A dozen people handed out flyers to thousands of Metro riders on Wednesday afternoon urging them to defend their rights when transit police ask to search their stuff.
When I walked up to Steven Silverman, the 32-year-old leader of Flex Your Rights, he was trying to discuss the new search policy with three transit police officers near the top of the Dupont Circle Station escalators.
That looked like it was going to be a short conversation, so I asked Silverman to discuss with me what he and the group were trying to accomplish. Like the rest of us, he learned about the search policy only on Monday, the day the transit authority announced it would begin searching people's property before they could ride trains or buses.
As Silverman put it: "They just implemented the policy. They just dropped it."
The yellow cards that Silverman and the volunteers were handing out to Metro riders reprinted the 4th Amendment to our Constitution:
"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."
If James Madison was waiting for an Orange Line train from Vienna, he might boil that down to: The government better have a pretty good reason for wanting to know what's in my knapsack, because otherwise, it's none of their business. (Maybe first he'd ask why the escalator didn't work.)
Silverman's mission: Urge travelers to care about protecting their constitutional rights and to assert those rights when transit police stop them.
"In a free society, people shouldn't have to prove their innocence," he said. "Make a statement: Preserve your dignity and live your respect for the Bill of Rights. This is D.C., the capital of the free world."
Even though the search policy is in effect, he noted, people have the right to refuse the search. "If you choose to refuse, state very clearly to the officer, 'I do not consent to be searched,' then calmly exit Metro," Silverman said.
He urges people to resist the subtle pressure to comply when police ask to search their property. "Very few people actually refuse. Police don't tell you you have the right to refuse."
He thinks these random and occasional searches -- police might set up at one station and plan to search every 15th person approaching the fare gates -- don't meet the constitutional test of reasonableness and don't provide much of a security blanket for riders against terrorist.
"This won't do anything to protect us from the bad guys," he said. "This is not what a free society does."
The 2-week-old random bag search being conducted by Metro Transit Police is already facing pushback. The group Flex Your Rights is not only opposed to the searches, but is encouraging the riding public to exercise its 4th Amendment right against "unreasonable search" by refusing to be searched.
On Oct. 27 Metro announced that it would begin pulling aside random passenger to search bags in an effort to thwart terrorist attacks.
Flex Your Rights has issued a "Citizens Guide" to refusal on its Website and members have been handing out flyers at Metro stations. The flyers spell out step-by-step instructions on how to refuse a search. Step one begins with: "Officer, I do not consent to any searches. I'm going to exit the station." The organization also says: "You do not have to answer any police questions or give any information." While this sounds provocative and like someone is just itching to get arrested or cause trouble, the group insists that "refusal" is well within the rights of an individual and advises against any physical resistance or confrontation.
We, too, have concerns about Big Brother's overreach, and in fact opposed some of the city's "over-the-line" tactics, such as its recent expansion of block-to-block "security" cameras, but this doesn't qualify as over-reaching.
We understand reasonable requirements must be enacted at times to preserve public safety. Random search programs have become necessary since Sept. 11. We've become accustomed to searches at airports, and public rail systems seem to be a next logical step. Such programs have already been instituted - with limited disruption - in New York, New Jersey and Boston. To take an extra 10 seconds to open your bag when asked is not unreasonable.
Metro, which has jurisdiction and arrest powers throughout the 1,500-square-mile transit zone, is not only well within its right to conduct the operation but insists each search takes no more than 8-15 seconds to conduct - posing minimal impact on riders who have nothing to hide and want to easily get on to their destination.
But what Flex is encouraging has the potential to create major disruptions for commuters (imagine if, say, every 10th person decided he or she wasn't going to be searched). Their tactics also could pose undue health and safety risks to passengers and transit police. If Flex Your Rights members don't want to be searched, they should ride Metrobus instead of Metrorail.
The Washington Times -- Letter To The Editors
Thursday, November 20, 2008
When Metro Transit Police announced the new random search program at Metro stations and bus stops, many in the D.C. area naturally were concerned about the legal and practical implications of the policy. Flex Your Rights saw an opportunity to remind citizens of their constitutional rights during a period of heightened public interest in police search powers.
We produced fliers informing Metro passengers of their Fourth Amendment right to refuse random search requests. We explain that individuals who decline a search will be permitted to leave the station or bus stop immediately. We emphasize the need to remain calm and courteous when interacting with Metro police and to share any concerns through the appropriate channels.
So why would we help facilitate noncooperation with a public safety program? Many citizens are unfamiliar with their basic rights when approached by police. In our efforts to provide simple know-your-rights information to the public, we have encountered a common misconception that post-Sept. 11 security measures have invalidated Fourth Amendment rights during everyday interactions with police. We believe it's vitally important that Americans understand and appreciate their constitutional right to refuse a search.
The Washington Times has been the most notable public critic of our response. Citing the possibility of widespread refusals of consent, The Times argued on Nov. 12, "Their tactics... could pose undue health and safety risks to passengers and transit police" ("Just say 'no' to Metro searches? No," Editorial).
Flex Your Rights shouldn't be blamed for the various glaring weaknesses of the program. We carefully modeled our recommendations after information already available from the Washington Metropolitan Area Transit Authority, with added emphasis on politeness toward police. The only significant difference between our information and Metro's was our admitted frustration with the policy and our active distribution of the flier.
Thus, we're confident that our reiteration of the optional nature of the search program will create no additional safety risks for anyone. Metro officials told NBC News that our information was "helpful and accurate."
So, as much as we regret the possibility of having to prove our innocence before being able to board the bus, Metro at least respects our interest in making sure that passengers understand their rights. In turn, we respect Metro's interest in protecting the public. We just don't believe random searches are the answer.
Flex Your Rights