Below the Fold: Suspicion-less Searches: From Paranoia to Policy on a Boston Subway

The trek to downtown Boston from Jamaica Plain, the city neighborhood where I live and where once lived the mighty maestro Serge Koussevitzky and the mendacious James Michael Curley, is a rather mundane affair. Thanks to Michael Dukakis and his far-sighted technocratic flair, a subway line now serves us instead of a broken-down trolley line. Actually the subway line consists of an extension of an older line that used to end in Roxbury, the home of the largest African-American population in the city and the birthplace of Malcolm X. It passes that way no more, heading instead to where the city’s white people live or to where people of various colors are gentrifying neighborhoods like mine.

I arrived at the Stony Brook station, a brick and steel structure wearing its twenty years well, and what to my irritated eyes should appear but four cops and a dog set up to stop and search the bags of passengers of their choosing. As befits a true American, I averted my eyes and slinked by, but it got my Irish up, as my Grandmother used to say. So I turned to assay the situation once I had safely passed the turnstile. They had nabbed a suspect, a young college student with scruffy hair and a menacing book bag over his shoulder. It was all very low key. One of the cops was the local greeter and diverter. The other three, festooned in black jodhpurs, black boots, black shirts and black jackets with “Transit Police” written in big white letters on their backs, all of which I take to be a new police high fashion statement for maximum intimidation or simply the product of a Versace-jaded uniform maker, stood by the explosives residue sniff machine with Fido, a reassuring golden Labrador on a leash. If the dog had been a German shepherd… well I am sure by now you get the idea.

I got off at Back Bay Station, and this time, there were six cops standing by the entrance to the subway, conveniently located 75 feet from the Dunkin’ Donuts stand. Half of them were in the ersatz Versace outfits; the other three were in regular Boston police garb. No Fido, no sniff machine. They were just watching when I passed.

Suspicion-less Searches Are Legal

Welcome to America, where all of this is now right and proper. Yes, indeed, it is constitutional to stop and search persons entering or on mass transit without any reasonable suspicion that they are concealing something illegal like an explosive device. It started in New York City. Boston simply copied New York City’s guidelines, which had been declared constitutional by the federal 2nd circuit court of appeals, and at the former Governor Mitt Romney’s imperial demand, instituted a local stop and search process.

You can refuse to have your bag searched. But then you must leave the station, or suffer arrest for trespassing. The logic of the federal appeals court is quite interesting for what it reveals about our new Orwellian world. Because everyone is searchable without any judgment of suspicion on the police’s part, it is legal. The 4th amendment guarantee against unreasonable search and seizure that in many areas of law restricts police searches to those whom they suspect of a crime or who arouse suspicion of criminal intent no longer applies to subway and bus riders. Any city that wants to conduct “suspicion-less” searches on their mass transit can. The judicial trick is that because no one is under suspicion, everyone can be under suspicion. Anyone’s rights can be violated so long as everyone’s rights can be violated. Call it equal opportunity rights violation.

Why can “the state” do this? Another extraordinary piece of legal legerdemain: who is the state if not the representative of the citizens? Well, guess again. The state, like the corporation, that other brilliant piece of Philadelphia lawyering, is a legal person with “interests.” It also has “special needs.” When the state decides it needs to violate our rights to protect us, in this case from terrorism, so it can, as long as it does so indiscriminately. The Appeals Court in Brendan MacWade versus Raymond Kelly (460 F.3d 260 U.S. App.) found the fact that New York’s and now Boston’s suspicion-less stop and search operations are made to seem “random, undefined, and unpredictable,” so that the terrorists won’t catch on, an attractive feature of the policing at whatever subway station where the police find themselves. Now that would a first – color-blind justice in America. I don’t believe it. Further the court seems unaware of the fear such tactics create in ordinary persons feel when they find cops in their face unexpectedly, dressed in black and equipped with guns, a machine, and a dog, and demanding that they surrender their bags.

What’s good for courts is bad for people. You are not even permitted to develop a normal expectation, as in airports, that you will be searched. It is the perfect counter-terrorism. Like they used to say about slavery, the key is to make them stand in fear.

The suspicion-less stop and searches don’t even have to work. Don’t bother us with details, the Appeals Court says in MacWade. Quoting from a 1990 Supreme Court decision, the Appeals Court says that the decision to stop and search without suspicion of wrongdoing should be left up to the state whose agents “have a unique understanding of, and responsibility for, limited public resources.” It concludes that it is not part of the Court’s charge to assess the effectiveness of a program. It only passes on whether a program is a reasonably effective means of addressing the problem at hand, and then, the presumption is that the state knows best.

This notion really sets the mind in motion. Suppose a city is facing a drought, and the water commissioner decides that the most reasonably effective way of preserving the water supply is turning off everyone’s water. Why not? He is the commissioner after all, an agent of the state. Who know best the problem and the solution? Suppose a police commissioner determined that the most reasonable way to catch a posse of drug pushers was to barricade them in their houses until they gave up. Should they die of starvation, would the court go after the police commissioner or decide that state’s special needs entitled the commissioner take action as s/he thought fitting? Or as once was the case in Philadelphia with the group called Move, when police decided in May 1985, that they couldn’t serve them with a warrant. They bombed the house, killing eleven people inside, and set a neighborhood afire. Public safety, the city argued, demanded it. The city paid restitution to sixty-two families burned out of their homes, and even compensation to two Move survivors, but no police officer, or mayor, was ever brought to trial.

Measures for Social and Self-Defense

In suspicion-less searches, remember the state too asserts its special needs, and they are of the best kind: terrorist threats to public safety and national security. The appeals court in MacWade took the state’s agents in the New York case, including former White House anti-terrorism expert Richard Clarke, as the authorities best able to judge what is necessary. And, aside from requiring a formal showing that the solutions fit the problems that threaten the state’s special needs, the courts will set aside usual constitutional scruples, and not even ask whether the actions work or not. And you thought the Sun King and his kind were dead.

It turns out that in Boston at least, it is a good thing for the Commonwealth that it doesn’t have to prove effectiveness. According to reporter Mac Daniel in the January 31,2007 Boston Globe, the cops have stopped and searched 2500 people between October 10, 2006 and December 31, 2006. No explosive devices and no weapons. Of the 27 positive initial hits, between the sniff machine and the sniffing dogs, they were sorted out as benign. Among the things that make you sniff-positive, it turns out, are hand crème and asthma medication. Did you ever think your 4th Amendment rights could be violated for using Vaseline Intensive Care?

The Massachusetts ACLU notes that the number of searches is “infinitesimally small,” and calls suspicion-less stops and searches “a pretend security measure.” An odd position, it seems to me. Would they prefer that more persons be stopped and searched and have their constitutional rights violated?

The Massachusetts chapter of the National Lawyers Guild, according to Jeffrey Feuer, is eschewing a direct court challenge until or unless a really favorable case comes along. Why precipitate at this point a U.S. Supreme Court ruling that holds suspicion-less stops and searches constitutional, seems the reason. Instead they are working with state legislators on a law requiring the transit authority to show what there are doing, whether it technically can catch dangerous explosives, and how much it is costing. They hope that the transit authority will be forced to abandon the program on the grounds that it is both ineffective and very costly.

In the meantime, the Massachusetts ACLU website offers advice as to what to do if you are stopped by the police. They are good for any occasion, so keep them on the refrigerator with the picture of your Fido:

o Think carefully about your words, movement, body language, and emotions.
o Don’t get into an argument with the police.
o Remember, anything you say or do can be used against you.
o Keep your hands where the police can see them.
o Don’t run. Don’t touch any police officer.
o Don’t resist even when you believe you are innocent.
o Don’t complain on the scene or tell the policy they’re wrong or that you’re going to file a complaint.
o Do not make any statements regarding the incident.
o Ask for a lawyer immediately upon your arrest.

The Lawyer’s Guild adds a practical touch. Go to their website and download a sheet containing handouts that can be cut into little, business-size cards. They read:

“To Whom It May Concern: I am handing you this card because I choose to exercise my right to remain silent and to not answer your questions. If I am detained I request to immediately be allowed to contact an attorney. I will exercise my right to refuse to sign anything until I am allowed to speak with my attorney.”

Carry this card at all times. You never know when you’ll get lucky and be the tenth person hustling after that train. Random and indiscriminate, it can happen to you two or more times on the same day. Do keep multiple cards handy. Of course, do not touch them with hand crème or put them next to your asthma inhalator.

It goes without saying that shouldn’t pet Fido, or, according to the ACLU, the police officer. For those of you who are opposed to losing your constitutional rights, have authority issues, or just have a thing about uniforms, keep your head down, keep walking, and don’t get aroused.