us Korematsu v. U.S., 323 U.S. 214 (1944). Here Judge Berman shows not great deference but absolute deference, and not to national policy makers but to local hack bureaucrats. Of course, opening your purse or backpack is not the same as finding yourself in an internment camp, but the principle is the same. It is not only the right but the duty of courts to stand athwart yelling "Stop!" at the runaway train of Fourth Amendment evisceration. Judge Berman instead lied down on the track and let himself be decapitated.

Like I said: maddening.

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If I understand the MTA's random suspicionless search policy correctly (I can't find an official link — go figure), it implements random suspicionless searches only at subway entrances, but also can include searches on buses after the passengers have boarded. That's an entirely different fact pattern that could require an entirely different analysis (and litigation). Stay tuned...

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Judge Berman's decision can be found here (a very low-quality PDF, 41 pages — jump to page 31 for the legal analysis).

More thoughts at California Yankee, Concurring Opinions, Hammer of Truth, Crime & Federalism, Law & Society.

As I was drafting my previous post critiquing the ruling upholding New York City's random, suspicionless search program at subway entrances, I was reluctant at first to invoke the dark legacy of Korematsu v. U.S., 323 U.S. 214 (1944), in which the Supreme Court upheld the internment of American citizens of Japanese ancestry on the grounds that courts should abdicate all responsibility for reviewing policies where the government interest is "national security."

Well, it turns out that I wasn't the only blogger willing to go that far:

If such decisions are left solely to the other branches of government, then what's the role of the courts in applying the Fourth Amendment? Is there much of a role left? The same kind of arguments have often been made in support of government policies. Consider the arguments made when the Supreme Court upheld the Japanese Internment in WWII in Korematsu...

[Korematsu] was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures ... and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.

In Hirabayashi v. United States, 320 U.S. 81 (1943), the Supreme Court stated: "[I]t is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs."

Under [this] argument, the Fourth Amendment wouldn't play much of a limiting role on what law enforcement officials can do. We should rely on the political process. If people don't like it, then kick the policymakers out of office. [Internal quotations omitted.]

My point exactly. There is no other line of Fourth Amendment jurisprudence, indeed no other branch of constitutional law, where courts show absolute deference to the other branches of government. (There are certain types of cases that courts won't hear — so-called "political questions" — but that's not the same as hearing a case and then upholding a law based on an absolute deference to policy makers.)

As I blogged previously, there is a robust collection of cases concerning random, suspicionless search programs, and every single one, even where the search program was ultimately deemed constitutional, makes clear that there is to be, not absolute deference, but in fact some form of heightened scrutiny, whether in the form of a balancing test or some other methodology. Probable cause is not to be waived casually, and certainly not blindly.

The MTA, the NYPD and Mayor Bloomberg have been quite successful in playing down the fact that this search policy is unprecedented in America, and that any search program even remotely similar to it has been struck down. Judge Berman's decision is a limp-wristed kowtow that is far closer to the judicial cowardice of Korematsu than to current Fourth Amendment jurisprudence.

It is, in short, embarrassing. It is also, in short, wrong.

More thoughts at Concurring Opinions.

I just finished watching The Taking of Pelham One Two Three, the cheesy but fun 1974 Walter Matthau movie about the hijacking for ransom of a New York City subway car.

As I was watching the DVD, it occurred to me how easy it was for the four thugs to get their weapons on the train — I especially liked the trombone case. And it also occurred to me that the current atrocious (and constitutionally suspect) random suspicionless search program in the subways would have done nothing, absolutely nothing, to prevent the Taking of Pelham One Two Three.

Are the police searching this station? Simple, go to the next station. Or, better yet, just enter the subway an hour earlier on another line (since you can stay on the subways as long as you like and every station is accessible from every other station if you make enough connections).

And once again my head is spinning knowing that a judge — or anyone else for that matter — can honestly think that this random search program is entitled to any deference, let alone a new standard of absolute deference, to transit and police experts. It is indisputably obvious — to anyone — that this program is absolutely worthless. But the bureaucrats say (without any evidence to back it up) that "it works." So we are obligated, according to this judge, to believe them.

Incredible.

Oh, and the four villains in Pelham also had to get out, with their pockets stuffed full of money. Terrorists wouldn't even have that burden — they just need to get in, not out.

Every apologist for the subway search program should watch Pelham and ask themselves honestly: Could New York's random search program possibly have deterred Mr. Blue* and his gang? And can it possibly prevent, or even deter, a coordinated terrorist attack?

If not, then why erode the Fourth Amendment for it?

*Pelham was the inspiration for Quentin Tarantino's use of color-coded villains in Reservoir Dogs.

As I mentioned in my introductory post at Overlawyered, I have a soft spot for the Fourth Amendment. Unfortunately, it seems that judges, up to and including the Supreme Court, have made it a hobby to poke ever more holes into the Amendment's proscription against warrantless, suspicionless searches, purportedly in the name of "reasonableness."

Most of the evisceration of the Fourth Amendment has been proximately caused by the War on Drugs, particularly regarding the ever-increasing "automobile exception" to the warrant requirement. But we also have a whole panoply of other exceptions: border searches, administrative searches, consent searches, health & safety inspections, exigent circumstances...

...oh, and the War on Terror:

A federal appeals court Friday upheld the constitutionality of the city's random police inspections of subway riders' bags.

The 2nd U.S. Circuit Court of Appeals rejected a challenge by the New York Civil Liberties Union, which argued that searches were ineffective and an unprecedented intrusion into privacy.

The appeals court ruled that a lower court judge properly concluded the program put in place in July 2005 after the deadly London subway bombings was a reasonably effective deterrent and that the intrusion on riders' privacy was minimal.

If you've never ridden the New York City subway*, then it might be difficult for you to appreciate just how wrong that last sentence is. The search program has, literally, zero deterrent effect. None.

Suppose you're a terrorist, part of a cell. You want to have your bomb or lethal liquids activated on a certain subway car at a certain time. You approach your preferred subway entrance. You are confronted with a search table — there is no "element of surprise" of any kind.

You look at the police officers; they look at you.

And then you smile, turn around, walk a few blocks to the next entrance, or next station, and try again.

You will, easily and unequivocally, get into the subway system. There is no possibility, none, that you will be thwarted in your efforts.

So explain to me again how this inane search program, one that has, literally, zero probability of stopping any terrorist, is "a reasonably effective deterrent"?

There is no comparability, none whatsoever, between a few scattered bag searches at a few scattered subway entrances and the screening that occurs at airports. If you were to search everyone entering the subways (an implausible scenario), then yes, the system would work, much as it does in air travel.

But a system that pre-announces when and where searches will take place, that allows people to decline, turn around and simply try again at the next entrance, is objectively worthless. Therefore, it is also objectively unreasonable. And therefore, unconstitutional — even under our current, heavily-diluted Fourth Amendment jurisprudence.

So what the heck were the judges thinking?

Simple: This litigation is simply a manifestation of an alarming trend which, despite all the gobbledygook we hear about "activist judges," is on the rise: the replacement of "rational basis review" with a new jurisprudence of absolute deference to the non-judicial branches of government.

Judges are increasingly refusing to question the assertions of legislators, executives and law enforcement. A "finding" by a legislature, or a police chief, or a general, is to be accepted as an incontrovertible fact, no matter how little evidence supports the assertion or how much opposing evidence may contradict it:

We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day-to-day police power. Counter-terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not — and may not — second-guess the minutiae of their considered decisions. [Emphasis in original.]

So the guiding principle of "great deference" is now a iron-clad demand for "absolute deference." But don't worry — the people we are deferring to are "politically accountable."

Lovely.

Judicial abdication recently reached its apex in the atrociously reasoned same-sex marriage decisions by the high courts of New York and Washington State, both of which let stand hopelessly over- and underinclusive discriminatory marriage paradigms based on nothing more than their respective legislatures' assumptions, prejudices and wild guesses. There was no serious analysis in either decision; no balancing of claims. Just a pronouncement that "others know best," even when they obviously don't and even when fundamental rights are at stake.

As another example, I doubt I have to review for Overlawyered readers the Supreme Court's abysmal eminent domain decision, Kelo v. New London. Yet again a basic constitutional protection is abandoned in the name of "deferring" to politicians and their collaborators.

So in that sense this latest defeat for basic liberties, and common sense, is nothing new or surprising. For our supposedly "activist" judges, "rational review" now means "irrational deference." Go figure.

Great deference, perhaps even absolute deference, might — might — be appropriate when there is absolutely no question of a law's constitutionality. But where the very question being asked is whether a law violates the Bill of Rights, mere rationality is not enough, and patent irrationality is outrageous.

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*One generally overlooked facet of the search program is that it includes New York City buses as well as subways. But the bus searches would take place after the passenger has boarded, whereas the subway searches commence before the passenger has entered through a turnstile. That makes the analysis entirely different, yet I rarely see the two programs distinguished.

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The case is MacWade v. Kelly, No. 05-6754-cv (2nd Cir., August 11, 2006) (PDF - 25 pages). My previous post on the subways searches can be found in this chain. More thoughts from Concurring Opinions, Balkinization.

To review: New York City's random bag search program at subway entrances is unconstitutional because any search regime that is objectively worthless cannot possibly be deemed "reasonable" under the Fourth Amendment by any rational judge (irrational judges are another question altogether).

Armed with that:

Amtrak passengers will have to submit to random screening of carry-on bags in a major new security push that will include officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains, the railroad planned to announce today.
...
The new procedures draw heavily on measures being used in the New York City subways, Rooney said. That model has been upheld in court challenges[.]
...
People who are selected for screening and refuse will not be allowed to board, and their tickets will be refunded.

In addition to the screening, counterterrorism officers with bomb-sniffing dogs will patrol platforms and walk through trains, and sometimes they will ride the trains, officials said.

Some hasty stitches:

--Is the difference between blowing up a train and blowing up a train station equivalent to the difference between blowing up plane and blowing up an airport terminal? It's hard to think like a terrorist, but wouldn't blowing yourself up at Penn Station during the morning commute be more effective than blowing yourself up in the bar car on the Metroliner? This security theater does nothing to prevent attacks on crowded commuter terminals themselves, which are the true targets (at least in New York City).

--The very characteristic that makes the New York City subway search so mind-bogglingly stupid is the fact that would-be riders, who are anonymous, can decline to be searched, walk a block to the next entrance (or a few blocks to the next station), board there — and, if a terrorist, do their dastardly deeds anyway. Objectively demonstrable zero deterrence effect. For Amtrak, meanwhile, this wouldn't apply (since people must buy personal tickets as with air travel). So why in this instance also let them "just walk away" as we do on the subways? Why not record their data from the refunded ticket and possibly investigate them further? (I'm arguing here as a devil's advocate, not a libertarian. If you're going to have a dubious warrantless search regime, then at least try to use it intelligently.)

--Deploying sniff dogs on a train itself (rather than on platforms or in baggage areas) comes perilously close to constituting suspicionless dog sniffs of a person's body, an uniquely intrusive form of search that has never been endorsed by any court, and certainly not by the Supreme Court.

--From the article: "Amtrak has received a number of federal grants aimed at boosting security, but officials said there was no specific mandate to implement the changes." That would be on top of Amtrak's $1 billion annual subsidy from taxpayers (i.e., people who don't use Amtrak).

Remember always: The government's approach is that it is better to feel safe than to be safe — or free.

All aboard?

More thoughts at Concurring Opinions.