NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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What Does It Take to Establish Probable Cause?

search2a.jpgIn a concurring opinion in United States v. McClain, No. 04-5887 (6th Cir., Dec. 2, 2005), Chief Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit seeks to explain what “probable cause” entails. Under the Fourth Amendment, law enforcement officials often must have probable cause to believe that the place to be searched contains evidence of a crime in order to conduct a search. In describing the standard, however, Judge Boggs defines it as a ridiculously low threshold:

Finally, a word on “probable cause.” While courts have resisted mightily putting a number on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes probable cause. My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location. Using this standard, my judgment would be that there was probable cause to believe that criminal activity was afoot in the house, based on the information on which the officers could reasonably rely that there was not a legitimate reason for activity in the house.

This strikes me as far too low a precentage. Just five to ten percent? It would be nearly impossible for law enforcement officials to fail to establish probable cause, unless they were just conducting a random search. If probable cause is just slightly more than five to ten percent, then what number would Judge Boggs give for “reasonable suspicion,” the lower standard for the police to engage in a stop? One percent?

Hat Tip: How Appealing


The return of the BAR/BRI pirates

Is it the end of the line for the great bar-prep near-monopoly?

A new New York Times story discusses the issue:

In complaints filed in the spring and summer, different groups of students charged that BAR/BRI has paid competitors to shut down and negotiated illegal agreements with potential competitors to divide the market. In particular, they cite a 2003 agreement with Louisiana State University, which until 2004 operated its own bar review course; under the deal, BAR/BRI promised to pay tens of thousands of dollars each year to the school, and the school promised not to run a competing bar review course.

It will be interesting to see how the allegations play out. I don’t know enough about the case to have any opinion on the merits, but I will be keeping an eye on it. Also, I’ll be wondering how it affects my own school, which is in the process of implementing a new bar prep course. (Advance word about the course is good, and I hope it works well). In any case, the story notes some of the reasons bar prep courses are so attractive:

Each state’s exam, typically the second day, usually consists of essays and multiple-choice questions that focus on the law in that particular state. The kinds of questions often require knowledge of topics that some students might not have learned about in school, adding to the allure of a review course aimed precisely at the topics on the exam.

Which raises its own questions. If BAR/BRI is doing an effective job of getting law graduates past the bar, are they really helped if it is shut down? The suit alleges that BAR/BRI overcharges its customers. But I’m willing to be overcharged a little for a system that works.


I can’t drive (over) 55.

Canada is testing technlogy that will make it difficult or impossible to speed:

The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s Website.

This seems wrong on so many levels it’s hard to list them all. It is very much within a nebulous zone as far as privacy. It is a very troubling kind of search-and-seizure (with immediate sanctions). It vastly increases the power of the nanny state, all to add a negligible benefit. (Oooh! People will be driving no more than 25 in a 25 zone! That’s high on my priority list! We can catch terrorists later.)

Worse, I have to wonder about the inevitable mistakes that will creep in. What happens when a software bug turns the freeway into a 35 zone? And how will a population of hanicapped cars mesh with the population of unhanicapped cars?

Finally, this one-size-fits-all solution ignores the very real instances in which speeding is acceptable. The system leaves no room for the proverbial rush-to-the-hospital-she’s-having-a-baby. Other medical emergencies are likewise ignored. If my wife or child is bleeding in the back seat with a severe wound, or suffering a seizure, or burning with a 106 degree fever, you had better believe I’ll be speeding.

Maybe even worse, this opens some drivers up to be easier targets for criminal activity. If I’m driving a handicapped car in a rough part of town or a sparsely-used section of highway, I may be targeted by carjackers or worse, who will know that I can’t simply put pedal to the metal to escape them. If they drive old-fashioned un-handicapped cars (which can exceed the speed limit, while I can’t), then I’ll be easy prey. (Would I have a claim against the government?)

All in all, it seems like a change that introduces an awful lot of negatives, just to cut down on speeding.


Property for sale: Great views, large lots, no Blacks.

Sound like a real estate ad from 1955? Try 2005. As reported in the Salt Lake Tribune:

Eagle Mountain is a burgeoning Utah County community, full of young families, new homeowners and white people. Lots and lots of white people.

The racial breakdown of Eagle Mountain was listed as a selling point on the Web site of home builder Bigg Homes. The site also included this comparison among others: “Black race population percentage significantly below state average.” “Significantly below” was in bold.


The ad — which seems to be a likely violation of the Fair Housing Act — has been pulled. The developer is apparently “considering” firing its web designer, who put the information on the site.

The information is apparently accurate and drawn from state demographic data — Eagle Mountain has a black populace of 0.6 percent, significantly lower than the state average.

Economists have argued — Gary Becker, for example — that workplace discrimination is inherently inefficient and will eventually be driven out of the market. (There is a great back-and-forth between Posner and Donohue on the topic, from several years back). However, the Eagle Mountain case highlights a fact that no one seems to talk about much (except for Richard Epstein) — that there is in fact a market for discrimination. That’s one of the descriptive ideas in Epstein’s book Forbidden Grounds, and it’s absolutely right.

I disagree with Epstein’s subsequent normative argument — that since there is a market for discrimination, it should be allowed to exist — but he’s absolutely right to note that there is indeed a market for discrimination. People will sometimes pay for discrimination. They’ll do it in their housing — see Eagle Mountain — and they’ll do it in their employ. This is one reason why the optimistic Becker model — market forces will end discrimination — is incomplete.

As for the Eagle Mountain example, I’m curious as to how much this particular developer’s site reflects community norms in Eagle Mountain. I know one person from Eagle Mountain, and I’m going to drop him a line and see what he thinks of this. (I should note that he’s a very nice person, and is not, that I can tell, at all racist.)


The South Africa Marriage Case

simpsons_wedding.jpgOn December 1, 2005, the Constitutional Court of South Africa, in Minister of Home Affairs v. Marié Adrianna Fourie, ruled that laws denying same-sex couples the ability to marry violate the equal protection provision of the South Africa Constitution and the provision prohibiting unfair discrimination on the basis of (among other things) sexual orientation. The Court gave Parliament one year to fix the laws to extend equal marital rights to same-sex couples.

Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia’s ban on interracial marriage, is the most aptly named case in all of American jurisprudence. It’s equally appropriate that the lead plaintiff in the South Africa case extending equality in marriage has the first name of Marié.

There is much to admire about the South Africa Court’s decision. It represents the triumph of equality and compassion over exclusion and small-mindedness.

Whatever one’s views about the relevance of foreign legal decisions, there is something to learn from this one. The Constitution of South Africa and the post-Reconstruction Constitution of the United States were both designed to end institutionalized inequality. When South Africa tells us that full equality includes equal access to marriage, we should listen.

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Telling Tales Out of School: When Principals Out Their Students


From the New York Times:

In a case involving a California high school girl who was openly gay at school, a federal judge has ruled that the girl, Charlene Nguon, may proceed with a lawsuit charging that her privacy rights were violated when the principal called her mother and disclosed that she is gay.

Ms. Nguon filed suit in September after a year of run-ins with Ben Wolf, the principal of Santiago High School in Garden Grove, Calif., over her hugging, kissing and holding hands with her girlfriend. Ms. Nguon was an all-A student ranked in the top 5 percent of her class, with no prior record of discipline. But last year, after Mr. Wolf said he wanted to separate her from her girlfriend, she transferred to another school. Her grades slipped, and her commute grew from a four-block walk to a four-and-a-half mile bike ride.

Judge James V. Selna of the Central District Court of California ruled Monday that Ms. Nguon had “sufficiently alleged a legally protected privacy interest in information about her sexual orientation.”

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Group Polarization and Internet Shaming


I’ve discussed Internet shaming in a series of posts, most recently in a post about a shaming incident carried out against a business. The post sparked a thought-provoking discussion in the comments. Adam wrote: “What exactly is ‘mob justice’ on the internet? A crowd of people waving web browsers? Angry bloggers complaining about poor service?”

My concern with Internet shaming is that it often spirals out of control. It goes too far. Consider the case of the “dog poop girl” from Korea, who was shamed extensively over the Internet for not cleaning up her dog’s poop on a subway train. I argued that the blogosphere can turn into “a cyber-posse, tracking down norm violators and branding them with digital scarlet letters.”

Internet shaming is problematic for its permanence, but it is also problematic for its viciousness and extremism. One explanation for why Internet shaming can turn into a form of mob justice is a phenomenon known as group polarization. In a recent post at the Chicago Law Faculty Blog, Cass Sunstein writes:

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Mexico To US: We’re Sorry About Calling You Barbaric

That seems to be the message of the Mexican Supreme Court’s recent decision to allow extradition to the U.S. of life-imprisonment eligible accused criminals. Duncan Hollis, my colleague and friend who is guest blogging at Opinio Juris, has the whole story. He suggests that Mexico is being compelled to forgive us by recent Congressional conditional appropriation legislation.