An ad hoc TSA out of the MBTA! group help a march and rally Saturday on Boston Common to protest the ongoing warrantless, suspicionless searches of passengers’ property on the Boston-area MBTA subway and streetcar system.  The protest was endorsed by groups including Occupy Boston and the Mass Pirate Party.

We’re encouraged to see growing resistance to the TSA’s mission creep in expanding its warrantless, suspicionless searches, interrogations, and seizures from air to surface transportation.  These searches on the “T” and other transit systems were illegitimate and unconstitutional when they started in 2004, and they remain so today.

If there’s a particular lesson here, it’s in the importance of resistance from the start of new encroachments on our rights.  No matter how “special” the circumstances in which new police programs are instituted, or how “temporary” they are claimed to be, the natural tendency is for them to become permanent.  “Enough is enough. We’ve been sleeping on this,” one participant in Saturday’s march and rally told the Boston Herald.

Checkpoints and dragnet searches on the MBTA were initiated in 2004, ostensibly as part of “special” and “temporary” security measures for the 2004 Democratic Party national convention in Boston.  They drew immediate protests which continued through the convention.

A Federal judge denied a request by the National Lawyers Guild for a preliminary injunction against the searches. Because the lawsuit had been framed in terms of the issues specific to the area around the convention, the lawsuit foundered after the convention delegates went home. But the searches continue.

Ruling last week in a case brought by a man who was falsely arrested for displaying the text of the 4th Amendment to the Constitution written on his chest during a “secondary inspection” by the TSA at the  Richmond, VA, airport (RIC), the 4th Circuit Court of Appeals rejected an appeal seeking the dismissal of a Federal civil complaint against TSA, DHS, and airport officials, police, and checkpoint staff.

The ruling means that the claims for damages by U. of Cincinnati architecture student Aaron Tobey (Tobey v. Jones et al., originally filed as Tobey v. Napolitano et al.) will go back to the District Court to proceed toward a trial. (Mr. Tobey is represented by attorneys from the Rutherford Institute.)

Even the dissent from the 2-1 decision (containing such gems as, “[I]t is sometimes necessary to make small sacrifices to achieve greater gains or, as in this case, to avoid catastrophic loss”, a bizarre statement given the lack of any allegation that Mr. Tobey, any of his actions, or the words written on his chest posed any but a political “threat”) admitted that, “TSA screening agents are not natural objects of affection…. TSA agents… can and do make mistakes, and there is always the chance that imbuing subordinate officials with a bit of authority can make them tyrants in their spheres.”

In rejecting the TSA and police appeal, and allowing Mr. Tobey’s case to go forward, the majority of the Circuit Court panel made several key rulings upholding travelers’ 1st Amendment rights and continuing and extending a line of decisions upholding personal liability on the part of individuals responsible for illegal actions at checkpoints: Read More →