The U.S. Court of Appeals for the Second Circuit has upheld the dismissal of an ACLU-Vermont lawsuit challenging security searches on Lake Champlain ferries.
“We’re disappointed with the decision,” said ACLU-Vermont Executive Director Allen Gilbert. “We knew that this case would be an uphill battle. But we felt we couldn’t let the government’s over-reaching of power go unchallenged. We were hopeful the court would be brave and say, ‘These searches go too far.’ It didn’t.”
The “screenings” require random searches of car trunks or, in the case of walk-ons, bags and backpacks. The screenings are part of the federal government’s anti-terrorist activities. William Nelson, a Middlebury lawyer acting as an ACLU cooperating attorney, filed the action with and on behalf of Michael Cassidy, also an attorney who uses the ferries daily to commute from his home in Colchester to a job in Plattsburgh, N.Y. Cassidy has been stopped numerous times to have the trunk of his car inspected. Joining as a second plaintiff was Robert Cabin, also a commuter.
When the suit was originally filed with the U.S. District Court in Vermont, Nelson noted: “We don’t disagree with the possible need for screenings on some ferries in some parts of the country. But the government must show a need to infringe on the privacy protections of the Fourth Amendment. The government has shown no such need for the Lake Champlain ferries. These are suspicionless searches, and courts have ruled such searches illegal.”
U.S. District Judge Garvan Murtha dismissed the suit, essentially stating that if the government says the searches are necessary, then they’re constitutional. The Second Circuit agreed with that view.
“We still think that’s not right,” Gilbert said. “Courts can’t simply step aside and let the government decide what’s constitutional. Courts need to review the specifics of warrantless, suspicionless searches such as these and explain how they fit within the protections of the Fourth Amendment.”
“In some ways, what’s worse than the intrusion is the fact that the searches are ineffective,” said Gilbert. “Ask a security expert, as we did in preparing our case. These searches do nothing to catch terrorists. These searches are what security experts call ‘security theater.’ They may make some people feel better, but that’s not protection. Yet the court said it wasn’t its job to determine effectiveness of the searches. The government’s assertion that the searches are necessary is good enough.”
Read the decision by the Second Circuit.
Statement by ACLU-Vermont Executive Director Allen Gilbert Nov. 30 on Second Circuit decision:
The ACLU of Vermont is disappointed with the decision by the U.S. Court of Appeals for the Second Circuit in our challenge to warrantless, suspicionless searches on Lake Champlain ferries.
We knew that this case would be an uphill battle. But we felt we couldn’t let the government’s over-reaching of power go unchallenged. We were hopeful the court would be brave and say, These searches go too far. It didn’t.
The central fact remains that these searches are ineffective. Trunks of cars are opened, but bags inside aren’t screened or searched. Carry-ons of foot and bike passengers can be searched for no reason. This is what experts call “security theater,” an ineffective and unwarranted intrusion into people’s lives.
If you refuse a search, you are barred from driving your car on any of the LCT ferries. A report is filed, and you may be investigated by government agents. So we have searches that are ineffective and inconvenient, and if you refuse them not only must you drive many extra miles to get to your destination, but you may be the subject of an official investigation.
The Constitution prohibits unreasonable searches. Courts have said that some searches for which there are no warrants are “reasonable” even if there’s no reason to suspect the person who’s being searched of any crime – but we don’t think that the ferry searches measure up.
The court said it didn’t have to consider the effectiveness of the searches – just whether they were a “reasonable means of fulfilling the requirements of the Maritime Transportation Security Act.” The court said that if the Coast Guard determines the searches fulfill the requirements (which it did), then the court is satisfied.
How can we as the public ensure that our scarce security resources are being used wisely to protect us? It’s up to the Congress, clearly. It’s got a big job to do. We need someone to be asking tough questions, and getting good information, that leads to better security.
We think it’s implausible that – as the government asserted – Lake Champlain ferries are at “high risk of a transportation security incident.” Government would serve us better by focusing security resources on ensuring, for example, the safety of containerized shipping and air cargo.
Fear leads to poor security decisions. And fear runs throughout the decision as a justification for the government’s actions.
Next steps for us in this case include requesting that the full Second Circuit Court hear the case (reargument “en banc”), and requesting that the U.S. Supreme Court take the case on appeal. We’ll consider these options.
Our thanks go to ACLU cooperating attorney William Nelson, and plaintiffs Michael Cassidy and Robert Cabin.
|
