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[Print This] [Email This] UNITED STATES DISTRICT COURT CIVIL ACTION NO. 04-11652-GAO AMERICAN-ARAB ANTI-DISCRIMINATION Plaintiffs, v. MASSACHUSETTS BAY Defendant. ORDER _____________________________
O’TOOLE, D.J. The plaintiffs brought this action to obtain a declaration that a policy adopted by theMassachusetts Bay Transportation Authority (“MBTA”) permitting security searches of handbags,briefcases and other items carried by passengers on the MBTA’s trains or buses violates the guaranteeof the Fourth Amendment to the United States Constitution against unreasonable searches andseizures. The plaintiffs have sought a preliminary injunction against enforcement of the policy. Atthe hearing held on their motion, the plaintiffs, without waiving their broader objections, narrowedthe focus of the requested preliminary relief to one instance of the implementation of the policy. In connection with the security planning for the Democratic National Convention being heldat the Fleet Center in Boston from July 26 through July 29, the United States Secret Service issued directives restricting access to streets and highways that pass near the Fleet Center and requiring allpersons who enter within a territorial zone surrounding the Fleet Center to submit to securitysearches. Some of the MBTA’s public mass transit vehicles pass through or very nearly by thedesignated zone. Specifically, some MBTA buses carry passengers to and from suburban locationsvia Interstate Route 93, which passes close by the Fleet Center, and the MBTA’s Orange Linesubway passes either underneath or very nearly underneath the Fleet Center. The MBTA hasundertaken to conduct an individual visual search of the hand-carried items of all passengers on busespassing by the Fleet Center on Route 93 and all passengers on Orange Line trains before those trainsdepart either the Community College station for inbound trains, or the Haymarket station foroutbound trains, and pass under the Fleet Center security zone. There is no selectivity in thesearches; every passenger’s carried-on items are examined. The MBTA argues that the searches are justified because they are “administrative” securitysearches similar to the security inspections of personal belongings conducted at airports and theentryways to certain kinds of property, such as courthouses and military installations. Suchadministrative searches have been upheld in the face of objections that they violated the FourthAmendment. See United States v. Doe, 61 F.3d 107, 109-110 (1st Cir. 1995) (noting that “[r]outinesecurity searches at airport checkpoints pass constitutional muster because the compelling public interest in curbing air piracy generally outweighs their limited intrusiveness”); Torbet v. UnitedAirlines, Inc., 298 F.3d 1087 (9th Cir. 1998) (upholding airport security search); Morgan v. UnitedStates, 323 F.3d 776 (9th Cir. 2003) (upholding search on military reservation); McMorris v. Alioto,567 F.2d 897 (9th Cir. 1978) (upholding search at entrance to courthouse). See also Chandler v.Miller, 520 U.S. 305, 323 (1997) (suggesting that “where the risk to public safety is substantial andreal, blanket suspicionless searches calibrated to the risk may rank as Ôreasonable’ Ð for example,searches now routine at airports and at entrances to courts and other official buildings.”). There is a catalog of hijackings and other terrorist incidents involving air transportation thatnow spans decades, and much attention has been given as a result to airport security, as some of thecited cases indicate. But other transportation systems, including urban mass transit systems, havebecome targets of terrorists as well. The MBTA calls attention to two subway bombings thatoccurred earlier this year, one in Madrid on March 11, 2004, in which over 200 persons were killed,and one in Moscow on February 6, 2004, in which approximately forty persons were killed. Therewere many more persons seriously injured in the bombings. The Department of Homeland Security has warned that credible intelligence indicates thatterrorists continue to plan for a large-scale attack within the United States aimed at disrupting theNation’s “democratic process.” It is at least plausible, if not likely, that the attack in Madrid wastimed to maximize its disruptive effect on the Spanish elections, pointing up the attractiveness toterrorists of timing a terrorist event to have an impact on the democratic process. It isnot unreasonable, then, to think that national party nominating conventions could become terroristtargets, and when the conventions are held in cities with significant mass transportation systems thatserve the convention locations, it is not without foundation to worry that a terrorist event might beaimed simultaneously at the convention and the transit system. However, while the existence of a terrorist threat against the MBTA or the Fleet Center orboth is real and not imagined, it is much more difficult, if not impossible, to try to assess either thelikelihood or the imminence of such an attack. While the Court is advised that there is no specificintelligence information suggesting that either the MBTA or the Fleet Center is an identified target,there is also no reason to believe that specific information is necessarily, or even frequently, availablebefore a terrorist attack, so its absence cannot be taken to indicate that the facilities are not likelytargets. With respect to airport security measures, the absence of specific threat information abouta particular flight or even a particular airport does not vitiate either the authority or the wisdom ofconducting security screenings generally for all flights. When the threat is to any flight, every flightmay be protected by the security searches. “The essential purpose of the scheme is not to detectweapons or explosives or to apprehend those who carry them, but to deter persons carrying suchmaterials from seeking to board at all.” United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973). There is also no reason to have separate constitutional analyses for urban mass transportationsystems and for airline transportation. There may be differences in the security methods that are usedor in their manner of implementation, but the fundamental issues should not be substantially affectedby the mode of transportation involved. It seems clear, then, that the first essential question to be asked concerning the validity of anadministrative search regime Ð whether there is a substantial governmental need or public interest thatis served by the regime Ð is to be answered in favor of the MBTA’s policy. The next question Ð justas critical Ð is whether the privacy intrusion is reasonable in its scope and effect, given the nature anddimension of the public interest to be served. The intrusion is not insignificant. Passengers are required to open all bags and similar carriedonitems to visual inspection, exposing to view what they would otherwise have kept unseen,including personal items carried in a purse, papers in a briefcase, and the like. Similar intrusions areroutine in airport searches, however, and perhaps in other non-governmental venues as well, such asthe entry gates to sporting events or concerts. The MBTA points to the steps it has taken to mitigate the intrusion. First, it has in a varietyof ways published notice to its riders of the prospect that they may be subject to search. The noticebroadly advised riders that their carried-on items could be subject to search while they were ridingon MBTA facilities. It would perhaps have been desirable for the MBTA specifically to advise OrangeLine and Route 93 bus riders that it was not just a possibility, but a certainty, that their belongingswould be searched if (or when) their journey would take them through the Fleet Center security zone.This deficiency by itself, however, does not require finding the plan to be “unreasonable” under theFourth Amendment, because notice, or notice of a particular kind, while an important factor to beconsidered, is not a necessary element such that its absence automatically vitiates the reasonablenessof the search plan. Notice is a significant factor in the analysis for at least two reasons. First, it tends to reducethe subjective anxiety that MBTA riders might otherwise experience upon being asked to submit tothe inspection of their bags if they had no reason to anticipate the inspection. See United States v.Martinez-Fuerte, 428 U.S. 543, 558 (1976). It also provides an opportunity for persons who do notwant to permit inspection to avoid traveling on the MBTA during the time when security searchesare being conducted. See Davis, 482 F.2d at 913. For the searches directly at issue now, thoseaffecting riders on the Orange Line between the Haymarket and Community College stations andon Route 93 buses, the plan is to limit the searches to the duration of the Convention, andnotice provides riders who object to the intrusion the opportunity to temporarily adjust their plansto avoid it. The second mitigating factor is related. The particular search plan presently at issue is limitedboth in scope and duration. Only those riders whose journeys will actually take them through theSecret Service-designated security zone are subjected to the search. Riders on other segments of theOrange Line, for example, are not asked to submit to search under this application of the policy. Andas noted, the duration of the plan is limited to the four days of the Convention. Finally, the plan cedes no discretion to the officers conducting the inspections. All riders onthe buses and on the trains about to transit the security zone are subject to the inspection, so theofficers do not exercise any choice or judgment about whose bags to inspect. The written planprescribes the inspection method and defines those items that are deemed “prohibited.” The planprovides for supervision of the officers who actually do the inspection, and it requires record keepingso the conduct of the inspections can be reviewed afterward. In sum, the intrusion experienced by the affected riders is very similar to the intrusionsimposed under other, increasingly common, administrative security search regimes. The securityconcerns that motivated the adoption of the scheme are genuine, the scope and duration of the partof the plan that is the focus of the current request for relief are strictly limited, and the publishedadvice that riders on MBTA facilities may be required to submit personal bags and items forinspection prepared riders to expect such searches. In light of these conclusions, the plaintiffs havenot established a likelihood of success on their claim that the inspections as described above violatethe Fourth Amendment’s guarantee against “unreasonable searches.” The motion for a preliminary injunction, as narrowed by the plaintiffs at the hearing, istherefore DENIED.
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