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Tuesday, November 01, 2005
NY Subway Bag Searches: On Trial
Some time ago, when I was guest blogging at the Conglomerate, and Dan Solove was blogging here and at Balkinization, he and I had an exchange of posts about the value of the NY Police department's then-new policy to search the bags of passengers on the subway. I argued the searches might be effective despite their rarity, as the police attempted to take advantage of terrorists' behavioral biases. Solove argued here and here that searches were likely to be ineffective and intruded too far into personal freedoms.
It will shock no one that the issues are now being litigated:
The tension between public safety and personal privacy was the subject of vigorous debate yesterday, at the start of the trial of the New York Civil Liberties Union's lawsuit challenging police inspections of bags and packages at subway entrances.
The civil liberties group argues that the searches violate the Fourth Amendment's guarantee against illegal searches and seizures, while the city asserts that they are an effective deterrent to a terrorist attack. The Police Department began the searches on July 21, after the London subway and bus system was attacked for the second time that month, and has vowed to continue the policy.
. . .
Judge Richard M. Berman, who will decide the case after closing arguments on Dec. 2, heard starkly divergent interpretations of the policy. Christopher Dunn, the civil liberties union's top lawyer in the case, said, "The only people being searched under this program are innocent New Yorkers." The searches have not uncovered any terrorist plot, or even contraband, he said.
Gail Donoghue, the city's lead lawyer in the case, said the searches were part of a rational strategy calculated to "keep terrorist planning and operations off balance." By adding an element of unpredictability, she said, the policy "effectively hardens New York City targets and drives terrorist planning elsewhere."
I wonder if the city plans to support these arguments with studies about risk aversion? Incidentally, I'm not sure that it helps the ACLU's case that no contraband has been found -- doesn't that cut into the claim that the police will use putatively anti-terror measures as a way to crack down harder on ordinary crime?
Posted by Dave Hoffman on November 1, 2005 at 11:16 PM in Current Affairs | Permalink
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Comments
Dave -- As a pure question of constitutional doctrine, isn't there a bit of a double-edged sword here? On the one hand, the more targeted the searches are, the more likely the "targeting" results from some kind of (dubiously constitutional, if constitutional at all) profiling. On the other hand, City Indianapolis v. Edmond struck down random drug-interdiction checkpoints entirely because they _were_ random. (And the post-Edmond cases carve out exceptions based on non-randomness.) Your cogent posts on the subject (and Solove's, for that matter) emphasize the practical and policy concerns, of which there clearly are many in both directions. But isn't there also a glaring constitutional law problem with any truly "random" checkpoint search in a public place?
Posted by: Steve Vladeck | Nov 2, 2005 12:18:53 AM
According to a 12/02/05 NYT article
http://www.nytimes.com/2005/12/02/nyregion/02cnd-search.html
Police Commissioner Raymond W. Kelly said through a spokesman, "Common sense prevailed." in response to a ruling by Judge Berman approving the random bag searches by the NYPD. Mayor Bloomberg also supported the ruling.
Kelly, Bloomberg, and Berman all need a lesson in common sense. If a person with a bomb is stupid enough to continue walking past the police checkpoint *and* unlucky enough to be searched, he will simply refuse, exit the station, walk 6 blocks and enter the next station, where there is no police checkpoint.
This policy does nothing to increase security and at the same time cuts deeply into the skin of the New Yorker's privacy, not to mention our rights under the fourth amendment.
Posted by: Eric Botticelli | Dec 3, 2005 10:24:25 PM
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