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.

I have attacked at length judicial deference to decisionmakers under review in cases involving constitutional rights in my article, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999):

When courts recite the rhetoric of the deference principle that they will not “second guess” the judgment of a decisionmaker or will not pass on the “wisdom” of certain policies they employ a specific practice of judicial review. . . . Courts accept uncritically the factual and empirical evidence of the government supporting its laws and policies in a profound number of cases where the deference principle is invoked.

The practice of deference has drastic effects on the outcomes of cases because factual and empirical evidence plays an enormously influential role in the interpretation of the Constitution. . . .

Determining how closely the means of the law are tailored to its end involves factual and empirical judgments, including determinations about the viability of the means, the effectiveness of the means, and the existence and effectiveness of alternative means.

In deference cases, the very minimal examination of factual and empirical evidence tends to override whatever level of scrutiny is applied, and is often dispositive.

I apologize for quoting so extensively from my article, but this court’s decision really has me worked up. Toward the conclusion of my article, I write:

Courts can be sensitive to the needs of officials and institutions while simultaneously engaging in a vigorous critical inquiry into their judgments. . . . . Judges must remain wary of blind acceptance of authority and subject everything to constant critical inquiry.

Deference is the negation of critical inquiry. Deference assumes that judicial review via critical inquiry into empirical evidence is equivalent to judicial legislation and the imposition of judicial ideology. By making this equivalency, critical inquiry of facts is banished from judicial review. Deferential review merely becomes a form of additional legitimacy, a judicial stamp of approval for the decisions made by government officials. . . .

After making its general incantation of deference (which means that the government will automatically win), Judge Berman goes on to articulate the “persuasive” arguments of the government:

The Court is also persuaded by Commissioner Sheehan’s opinion that the Program “reinforces the awareness of police officers, transit workers and the public of the need to be alert.”

This is a silly argument. Essentially, the court says that providing the police with greater abilities to engage in searches without constitutional protections will make the police more “alert.” Well, that’s nice — we should all be happy to sacrifice liberties so that the police become more alert. And the court notes that it will teach the public to be more alert too. So the argument is that we can make the people more alert by intruding upon their privacy. Let’s try strip searches — these will certainly make the cops more alert, and it will have great effects on public alertness too, and the cops can have a lot of fun at the same time.

The court also reasons:

[T]he Court is persuaded that the randomness of the searches rather than the actual number of searches conducted is (primarily) what makes the Container Inspection Proogram effective.

In other words, the court is saying that any small increase in terrorists believing they might get caught makes such a policy an effective. But if “effectiveness” is to have any meaning, the benefits of a policy that requires a sacrifice in liberty should be more than just trivial or speculative. There is no evidence that this policy will have any deterrent effect. In response to arguments by Dave Hoffman on this point, I wrote:

Dave argues that “there is a good argument that terrorists, subject to human behavioral tics, are likely to vastly overestimate the likelihood of being caught and therefore be more deterred than rational terrorists (what a contradiction in terms that is!) would be.” But Dave forgets that many terrorists are different from ordinary criminals in that terrorists are often on a suicide mission. They care about getting caught only because their mission might fail, not because of any potential legal sanction that might be imposed. If Dave is right, why on 9-11 did the terrorists try to use planes? Why not try some other means of terrorism? After all, planes involve a lot of security whereas other targets don’t. Wouldn’t the “risk-adverse” terrorist who might overestimate being caught attempt something else? Why did they go to flight school and expose themselves at many points to being detected when they could have tried something different? I’m certainly no expert on terrorist behavior, but I’m not very convinced by Dave’s theory.

Dave says: “Will terrorists then move on to other targets of opportunity? Probably. But forcing them to do so would be a victory.” I’m not so sure. This depends upon what the other targets are. Is it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?

If this is a “reasonable method of deterring (and detecting) a terrorist bombing of the New York City subway system” (opinion, p. 36), then I can’t think of much that wouldn’t be reasonable. Fourth Amendment reasonableness must have some teeth — it should distinguish rational responses from merely symbolic ones.

Turning to the privacy side of the balance, the court concludes that the policy “only minimally intrudes upon privacy interests.” (p. 38). I don’t believe that “minimal” can describe a massive program of random searching of people’s baggage.

It is bad enough that so much money and resources must be wasted on a largely symbolic exercise to make public officials look like they’re doing something to protect us when they’re not. This cosmetic program for public officials which drains money from other more serious threats. It is even worse that people must sacrifice liberty and convenience too. These are the type of search programs that the Fourth Amendment should weed out.

Related Posts:

1. Solove, Baggage Checks on NYC Subways – Another Cosmetic Security Measure (Balkinization)

2. Solove, Terrorism, Deterrence, and Searching on the Subway (Balkinization)

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15 Responses

  1. Mike says:

    Dan, I’m curious: Do you also oppose judicial deference to Congressional decisions relating to its ability to regulate interstate commerce? Seems like the same (very persuasive) reasons you offer for courts to not defer to bureacrats would apply in the Commerce Clause context as well.

  2. Mike — I didn’t really analyze Commerce Clause deference in my article — just deference when the Bill of Rights was involved. There’s a fairly nuanced historical argument for why I believe Bill of Rights deference is more problematic than Commerce Clause deference — namely, because the Court in Carolene Products sketched an approach that involved Commerce Clause deference but not Bill of Rights deference.

    That said, however, I’m not a big fan of deference — even Commerce Clause deference. I believe deference often turns into an abdication of the judicial responsibility to judge a case.

    Of course, there’s a lot of nuance about what precisely “deference” means, and I discuss that in the paper.

  3. NYC Subway Searches Ruled Constitutional (For Now)

    I am of course very disappointed in the federal district court ruling that New York City’s ludicrous and totally ineffective policy of randomly searching…

  4. AnotherMike says:

    Daniel, if you aren’t familiar with Bruce Schneier’s works, I strongly suggest you should read “Beyond Fear”. He’s one of the top security experts, and one of his positions is similar to yours: even if some measure shifts terrorists’ targets (not to say that this one does or that the NYC subway even is a target), away from subways to shopping malls, it’s a waste of time and money for the nation as a whole.

    It does make sense in the eyes of the local subway authorities, however. Classic security theater instead of actual security. Here’s his blog entry on this topic:

  5. Another Mike,

    Yes, I’m quite familiar with Bruce Schneier’s excellent work. Both Beyond Fear and Secrets & Lies are indeed definitely worth reading.

  6. Brian says:

    Oh well. At least the ACLU won’t have to remove their “all bags are subject to search” sign from their New York City offices.

  7. Adam says:


    When I visted the ACLU in New York, my host made a point of apologizing. Those signs, and the searches, are done by building management, and short of moving, the ACLU can’t fix it.

  8. According to a 12/02/05 NYT article

    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.

    -Eric Botticelli

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


    An excerpt:

    “Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court anal…

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


    An excerpt:

    “Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court anal…

  11. 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…

  12. Michael Mcmahon says:

    ‘Special Needs’ Doctrine Supports City’s Subway Searches

    Last summer, police began random searches of packages carried by people entering New York City subways. Generally, police may not stop or search anyone without reasonable suspicion. Do these random searches violate the Fourth Amendment?

    Up until now, U.S.-based terrorists must have slept better knowing that the Fourth Amendment usually requires individualized suspicion as a prerequisite to any search or seizure. The Fourth Amendment is enforced through the exclusionary rule, which forbids use of illegally seized evidence in criminal cases.

    The Fourth Amendment mediates the inherent conflict between the right of an individual to be free from governmental interference and the need of government to ensure the safety of its citizens. But to fight terrorism, must we now give up this freedom in order to save it?

    The quantum of individual suspicion required for most searches and seizures comes in two forms. The first is “probable cause,” which is necessary for arrests or the issuance of a search warrant. The other, less demanding standard is that of “reasonable suspicion,” which will justify a temporary detention or a pat-down frisk for weapons. Reasonable suspicion is formed by specific articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity. Officers are encouraged to draw upon their own specialized training and experience in assessing the “totality of the circumstances.” United States v. Arvizu 534 U.S. 266 (2002)

    The courts have already been confronted with a variety of circumstances in which police believed they could stop and search people on a random basis.

    In Delaware v. Prouse, 440 U.S. 648 (1979), the high court disapproved random traffic stops made by Delaware Highway Patrol officers in an effort to apprehend unlicensed drivers and unsafe vehicles. No empirical evidence was presented in the lower courts demonstrating that such stops would be an effective means of promoting roadway safety. The court concluded that the random stops involved the “kind of standardless and unconstrained discretion [which] is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.”

    A more recent example of the individual suspicion requirement is discussed in a case arising out of Indiana. In City of Indianapolis v Edmond, 531 U.S. 32 (2000), the court held that the Fourth Amendment was violated by a highway checkpoint program under which police, without individualized suspicion, stopped vehicles for the primary purpose of discovering and interdicting illegal narcotics. (Retiring Justice Sandra Day O’Connor wrote the majority opinion.) Although some would argue that our country is in a state of narcotic crisis, the court refused to allow these random searches.

    In Ferguson v. City of Charleston, 532 U.S. 67 (2001), the court held that state hospital employees violated the Fourth Amendment when they took urine tests from maternity patients for the specific purpose of incriminating those patients who tested positive for illegal drugs. Again, O’Connor agreed these tests were unreasonable searches when undertaken without the informed consent of the patients. The courts are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue general crime-control ends.

    Do these three cases spell doom for the New York subway search program? Not necessarily. The random subway searches do not appear to be a general criminal enforcement procedure. Their primary purpose is to deter terrorism. The “special needs” doctrine has been used to uphold certain suspicionless searches performed for reasons unrelated to ordinary law enforcement. It operates as an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. Searches of persons on probation or parole fall into this category.

    In such cases, the ultimate standard of the Fourth Amendment is that of reasonableness. Cady v. Dombrowski, 413 U.S. 433 (1973). The reasonableness of any particular search depends upon the facts and circumstances of that particular case. Chimel v. California, 395 U.S. 752 (1969).

    As Judge Henry J. Friendly explained in a leading case upholding such airport boarding searches:

    “When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.” United States v. Edwards, 498 F.2d 496 (2d Cir. 1974).

    Some would argue that persons boarding common carriers have no reasonable expectation of privacy that society is prepared to accept, if they know in advance that they may be searched. But this argument has been rejected in cases examining the constitutionality of airport searches. See, e.g., United States v. Place 462 U.S. 696 (1983) (“We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment.”). The government can’t eliminate Fourth Amendment rights and protections merely by announcing its intention to search beforehand. The fact passengers have been told they must subject their personal effects to reasonable security searches does not mean that passengers are also consenting to unreasonable searches. Smith v. Maryland, 442 U.S. 735 (1979); United States v. Taborda, 635 F.2d 131 (2d Cir. 1980).

    In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that a police roadblock where all drivers were stopped in order to investigate for drunk driving did not violate the Fourth Amendment. The court determined that the state’s interest in preventing drunk driving outweighed the intrusion of the stop upon individual motorists. In those circumstances, the balance of the state’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.

    Searches at our international borders are another context in which random searches have been upheld. A program to “stop and question” may be made in the absence of any individualized suspicion at reasonably located checkpoints. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The court also held that motorists could be referred for a secondary inspection “largely on the basis of apparent Mexican ancestry.” The record in that case refuted, “any suggestion that the Border Patrol relies extensively on apparent Mexican ancestry standing alone in referring motorists to the secondary area.”

    Clearly, although consideration of ethnicity may be permissible under some circumstances, the absence of ethnic profiling makes any search program less susceptible to constitutional attack.

    The American Civil Liberties Union is still challenging the constitutionality of these subway searches. In the press, the ACLU alleges the searches are not really random, describing them as “racial profiling.” In court, however, they seek to bar “random searches,” claiming they won’t work if they are truly random and easily circumvented. The police may win this litigation if they adhere to several key components of reasonableness:

    The search procedures should be set forth in writing beforehand. Officers must not be free to make up the rules as they go along. Unfettered discretion will be abused.

    The resulting inconvenience to the millions of passengers must be kept to a minimum. It is not necessary or desirable that every package be searched. If lines become too long, the rules should provide measures to speed things up.

    All consideration of ethnicity must be minimized. Terrorists can come from diverse backgrounds. All terrorists should be aware that they may be stopped, regardless of their appearance or lack of accent. When police do rely on ethnicity, it must be but one factor in a complete set of relevant circumstances establishing reasonable suspicion. Think about it. Any search based on ethnicity is never a random search.

    Empirical evidence must be collected for presentation and scrutiny in the courts.

    Contraband may be seized when it falls into “plain view.” The possessors may be prosecuted in the criminal courts. But it must be clear that the searches are to be conducted primarily for passenger safety and not for general law enforcement purposes.

    The legality of any random search program will be determined primarily by what police do in the subway, not in the courts. If police are mindful of the applicable constitutional limitations, their security measures will likely be seen as reasonable measures to combat a significant new threat to public safety. Randomly searching passengers who are not acting suspiciously means that more of us will be inconvenienced. But if that means that we all get to our destination safely, this “misery loves company” approach might be worth it.

    Michael C. McMahon is chief deputy public defender, overseeing writs, appeals and training, in Ventura, California

  13. Democratic searches and seizures?

    Over at Concurring Opinions they are discussing the recent federal court decision allowing the New York City police’s searching of subway patterns. I think this is a frightening decision, and I agree with law prof Daniel Solove’s explanations for why….

  14. batz, batz says:

    It might be credible that these searches were to make subways safe from terrorist attacks if the searches were not used to enforce prohibition laws and charge people with posession of contraband.

    Since people are not immune to prosecution from being “caught” with contraband during these searches, there is nothing “special” or exceptional about the searches at all. It is a shifting of the burden of proof of innocence to the citizen when no crime has been committed.

    When behaviour that can be interpreted by the officers conducting the search as criminal is detected, the citizen is prosecuted as if the officer had witnessed him committing a crime,

    when in fact the officer was engaged in what would be a completely illegal (jerry stop) search in any other circumstance.

  15. 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…