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December 05, 2005
Subway Searches: A View from New York
Like Dan Solove, I think that police searches of New York City subway riders are unlikely to catch terrorists attempting to carry bombs or poisons into the transit system. But to assess the effectiveness of the searches by that measure is too narrow.
I see the subway searches as a show of force—and, like many New Yorkers, I am glad we have them for that reason.
New York City is at the top of terrorist hit lists. Though the federal government should take responsibility for protecting vulnerable locales, it has proved stingy and incompetent. New York City shoulders a good part of the homeland security burden.
Given these realities, the City has had to radically change its police operations and it has taken on military functions. New York has implemented high-tech surveillance, radiation detection systems, and plans for mass quarantine. The City has officers stationed in foreign countries and has sent delegations to Israel for training. City aircraft patrol the skies and police boats monitor the harbors. Elite city commando teams—called “Hercules Teams”—stand at the ready. Agents of city government regularly investigate individuals with possible terrorist ties and infiltrate suspicious groups.
Measured by its post-9/11 budget and personnel, the NYPD outranks all but nineteen of the world’s standing armies.
The overriding goal of all of these efforts is prevention. The police are no longer charged simply with responding to crimes that have occurred. To succeed, they must stop terrorist attacks before they occur.
The City has taken the view, reasonable in my opinion, that prevention is aided by demonstrating on a regular basis the power of the City’s security forces. Such a demonstration combines awe with surprise. Hercules teams appear suddenly in Times Square. Roadblocks, with heavy weaponry, are set up at the entrance to the Brooklyn Bridge. Grand Central station is in a moment filled with officers. City blocks are cordoned off, with helicopters buzzing overhead.
The subway searches are a part of this strategy. They are one reminder among many that the City is being secured.
Sure, it’s inconvenient to stop and open a bag. But the inconvenience is minor (and less of a burden than being searched at an airport).
Reports suggest that most New Yorkers, for whom the subway is the principal mode of transportation, are willing, even happy, to comply. (After all, many of these same people experienced 9/11 up close.) That's proof enough of reasonableness--the standard the Fourth Amendment requires.
If the show of force—including the subway searches—deters somebody from planning or carrying out an act of terrorism, it’s easily worth it.
Posted by Jason Mazzone at December 5, 2005 08:23 PM
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Comments
Reports suggest that most New Yorkers ... are willing, even happy, to comply.... That's proof enough of reasonableness--the standard the Fourth Amendment requires.
But if public approval is the benchmark of "reasonableness," then why have a written Constitution? In theory, only those types of blanket searches that a majority of the public approves of would be implemented; and thus, there would be no need for a Fourth Amendment at all.
Posted by: Mike at December 5, 2005 08:35 PM
The Fourth Amendment still protects individuals when government conducts searches that are not implemented following public pre-approval. It protects individuals when the government, in its particular execution of a search, goes too far--e.g. slams my head up against the wall when carrying out the search of my bags in the subway. It also provides for an after-the-search reassessment (e.g. by a jury) of whether the policy was in fact reasonable, given the additional information implementation has produced.
Posted by: Jason Mazzone at December 5, 2005 08:46 PM
You're still tiptoeing around the fact that this is a random, suspicionless search with total discretion by rank-and-file police. That is totally unheard of in America and every Fourth Amendment precedent, every single one, argues against it.
The fact that these searches are, contrary to your assertion, totally ineffective doesn't help matters.
And the fact that you, or however many people, think that these searches are "no big deal" does not relieve you of the burden of reconciling them with precedents that unanimously suggest otherwise.
Posted by: KipEsquire at December 5, 2005 09:28 PM
The Fourth Amendment still protects individuals when government conducts searches that are not implemented following public pre-approval.
So is it fair for me to state your view thusly: Public pre-approval of a method of searching or seizing persons, absent equal protection or other related issues, renders the search per se reasonable? That seems to be what you're suggesting, but I don't want to unfair characterize your argument.
Indeed, there seems to be some tension, because in the above comment you note: "[The Fourth Amendment] protects individuals when the government, in its particular execution of a search, goes too far--e.g. slams my head up against the wall when carrying out the search of my bags in the subway." What if the public pre-approves of such searches and seizures? Does that make them per se reasonable? Or are there other factors that need be weighed.
Posted by: Mike at December 5, 2005 10:52 PM
