Preliminary injunction against MBTA bag searches denied

The motion for a preliminary injunction against searches MBTA passengers’ baggage without warrants or particularized suspicion was denied this morning, after yesterday’s oral argument , according to the AP.

No meaningful appeal is possible, since the issues had been narrowed (whether by the judge or by consent of the parties is unclear) to certain types of searches that the MBTA claims are limited to the vicinity of the Democratic Party National Convention this week, and the convention will be over (and those searches hopefully ended) before any appeal could be heard.

The MBTA has actually beeen conducting at least three different types of searches. Only the first of these three was considered in today’s ruling, although all three were raised in the complaint:

1. Systematic searches of bags of all passengers on Orange Line trains and certain express busses passing through the otherwise-closed (except with credentials) area around the site of the convention this week in the Fleet Center. (These were the searches the judge today declined to enjoin.)
2. Random searches of every n-th person in a single-file line seeking to enter a station (before they have paid their fare) or board a bus. (These are the searches described in the MBTA Police General Order cited in the complaint.)
3. Selective, non-random searches of passengers, after they have entered paid areas and in some cases on moving trains. (These have been experienced by the named plaintiffs in the lawsuit, as decribed in the complaint, as well as in other publicly-posted eyewitness accounts and in reports to legal observers monitoring the searches. They appear to have been based on appearance or behavioral profiling, the eumphemism for Israeli-style ethnic and racial stereotyping used by Massport and Mass. State Police consultant and former Ben-Gurion Airport (TLV) security director Rafi Ron , who is now apparently advising the MBTA as well. Ron retired from his job with the Israeli Airports Authority just before 11 September 2001, and started his new career as a freelance consultant just a few weeks later in Boston. Ron has been the leading advocate in the USA of collecting additional data on airline passengers as a tool to assist human, rather than robotic profiling and has based his consulting career on his claimed skill at uncovering would-be terrorists through review of data collected about them in advance, combined with personal “interviews” (interrogations). The one time I met Ron at an airline industry conference, he sneered — quite literally — at my question of whether concerns for civil liberties would justify any limitations on measures which might otherwise, to any degree, reduce the risk of terrorism. Anyone who would even ask such a question, he said dismissively, clearly doesn’t understand the situation we are in.)

Although the motion for preliminary injunction was denied, the case — and in particular the third category of searches in the list above — can proceed on the merits, although no further hearing, much less ruling, is likely for months.

[Addendum, 28 July 2004: Reinvented.net has a copy of the decision on the motion for a preliminary injunction.]