Comments Elsewhere

I agree that were the MTA private there wouldn’t be any issue at all, and that (like many other institutions that are currently controlled by the government) the public funding but quasi-private function puts these kind of claims into a gray area. But there seem to me to be at least three questions here that haven’t decisively been answered in favor of unwarranted searches:

1. Do presumptions of liberty counsel against (ex ante) invasive searches if there’s no evidence for or against them preventing crime?

2a. Is the counsel rendered by presumptions of liberty decisive on the question of what MTA officials have the right to do?

2b. Is the counsel rendered by presumptions of liberty decisive on the question of what it’s prudent to have MTA officials doing?

I take the answer to (1) to be clearly “Yes” and the answers to (2a) and (2b) to be probably “Yes,” as long as the MTA is controlled by the Port Authority. You may of course have good reasons for seeing it differently on these points; but what I’m worried about here specifically is the grounds for straightforwardly connecting “prudence” with a tighter regime of security restrictions. Setting aside the legal and moral questions involved in questions like (2a), aren’t there good reasons to think that prudence very often suggests higher rather than lower standards for government-mandated interference in our daily lives? Surely the merely possible benefits of the policy (if we don’t have any persuasive evidence for or against thinking that they’ll be realized) have to be weighed against the known costs when you’re doing prudential calculations, don’t they? Hence the question of where the burden of proof lies, at least as far as prudence is concerned.

Oscar: “I am not sure on what basis courts would rule, but to me the public/private division is not a particularly valid approach. As you note, the subway is fulfilling a public purpose. Part of that public function is as a public place (the cars themselves, the stations, any food joints on station premises, etc.) as well as a public means of transportation.”

Well, the issue is not (or at least should not be) a “public function,” but rather government funding and government control. I agree with Irfan that if the MTA were private then the issue would be unambiguously settled by whatever terms of business the owners wanted to set — just as privately owned department stores (which arguably serve an important “public function” of distributing needed goods) can demand that patrons submit to searches of their bags and remove those who refuse from the premises. Those kind of decisions might be wise or foolish, depending on the details of the situation, the search procedures, some facts about deterrance which we’ve stipulated we just don’t know yet, etc. But the wisdom or foolishness of a strictly private institution’s policy certainly wouldn’t (oughtn’t, at least) be a proper topic for courts to consider.