Gotham Gazette

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Public Safety

Subway Searches

As a deterrent to terrorist attacks on a "prime target," subway searches of passengers' bags are constitutional, according to a decision by a federal appeals court, and the searches will be allowed to continue.

The court rejected a lawsuit known as Brendan MacWade against New York City/NYPD, in which the New York Civil Liberties Union argued on behalf of five individuals include MacWade that the searches violated the 4th Amendment to the Constitution which prohibits unreasonable searches. The lawsuit also claimed that the searches have not been shown to be effective, and that there is no imminent threat of attack. The appeals court, however, agreed with the defendants and the trial judge, that this is a "special needs" case -- "protecting mass transportation facilities from terrorist attack" -- and therefore reasonable and lawful.

It is the city's position that the searches are voluntary because anyone who does not wish to have a bag search is not searched. But that person cannot enter the subway. The five plaintiffs (MacWade, Andrew Schonebaum, Joseph E. Gehring, Jr., Partha Banerjee and Norman Murphy) either consented to a bag search or refused consent and were therefore not allowed to enter the subway.

In addition to the argument that the search is voluntary, the court found that there are sufficient built-in safeguards against unreasonable searches to protect the privacy of riders. The searches are conducted at various checkpoints which are not disclosed in advance. They are random, meaning every fourth or eighth person (or whatever the number is that day) is stopped. The searches were considered non intrusive because they are of bags and parcels, not people, and do not involve looking into small objects that do not appear to be dangerous.

But danger was the theme of the two-day non-jury trial that lead to this appeal. The city called three experts on terrorism and on the subway system. Based on their testimony, a history of the system and of terrorism, the Circuit Court concluded that the search program "serves a paramount government interest."

The court found that the expert testimony established that the searches "have created an environment in New York City that has made it more difficult for terrorists to operate." At the same time, the decision points to previous plots to bomb the subway that defendants say they thwarted. Similarly the judges held that the New York Police Department "designed the program chiefly to deter terrorists from carrying concealed explosives onto the subway system and compared it with searches at airports and public buildings.”

Based, then, on the government interest in deterrence, the minimal intrusion into privacy and the safeguards that are in place, "preventing a terrorist from bombing the subways is paramount" and outweighs the New York Civil Liberties arguments. The action was dismissed.

According to Donna Lieberman, executive director of the NYCLU, no decision has been made about an appeal. But lawyers and law professors interviewed all agreed that an appeal, if heard by the Washington court, would be unsuccessful.

The city was represented by the Corporation Counsel and the law firm of Simpson, Thacher and Bartlett LLP. Emily Jane Goodman is a New York State Supreme Court Justice 

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