A Stitch in Haste

WTF?!?

Police questioned passengers aboard an Amtrak train that was detained at Newark Penn Station for more than an hour Thursday morning, checking the identification of each passenger.

Over a cell phone from a passenger on board the train, an unidentified railroad or police worker could be overheard telling passengers, "This is an unusual situation."

Dan Stessel, a spokesman for Amtrak, said there was "an active police investigation. Until it's wrapped up, we can't comment on it."
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The train was permitted to leave the station at 9:30 a.m. Taylor said no explanation was given to passengers, but an announcement was made thanking them for their patience.

Taylor said transit police officers came down the aisle of each car, asking to see the identification of each passenger on board and checking the information with small hand-held computer devices.

Police also searched overhead luggage compartments with a metal wand, and at least one police dog was brought aboard the train.

Police were not allowing anyone on or off the train, and the nearby platform was cordoned off with yellow police tape, she said. A woman who was addressing passengers aboard the train said anyone with a medical condition who needed to get off the train should speak to authorities.

Stessel would not say if the train or its passengers were considered to be in any danger.

Some "back of the envelope" thoughts:

There are two distinct concerns: the mass detention, bag searches and use of alert dogs (Fourth Amendment issues) and the mass reviewing of IDs (a Fifth Amendment issue).

[More at the Permalink.]
The only two explanations I can see for the mass detention are exigent circumstances (e.g., a bomb) or a fugitive hunt. But the police behavior is consistent with neither:

• If it was a case of exigent circumstances (which would probably be sufficient to justify wanding and dog sniffing the bags), then that still doesn't explain why people were not allowed to leave (recall that the train was parked at a station). Indeed, the first thing you'd want to do is get the innocent away from the danger, right?

• If it was a manhunt, then why the inspection of overhead compartments and police dogs? Wouldn't the ID sweep be sufficient? (Indeed, would the ID sweep even be necessary -- wouldn't a simple walk-through be sufficient?)

As for the mass ID review: Even after the controversial Hiibel decision, there is still a constitutional right not to carry ID at all times (a right one voluntarily waives in certain reasonable circumstances, such as commercial flying). As far as I know, there is no requirement that a passenger on a train be required to carry ID at all.

And even if there is: Let's say I'm a completely innocent passenger on that train and, when prompted, I either cannot, or refuse to, provide ID? Remember: There is no probable cause, or "Terry-stop" reasonable suspicion, to detain me at all, even if there may be a basis for detaining the train. Without specific evidence against a specific passenger, there is no basis for demanding ID of that passenger.  That principle survived Hiibel, which held that police could demand identity information (not necessarily an "official" ID), when the police have reasonable suspicion that the suspect is wanted. Not the case here.

Also: Details are sketchy regarding the dog searches, but one of the last unsettled areas of Fourth Amendment jurisprudence is whether a dog sniff of a person's body, without reasonable suspicion, constitutes an unreasonable search.  This exact hypothetical -- passengers on a bus or train, in tight quarters, detained without individualized suspicion, not allowed to leave, being subjected to a dog going up and down the aisle in close proximity -- is exactly what constitutional experts have expressed uncertainty about. 

It appears the police activity was local, at least initially, (although the FBI later acknowledged sending two agents after the fact).  Whoever conducted the detention has some serious explaining to do.

UPDATE #1: Here is what Amtrak's website says about ID:

Effective immediately, Amtrak is implementing several new security measures for the benefit of our passengers.  Consequently, passengers will be required to produce valid photo identification when purchasing tickets or checking baggage. All passengers, 18 years or older, should be sure to carry a driver's license, passport or other photo identification when making a purchase.

Might just be a case of bad writing, but it says "when purchasing tickets" not "when traveling." And even if they did mean "when traveling," that still doesn't mean that passengers agree in advance to waive their Fifth Amendment rights, as clarified by Hiibel, not to produce ID to police without individualized suspicion.

UPDATE #2: It now appears that this whole questionable episode was the result of a crank note:

An Amtrak passenger found a threatening note on board Thursday, and the train was detained for more than an hour as police checked passenger identifications and searched luggage racks.

The Washington-to-New York train was declared safe and allowed to continue its morning route.

Amtrak spokesman Dan Stessel said he did not know the exact contents of the note, which a passenger found attached to a mirror in the cafe car's restroom.

The passenger alerted the train crew, and police boarded at the next scheduled stop, Newark Penn Station, to perform the search, Stessel said.

"The passenger did exactly the right thing," Stessel said.

The note will analyzed at a crime laboratory, he said.

I don't disagree that the passenger did the right thing -- my problem is with what the police did.

How exactly does demanding ID of every passenger, in a constitutionally suspect manner, help in any way to determine which jackhole put up the threatening note?  And what exactly were the "handheld devices" they were using?

Stopping the train, searching it for explosives or whatever, that's fine of course.  Maybe even the alert dog could be considered reasonable under the circumstances (I'm skeptical).  But I still see a pretty flagrant constitutional violation in the ID sweep.

It remains to be seen whether there will be any fallout from the incident.

Anyone remember Hiibel v. Nevada, 542 U.S. 177 (2004). It wasn't that long ago.

Here are some people who definitely forgot Hiibel:

The Ohio Patriot Act has made it to [Governor Bob] Taft's desk, and with the stroke of a pen, it would most likely become the toughest terrorism bill in the country. The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

In Hiibel, the Supreme Court ruled that an individual who, as part of a lawful stop by police given probable cause (or the lower standard of "reasonable suspicion") must disclose his identity -- not "provide identification," but simply disclose (truthfully of course) his identity.

The Court made it very clear that Hiibel presumed a lawful police stop, and explicitly reaffirmed an earlier case, Brown v. Texas, 443 U.S. 47 (1979), holding that police may not "just stop someone" and demand that they identify themselves "because they looked suspicious."

And the proposed Ohio Patriot Act doesn't even require the "they looked suspicious" part.

Anyone, anywhere, for any reason, or for no reason whatsoever: "Identify yourself!"

Next step: "Papers please!"

Patently unconstitutional under Brown v. Texas. No question. Not even close.

But pass it anyway, Ohio Legislature. Sign it anyway, Governor Taft.

Those "activist judges" will be there waiting for it.

Hat tip to P2TP. More thoughts at Hammer of Truth.

Prince William County, Virginia, is raising the drawbridge to keep out illegal immigrants:

Prince William County is moving to enact what legal specialists say are some of the toughest measures in the nation targeting illegal immigrants, including a provision that would direct police to check the residency status of anyone detained for breaking the law — whether shoplifting, speeding or riding a bicycle without a helmet.
...
The resolution does not address how county authorities would verify residency status, but supervisors said they wouldn't want residents to carry passports in Prince William; a valid driver's license or state-issued identification would suffice.

So now your driver's license is your "existence license." And you better not exist in Prince William County without it.

And this totalitarian tactic would be no less a "Papers Please!" nightmare than mandating that people carry passports — how?

Of course, the Supreme Court has already held that there is a general right not to carry identification. The most recent clarification came in Hiibel v. Nevada*. In that case, the Court held that a person detained, on other grounds, by law enforcement need only be honest in communicating his identity. He is not, however, required to prove it (i.e., to have identification).

By the same token, law enforcement has no authority to seize someone, even as a brief additional administrative step subsequent to some other infraction, merely for not having ID — since when do we detain people for not breaking a law? This the Fourth Amendment does not allow.

"Round 'em all up and let the databases sort them out..." is yet another manifestation of how an "us versus them" hysteria can erode civil liberties. First was the War on Terror, now it is the War on Illegals. Either way, it's really a war on us all.

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*Hiibel v. Nevada, 542 U.S. 177 (2004), citing favorably to Brown v. Texas, 443 U.S. 47 (1979) (police may not detain merely to ascertain identity), Kolender v. Lawson, 461 U.S. 352 (1983) (state cannot require possession of "credible and reliable" identification).

(Please see update below.)

By now you have likely seen the utterly outrageous reports that the District of Columbia, most recently known for holding the Second Amendment in absolute contempt, has now upgraded — or downgraded, depending on your nomenclature — to likewise trampling other parts of the Bill of Rights:

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate "Neighborhood Safety Zones." At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn't live there, work there or have "legitimate reason" to be there will be sent away or face arrest, documents obtained by The Examiner show.

Some hasty stitches:

--The right* of otherwise law-abiding citizens to be in and move through public spaces, with or without identification and with or without a "legitimate reason," is well-settled law. See Papachristou v. Jacksonville, 405 U.S. 156 (1972), Brown v. Texas, 443 U. S. 47 (1979), and especially Hiibel v. Nevada 542 U.S. 177 (2004), (Breyer, J., dissenting). (*I would be just as happy to use the term "privilege and immunity," but that doesn't get you very far, no pun intended.)

--The requirement that one's purpose be "legitimate" is of course unconstitutionally vague. "Legitimate" — to whom? By what standard? Is walking one's dog a "legitimate reason"? Proselytizing on behalf of the Mormon faith? Collecting bottles for the nickel deposits? Taking your kids to a blighted area to "see how the other half lives"?

--Suppose I show up at such a checkpoint and simply declare: My "legitimate reason" is my desire to exercise my First Amendment right not to need a legitimate reason. Do I win because I have a legitimate reason or because I don't need one?

--Speaking of unconstitutional vagueness, what will the criteria be for determining which neighborhoods deserve this Checkpoint Charlie nightmare? Will the designations be subject to race-based or other discrimination challenges, much like our statutory and judicial approach to fighting gerrymandering or busing?

--Going back to the Second Amendment and the pending decision in District v. Heller: Most libertarians wasted little time in debunking the hopelessly silly "Congress has plenary Article I authority over the District" canard by asking whether Congress could, hypothetically, repeal the First Amendment within the borders of the District. Who knew that the District would actually consider trying it? See also the (just as hopelessly silly) claim that the federal government can authorize, without constitutional amendment, full voting representation for the District in Congress.

(Via Hit & Run.)

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UPDATE: Subsequent media accounts now clarify that the checkpoints will be vehicular, not pedestrian. That changes neither the outrageousness nor the unconstitutionality of the program — only the precedents with which to analyze the proposal. Indianapolis v. Edmond, 531 U.S. 32 (2000) is both clear and directly on point: Vehicle checkpoints, without individualized suspicion and established merely for "general crime control purposes," violate the Fourth Amendment. Accord, U.S. v. Lidster, 540 U.S. 419 (2004). My void-for-vagueness analysis is also still entirely applicable here, as would be any requirement that passengers in the vehicle produce ID (the driver would of course be required to produce a valid drivers license).