Archive for October, 2008

DC Metro “Random” Searches are Unconstitutional – And They Pretty Much Admit It

Wednesday, October 29th, 2008

DC Metro has implemented a “random search” policy.1 It justifies the searches (in light of the 4th Amendment) by stating that the searches are voluntary. In other words, if you don’t want to be searched, you can just not take the metro.

Metro Transit Police Chief Taborn asserts that a 2nd Circuit Court of Appeals case that allowed New York subway to continue searches is what grants DC Metro “authority” to conduct its own searches.2 NEWSFLASH: Just because a federal court in a different jurisdiction found a particular policy to be not a constitutional violation in that particular location doesn’t “grant authority” for others to do the same. It sets precedent, certainly, but not authority. Authority would be given based on a state or federal law, clarified by regulation, if necessary. The court case merely gives Metro the confidence to carry out its policy without worrying too much about losing a lawsuit.

Where does constitutionality come into play? Why, the Fourth Amendment, of course. You know, the one George W. Bush abolished (among others)? Here’s what our former amendment said:

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.

Metro’s policy is that since you’re being intercepted supposedly randomly for a search prior to paying fare for access to the transportation system, you have the right not to be searched. However, “refusing” to be searched would prevent your ability to enter the transportation system. Compare it to a government building’s metal detector/bag search at each entry point. You could walk into the pre-search area, see that there’s a search taking place, and you could turn around and leave. You keep from being searched, but you also can’t enter the building.

When asked about potential infringement of the Fourth Amendment, Chief Taborn rebuts, “This is a consent search.”

In the Washington Post discussion with Chief Taborn, a questioner asks:

I am opposed to these searches and plan on refusing any Metro officer’s request to go through my bags. Because I’ll be allowed to refuse search and turn around without being detained, I will simply enter the Metro through another escalator or elevator. How do you plan on addressing this loophole?

Chief Taborn replies:

You may choose not to be searched and leave the station with your bags or other items. We do have a plan to address suspicious behavior.

(emphasis added)

Perhaps I’m reading too much into the reply, but if you add it all up, it really reads like this:

If you want to take the metro, you subject yourself to being searched. If you “refuse” to be searched (i.e., if you exercise your right not to be searched), you will raise suspicion that you might be trying to avoid being searched, and therefore anyone who refuses to be searched will be observed, just in case that person tries to use another entrance. Which, of course, isn’t illegal. And, our tracking, identification, suspicion, and future potential apprehension of anyone doing something like that is somehow constitutional.

Let me give you an analogy that I think will play out in the coming months as this “random” search is implemented. If a police officer comes to your house to ask you some questions about some crime that was supposedly committed in the area, and you step outside your door to greet the officer, bringing your door shut, and then proceed to tell the officer your name, when asked, but decline to answer further questions, and also politely decline to give consent to search your home when the officer asks (even to the point of nearly insisting (you’ve seen Law & Order) ), and, if after all that, the police officer pushes you aside and enters and searches your home anyway, and later in court asserts that your refusal to give consent to search your home was, in itself, suspicious, then any charges brought against you for something found in your home by that officer would most likely be dropped, because refusal to consent to a search is not probable cause!3

So, if Metro police agents notice that you refuse to be searched at one entrance to a Metro station, and then you amble down to the next Metro station, and try to enter there, can the Metro officers radio ahead to all stations to be on the lookout for you, and to refuse you passage, and to have you apprehended for trying to avoid being searched? Of course they can. And they would. And they will.

So, what, as a citizen, can you do? What should you do?

The Citizen’s Guide to Refusing DC Metro Searches, at http://www.flexyourrights.org, supports the notion that refusing being searched is not cause for suspicion (or shouldn’t be), but gives some helpful tips to avoid getting shot in the process of refusing. Briefly:

-Be calm
-Don’t chat
-Don’t physically resist (even though you have rights, you don’t want to get the shit beat out of you to defend them — the police could actually have probable cause to search you for other reasons that you might not be aware of)
-Don’t run (lest ye be shot)
-Report abuses (and keep notes of names, locations, times, etc.)

Good advice for sheepdom, but, unfortunately, if you want to get to work, sometimes you just gotta say “baaa.”

What can you do beyond that? You could try to make yourself a martyr to push a case up to the Supreme Court (which, of course, would side with Metro). You could try to pass legislation preventing these searches (lobbying, getting the word out, whatever). You could just not ever take the metro. You could break the system. I’m not going to tell you how to do the latter, or that you should do it, but sometimes that actually works.

If you’re curious, the key to the MacWade case (that allowed New York subway the ability to keep searching) is the narrow application of the searches. Specifically: (emphasis mine)

“The Program is narrowly tailored to achieve its purpose:
1. passengers receive notice of the searches and may decline to be searched so long as they leave the subway;
2. police search only those containers capable of concealing explosives, inspect eligible containers only to determine whether they contain explosives, inspect the containers visually unless it is necessary to manipulate their contents, and do not read printed or written material or request personal information;
3. a typical search lasts only for a matter of seconds;
4. uniformed personnel conduct the searches out in the open, which reduces the fear and stigma that removal to a hidden area can cause;
5. police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority.”4)

I consider the highlighted text the keys to perpetuating or breaking the policy. If Metro starts abusing passenger rights by giving pat-downs, detaining people for five or ten minutes, or by “miscounting” such that the supposed randomness is infused with an unhealthy dose of prejudice, then we need to fight back and have the policy nixed, changed, or heavily regulated.

What irks me as much as this blatant infringement on my rights (with no worthy justification, since hundreds and hundreds of people aren’t being screened — there’s NO actual security or prevention, just weak intimidation, especially since potential passengers can refuse to be searched) is that those whose rights are being stepped upon are the ones having to pay for it, through increased metro fares. Oh, did I also mention that it’s even the non-metro-riding taxpayer who is also paying for it? The government just gave Metro $1.5 billion to fix itself.5

I mean, we all did.

—–

Some handy links:

Metro Should Bag the Searches

Brief and nearly pointless “discussion” with Metro Transit Police Chief Michael Taborn

MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006), The 2nd Circuit Court of Appeals case that Taborn claims gives Metro “authority” to do the searches

The Metro press release

The Metro FAQ

Wikipedia entry on the Fourth Amendment

Wikipedia entry on Consent Searches

“I do not consent to a search; Am I free to go?; I want a lawyer.” (warning, very green)

ACLU: Know Your Rights: What to Do If You’re Stopped by the Police

StOP

  1. http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument&orgId=1593&topicId=21355&docId=l:875380583 [<]
  2. “Legal authority to inspect packages brought into mass transit systems and other venues has been upheld by the courts in numerous jurisdictions. Metro�s inspection program is very similar to the one conducted in the subway system in New York City. The United States Court of Appeals for the Second Circuit has specifically ruled on the constitutionality of the New York program in MacWade v. Kelly.” http://www.washingtonpost.com/wp-dyn/content/discussion/2008/10/27/DI2008102702325.html [<]
  3. See United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997). (“refusal by itself does not give rise to reasonable suspicion or probable cause”). [<]
  4. MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006 [<]
  5. http://media.www.gwhatchet.com/media/storage/paper332/news/2008/10/13/News/Federal.State.Governments.To.Give.Metro.1.5.Billion.For.Upgrades-3483736.shtml?pop [<]

The Capsule

Friday, October 24th, 2008

Recently, I attended a wake. I expected it to be like every other wake I have ever attended: sign the guest book, console the survivors, look at pictures the family has on display and share a few stories. This wake went much the same way, just as I expected.

However, this wake offered a surprise. The coffin of the recently deceased contained a built-in safe for placing various keepsakes that will be buried with the deceased. A number of questions rolled through my mind. Why would a coffin need a safe? Of course, people do rob graves, but I don’t think grave robbers are that common, and to place keepsakes in the safe and not valuables seems to nullify the reason for a safe. Who holds the key? It would seem illogical for the deceased to hold the key for the deceased could never use it, but also, if the grave was robbed the deceased would offer the key to the robber, again nullifying the use of a safe.

But, there was yet another surprise lurking within this vessle of eternity. A time capsule. This was not the keepsake safe, nor was it another place to store items that could be examined by a future archaeologist or anthropologist (who could, ironically, be classified as grave robbers but just ones who are well-educated). No, this was a tiny little pill-sized electronic time capsule, a computer chip, containing identifying information about the deceased including the obituary, photos, documents, and more. At the time, one explanation offered for this time capsule was that if the coffin were ever disturbed and displaced (grave robber? earthquake?) the coffin and its occupant could easily be identified for proper return to the gravesite. However, all of that other information certainly wouldn’t be needed to return property to its former address.

So, for what purpose do the safe and electronic time capsule exist? The deceased have often been buried with objects either important to them or what the survivors think will be needed by the deceased in the next realm. The only thing accomplished by placing objects in the coffin is that they will be buried and forever gone just like the deceased themselves. The electronic time capsule is a bit different. It is going on a journey with no destination. Dare I say a road to nowhere? Is it important to know exactly who is buried in the coffin 100 or 500 years from now? The only reason I can think of is idolatry. The process and ceremony of a funeral and burial have been, for centuries, an exercise in personal idolatry. Now it is being taken to a whole new level. Instead of just being a form of worship of the recently deceased, coffins with electronic time capsules serve to tell the future grave diggers or catastrophe workers exactly who you are — as if it really mattered.

This was a Christian funeral. Isn’t the first commandment that you shall not have/woship any other gods? Aren’t you supposed to avoid graven images? The words spoken by the pastor contained the ever constant words at every Christian funeral, “ashes to ashes, dust to dust”, but from whence came nothing certainly returned with something more. Who says you can’t take it with you?

Jim Croce may have wanted to save time in a bottle, but he was simply behind the times. We now save time in a small capsule and allow our successors to swallow it at will. Personal idolatry for Christians is not just a good idea — it’s a requirement.

Spreading Democracy?

Tuesday, October 21st, 2008

That was what we were told by our elected and/or appointed leaders when we invaded foreign countries. The United States is “spreading democracy”. Exactly how do we do that?

I realize that members of Al Qaeda plotted to attack symbols of the United States (World Trade Center, Pentagon) in the attempt to undo the foundation of our country, and that the controller of the plot was a potentate located in Afghanistan. Our invasion of Afghanistan was for the purposes of finding Osama bin Laden and for weeding out the taleban who ruled Afghanistan and who afforded bin Laden a safe haven. Spreading democracy was not likely the first or second goal we had, but how is it doing as a third goal?

In our primary goal to capture Osama bin Laden and bring him to justice, we have failed completely. We continue to be mocked by bin Laden whenever he chooses to issue a video update. His exact whereabouts may or may not be known, but the longer we go in capturing him not only points to our own impotence but bleeds time, energy and money from other things that could actually help our country. In our secondary goal to weed out the taleban from Afghanistan, we have largely failed. Sure, the taleban may not be in direct control of the government any longer, but the taleban cannot be eradicated. The taleban, however organized, represent a thought process. They can control from the top down, the bottom up or from the side. Apparently, the taleban continue to control Afghanistan from the side. A deep thought process still alive and well.

In the examination of our third goal, the spreading of democracy, we have failed once again. Today, we have in the news the story of Parwez Kambakhsh,1 a college student in Afghanistan who has been prosecuted for … guess … no really, take a guess. Oh, c’mon, what do you think he could be prosecuted for? Rape? Drugs? Theft? Securing materials to make bombs? No, no, no — nothing that exotic. No, today we have learned that Parwez was convicted of free speech. That’s right! What we consider the bedrock of democracy, the right of free speech as granted by the First Amendment to the Constitution of the United States, has completely passed by the Afghan courts. They have convicted Parwez of blaspheming Islam because he asked questions about womens’ rights within Islam in a university class. I know what you are thinking — Parwez must have done something else, something more extreme? Well, yes, he did. He printed an article from the Internet that asks many of the same questions and [illegally] distributed that article.

What the hell is happening here? Our government spends billions every month to occupy two countries for the purpose of spreading democracy and we have yet another example of how the basic tenets of democracy that we cherish are flagrantly ignored by the courts of another country. We have been in Afghanistan for seven years — just how long does it take to instill in another culture the basic civil rights and basic premises of democracy? Worse, and as a matter of high protest, the courts in Afghanistan can take action on a blasphemy of religion. That’s not just a violation of the First Amendment, it’s a repudiation of it. This is what religion offers. There is no equality in religion. It is impossible. The Afghan courts are essentially arms of the taleban — we didn’t weed out the taleban, we just moved them over to the side and put them in a place where they can control the law.

We need to get out of Afghanistan (and Iraq) as quickly as possible. We obviously are completely incompetent in meeting any of our goals and we are wasting money that we could desperately use for ourselves. A friend of mine used to say frequently when faced by an impossible circumstance, “You can’t teach a pig to sing. It just frustrates you and it annoys the pig.” Let’s stop trying to teach the pig to sing.

Spreading Democracy

  1. Afghan court spares life of inquisitive journalism student, CNN.com, October 8, 2008. [<]

Sex on the Beach: A Clash Between Cultures

Thursday, October 16th, 2008

If you keep up on the latest travel destinations, chances are you’ve heard the name “Dubai” popping up a lot more often.  The most populous city of the United Arab Emirates, Dubai has lately been on the front line of cultural growth, with new hotels popping up all the time where tourists can enjoy free-flowing alcohol before heading off to the beach in skimpy bikinis.  Sometimes called the Las Vegas of the Middle East, Dubai has been selling itself as the latest and greatest party hot spot, a liberal oasis among such conservative countries as Saudi Arabia, where alcohol is forbidden and even foreign women are required to wear enveloping black robes when in public. 

What you’ve probably not heard, however, is that beneath the coat of shiny, liberal paint lies a legal culture based on strict Muslim laws.  Two Britons, Michelle Palmer, a Dubai resident, and Vince Acors, a visiting tourist, have recently been made painfully aware of this fact.  The two met at an all-you-can-drink champagne brunch and later made their way to the beach, where an unidentified resident reported them to the police for indecent behavior.  After spending a night in jail, they were released but forbidden from leaving the country until a court could determine their fate.  Though they both maintain they did not have intercourse, in Dubai, even holding hands, hugging, and kissing in public are against the law.1 

Under charges of having sex before marriage, public indecency, and drunkenness, a Dubai judge today sentenced them each to three months in jail, a $350 fine, and deportation from Dubai after serving their sentences.  Ms. Palmer has already been fired from the job she has held for several years in Dubai’s publishing industry.2  The judge faced pressure from all sides in deciding this case, which could have potentially carried sentences of up to two years imprisonment.  On the one hand is the indigenous population, which has long raised objections to what they consider to be the city’s culture tipping in favor of foreigners.  Although Emiratis make up only 15 to 20 percent of the population of Dubai, which is primarily comprised of Asian migrant workers, Western expatriates, and tourists, they feel that their religious values ought to be enforced on everyone, and the laws currently stand in their favor.  On the other hand is the government, which doesn’t want to deter tourists from travelling to the area.  The possibility of being arrested for holding hands with someone doesn’t exactly look nice on a travel brochure.   

The government, however, have themselves recently been bending to the pressure placed on them by the indigenous population.  A few days after Palmer and Acors were arrested, the police force stepped up its efforts, detaining dozens of people, the vast majority of whom were tourists, for topless sunbathing and other acts deemed “indecent.”  The government has also tightened its immigration rules, visa policies, and work permits.3  What this essentially boils down to is this: Dubai cannot have its cake and eat it, too.  If they want to be on the cutting edge of liberal tourist destinations, they are going to have to reform their laws.  The extremely unfortunate Ms. Palmer and Mr. Acors have brought Dubai’s strict Islamic laws to light, and the glittery paint on the city has been tarnished.  In a way, perhaps this is a step in the right direction, as the public eye is now focused, not just on the fancy hotels and sunny beaches, but on the potentially serious consequences of participating in what would be normal, everyday behavior in many cultures.  Dubai’s tourism economy will likely suffer as a result, and perhaps I’m being optimistic, but maybe they will be forced to examine their laws and how other cultures are affected by them.  I, for one, will not be travelling to Dubai anytime soon. 

-Laura

  1. http://www.thenational.ae/article/20080707/NATIONAL/480879389/0/FOREIGN [<]
  2. http://www.msnbc.msn.com/id/27201467/ [<]
  3. http://www.msnbc.msn.com/id/27201467/ [<]

Virginia Ban on Political Clothing at Polling Places is OK

Thursday, October 16th, 2008

While the battle over voter registration rages,1 a battle is won (or lost) in Virginia.

The Virginia State Board of Elections has decided to uphold Virginia’s ban on “political clothing” at polling places.2

Under the Board’s Policy 2008-007,

… the Code of Virginia, § 24.2-604 states, in part:

During the times the polls are open and ballots are being counted, it shall be
unlawful for any person (i) to loiter or congregate within 40 feet of any entrance
of any polling place; (ii) within such distance to give, tender, or exhibit any ballot,
ticket, or other campaign material to any person or to solicit or in any manner
attempt to influence any person in casting his vote…

WHEREAS, the Code of Virginia does not define “exhibit;” and
WHEREAS, “In the absence of a statutory definition, the plain and ordinary meaning of
the term is controlling.” … and
WHEREAS, Merriam-Webster dictionary defines “exhibit” as: “a: to present to view:
as a: to show or display outwardly especially by visible signs or actions; b: to have as a
readily discernible quality or feature; c: to show publicly especially for purposes of
competition or demonstration;” and
WHEREAS, the Code of Virginia does not define “other campaign material;” and
WHEREAS, Merriam-Webster dictionary defines “material” as: “the elements,
constituents, or substances of which something is composed or can be made;” and
WHEREAS, campaign materials are materials distributed by or for campaigns and the
Code of Virginia, § 24.2-945.1, was amended in 2007 to adopt the express advocacy
standard for campaign contributions and advertisements; and
WHEREAS, courts applying the express advocacy standard have held subject to
regulation communications that cannot reasonably be interpreted other than as expressly
advocating the election or defeat of clearly identified candidate…..
WHEREAS, the Code of Virginia recognizes sample ballots may be a form of prohibited
campaign material if exhibited within the prohibited area; § 24.2-622 states, in part:
Voters may take sample ballots into the voting booth or enclosure, but
shall not give, tender or exhibit such ballot to any person, other than an
assistant designated under § 24.2-629, while inside the polling place or
within the prohibited areas designated by § 24.2-604.
Now therefore be it
RESOLVED, by the State Board of Elections under its authority to issue rules and regulations to
promote the proper administration of election laws and obtain uniformity in the administration of
elections pursuant to § 24.2-103, that
The phrase, “it shall be unlawful for any person… to…exhibit… other campaign material”
within the Code of Virginia, § 24.2-604 shall be interpreted as:
No person shall be allowed to show, display, or exhibit any material, object, item,
advertisement, or piece of apparel, which has the purpose of expressly advocating the
election or defeat of a clearly identified candidate.

Any person who does so will be asked by the officers to cease from showing, displaying or
exhibiting the material, object, item, advertisement, or piece of apparel, or to remove or
cover it until they leave the prohibited area and polling place.
Nothing in this policy shall prohibit any person from bringing but not exhibiting any
campaign material within 40 feet of any entrance of any polling place.

(emphasis added)

The ACLU of Virginia has asked the State Board of Elections to allow political messages on apparel at polling places, lest a ban violate the First Amendment right of freedom of speech.3

“We believe that the Virginia law can and should be interpreted to allow individuals to wear political apparel when they vote,” said ACLU of Virginia Executive Director Kent Willis, “and that is what we have asked the State Board of Elections to do.”

The ACLU’s request letter (which, by the way, didn’t do any good, since it was on October 14 that the State Board of Elections established the ban) addressed the ambiguity of the decision, suggesting that it would cause confusion for the already overworked volunteer poll workers trying to draw distinctions between support for a particular candidate and generalized political advocacy. What if, the letter queries, a voter wears a pro- or anti-George Bush button? Why should that be banned from the polls if George Bush isn’t even a candidate?

I haven’t found much support in the webisphere for the ban, so I’m going to take a stab at it. And I think my opinion might be more valid than someone who lives in California or some other state, by the mere fact that I both live and vote in Virginia (please don’t hunt me down and kill me).

My polling place is an elementary school, but in Virginia, polling places can range from churches to gymnasiums, and are quite often schools. Here is what I experience when I walk up to the school entrance on election day:

There are usually two tables just outside the entrance, with about three or four people hanging around each one, usually with some button, hat, or mere proximity to the table to identify the person as a Republican or Democrat. Sometimes they even wear blue or red shirts. Occasionally a green or independent party supporter will be lingering around, as well. The tables are stocked with red or blue sheets of paper with a hit list of names and issues voters should vote for to vote along party lines. I remember my first visit to that polling place, and thinking how offended I almost was at the prospect of someone “telling” me how to vote. I’ve since changed my mind. The sheets are very handy, and they give me an opportunity to review my votes while I wait in line.

But I don’t pick up just one sheet. I pick up one sheet for each party. Is that because I’m undecided? Because I pick a few from one, a few from the other? Do I have some secret plan to enter two exactly opposite set of votes? No. None of the above. I take both sheets because I am of the mind that I have a constitutional right to vote for a candidate or issue without my neighbors knowing how I voted. The people who frequent my polling place are the people who live next door to me, down the street from me, whose kids play with my kid. They’re people who teach my kid, teach other kids, walk their dogs on the sidewalk in front of my house, and who populate the neighborhood watch. When I go up to my polling place, the chances that some of those people there know me or have seen me are fairly good. I don’t want to (as McCain would say) telegraph my punches. That play on words would have worked better if I lived in Florida, of course, but the issue of intimidation (yes, even I get intimidated) still stands.

I think it’s a great idea to have a ban of political apparel within 40 feet of any entrance to a polling station. I don’t think that would affect the cheat sheets, but I do think it would keep up the appearance of neutrality of the polling place itself. Volunteers can’t wear political apparel (that’s a no-brainer), but a good number of people do loiter around, trying to nudge (or hound) others into voting for or against a particular candidate. Don’t we get enough of that on the news, in the newspaper, in television ads, at work, everywhere?

Despite my appreciation for the ACLU, there’s no free speech issue here. This is all about protecting the right of people to vote without being intimidated. It’s about the voting places not being public forums, but, instead, being temporary government facilities designed to allow residents to vote. Just imagine if we were living in the first days of public school integration, and some fervent advocate for free speech supported the notion that pro-segregationists could stand right at the doors of the schools while wearing anti-black slogan t-shirts, prominently displaying nooses, tar babies, and burning crosses. That’s despicable behavior and intimidation at its worst. Obviously, standing at the doors of a polling station wearing McCain masks, shirts, and baseball caps isn’t at the same level of intimidation as a KKK member being allowed to stand at the doors of a newly de-segregated school wearing a full Klan gown and hood, but it’s still not right, and it’s not a matter of free speech — it’s a matter of respect.

The only issue I foresee is where someone who doesn’t know about the ban, or who is merely wearing a button or lapel pin (not a full Barack Obama mask and suit getup), heads to a polling station and is turned away by the volunteers. Of course, that person can merely remove the offending item, but sometimes people wear political shirts to the polls, and often they won’t have brought along a change of clothes. What I would do is allow them entrance to vote, if there doesn’t seem to be a big problem. The heart of the matter isn’t the occasional pro-whatever button or shirt, it’s the groups of pro-whatever supporters hanging out with pro-whatever attire, acting as what could be seen as a loitering bully. Perhaps the ban should have been worded differently, so as not to create ambiguity and confusion, but I think the general idea is still sound.

A bit more clarification for the unconvinced:

Although free speech is still an underlying foundation of every public activity, if a specific purpose exists that certain free speech potentially disturbs, and that purpose is important for the perpetuation of free speech (or other important rights), then by limiting free speech narrowly to avoid having it disturb the purpose is a valid measure.

So, in this case, the purpose of facilitating unhindered voting for everyone is more important, in that very limited scope of the voting area, than free speech.

  1. Acorn, Michigan voter purge, etc. [<]
  2. Virginia is not the only state with this issue. Pennsylvania, and possibly other states have either instituted or considered a similar ban. [<]
  3. http://www.acluva.org/newsreleases2008/Oct10sbe.html [<]