Subway Searches: A View from New York

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8 Responses

  1. Mike says:

    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.

  2. Jason Mazzone says:

    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.

  3. Illusion of Security

    When the inevitable happens and the US is the victim of yet another terrorist attack, how many more civil liberties is Mr. Mazzone willing to give up in the name of perceived security?

  4. KipEsquire says:

    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.

  5. Mike says:

    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.

  6. Rational Security vs. Symbolic Security

    So much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge. Jason…

  7. Secondary Screenings on the Subways

    There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

  8. Secondary Screenings on the Subways

    There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…