Random Bag Searches in Subways

Last year, New York City implemented a program of random bag searches in the subways. It was a silly idea, and I wrote about it then. Recently the U.S. Court of Appeals for the 2nd Circuit upheld the program. Daniel Solove wrote about the ruling:

The 2nd Circuit panel concluded that the program was "reasonable" under the 4th Amendment's special needs doctrine. Under the special needs doctrine, if there are exceptional circumstances that make the warrant and probable cause requirements unnecessary, then the search should be analyzed in terms of whether it is "reasonable." Reasonableness is determined by balancing privacy against the government 's need. The problem with the 2nd Circuit decision is that under its reasoning, nearly any search, no matter how intrusive into privacy, would be justified. This is because of the way it assesses the government's side of the balance. When the government's interest is preventing the detonation of a bomb on a crowded subway, with the potential of mass casualties, it is hard for anything to survive when balanced against it.

The key to the analysis should be the extent to which the search program will effectively improve subway safety. In other words, the goals of the program may be quite laudable, but nobody questions the importance of subway safety. Its weight is so hefty that little can outweigh it. The important issue is whether the search program is a sufficiently effective way of achieving those goals that it is worth the trade-off in civil liberties. On this question, unfortunately, the 2nd Circuit punts. It defers to the law enforcement officials:

That decision is best left to those with "a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers." Accordingly, we ought not conduct a "searching examination of effectiveness." Instead, we need only determine whether the Program is "a reasonably effective means of addressing" the government interest in deterring and detecting a terrorist attack on the subway system...

Instead, plaintiffs claim that the Program can have no meaningful deterrent effect because the NYPD employs too few checkpoints. In support of that claim, plaintiffs rely upon various statistical manipulations of the sealed checkpoint data.

We will not peruse, parse, or extrapolate four months' worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day to day police power. Counter terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not and may not second guess the minutiae of their considered decisions. (internal citations omitted)

Although courts should not take a "know it all" attitude, they must not defer on such a critical question. The problem with many security measures is that they are not a very wise expenditure of resources. It is costly to have a lot of police officers engage in these random searches when they could be doing other things or money could be spent on other measures. A very small number of random searches in a subway system of over 4 million riders a day seems more symbolic that effective. If courts don't question the efficacy of security measures in the name of terrorism, then it allows law enforcement officials to win nearly all the time. The government just needs to come into court and say "terrorism" and little else will matter.

Posted on August 16, 2006 at 3:32 PM • 36 Comments

Comments

closethe doorAugust 16, 2006 4:30 PM

In NYC, you are always only a few blocks from a subway, so it is "reasonable" to extend the random search provision to anywhere in the city. Voila!, forget that part of the constitution. How long will it take before the police are more interested in what litterature you carry than the bombs you don't?

quincunxAugust 16, 2006 4:39 PM

"If courts don't question the efficacy of security measures in the name of terrorism, then it allows law enforcement officials to win nearly all the time."

So in other words the system works as it always does, and as expected.

'The government just needs to come into court and say "terrorism" and little else will matter.'

Well yes, the government essentially decides its own case, how could it be wrong?

If I was a judge in my own case, I would also have to side with myself.

Fraud GuyAugust 16, 2006 4:40 PM

This ties back into the effectiveness of the Customs screening process.

(Quote from: Review of CBP Actions Taken to Intercept Suspected Terrorists at U.S. Ports of Entry) "As CBP has stepped up its efforts to intercept known and suspected
terrorists at ports of entry, traditional missions such as narcotics
interdiction and identification of fraudulent immigration documentation
have been adversely affected. Recent data indicates a significant decrease
over the past few years in the interception of narcotics and the
identification of fraudulent immigration documents, especially at airports."

They are wasting time with ineffective searches of dubious deterrant value, while ignoring the often more pressing police functions of investigating or preventing more likely crimes. (I can still remember when the Customs service was fighting for funding by promoting its anti-narcotics efforts--I guess terrorists are sexier than illegal drugs, now.) I am sure that police performing their regular functions would be much more likely to protect me from harm than by them spending their time picking semi-random transit users for searches.

Also, if I correctly recall previous legal decisions refining search and seizure rules, if police found evidence of another crime during a warrantless search, a decent attorney could have such evidence thrown out as there may have been no suspicion of such crime prior to the search. Now this sounds like a Law and Order episode.

Rob MayfieldAugust 16, 2006 4:43 PM

How random are the searches ? how often is a nicely dressed grandmother or suited businessman of apparent anglo saxon origin searched compared to other groups of people ? does the size or type of the bag influence the search statistics ? does the time of day have an effect ?

I seriously doubt these searches are 'random' in any way that is meaningful in the context of the message law enforcement officials are trying to portray.

Fraud GuyAugust 16, 2006 5:00 PM

One more comment:

This has been repeated countless times. If a terrorist is about to be stopped in a random search, what is to prevent them from detonating the explosive, or (if remotely controlled) from their "handler" setting it off.

Since the potential terrorist will likely be in a long line/crowd of individuals waiting to be checked at the subway station at the time of detonation, the likely aftermath would be enormous whenever it occurred (i.e., as planned or early). Many would be killed, many more injured, and damage to the structure would hinder relief efforts, especially since many potential aid workers (the police officers) would be caught in the devastation.

I am not saying that targeted deterrence cannot be effective; random deterrence rarely is.

AnonymousAugust 16, 2006 5:01 PM

I am not and have never been a US citizen so I may need correcting on the details of this but -
The courts are supposed to determine legality, the people are supposed to determine policy (through their selection of the executive and the legislature). If you don't like the way that the police spend your money, aren't you supposed to sort that through the ballot box?
Much as I dislike the position, I find myself agreeing with the court, provided that it isn't actually illegal, the police are allowed to waste money.

LibertyNewsAugust 16, 2006 5:38 PM

My first question would be this:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Where in that does it say 'special needs'? Did the judges read the wrong Constitution? There is NOTHING in the 4th amendment that would imply that the government has the authority to search without a warrent.

.ed

MurgatroydAugust 16, 2006 5:46 PM

@ Rob Mayfield:

A datapoint: My daughter (who is obviously of Anglo-Saxon descent) teaches 9th-grade English in the NYC school system. She has reported on numerous occasions that she has never had her bags searched when riding the subway (she typically carries at least two), but that she has seen others' bags come under scrutiny.

DMAugust 16, 2006 6:32 PM

Whats needed here is to ensure that if the pretext for searching a bag is terrorism, then anything else that might be found in the bag is ignored.

MordAugust 16, 2006 6:39 PM

Are the subways private property? Did I sign a waver when I entered them? No? Then the constitution is in full effect. You can search my bag over my dead body.
Its time for civil disobediance.

MordAugust 16, 2006 6:49 PM

We should all start carrying extra bags, just to make sure the government has plenty to search.

lurkerAugust 16, 2006 7:03 PM

I looked over the original decision and the 2nd Circuit appellate decision, and buried (hidden) amongst its text, logic, and cites is the justification of the searches because of their random basis. However, I believe this is in part wrongly decided because the randomness involved here is of a different character than the USSC holdings.

According to the Supremes, random stops of persons in public are OK if there is no element of selection (possible personal prejudice) involved. So, stopping every 6th car to check for drivers' licenses or alcohol use is OK. The idea is that there is no "discretion" of who is stopped is key; stopping everyone under this regime is OK too.

From what I read in the original Berman decision (I don't live in NY), there are 2 types of searches involved in this case: (1) those at the entrance to the subway system that are easily avoidable and easily shown to be random or not, and (2) those that may occur while beyond the entrance point, e.g. while riding the train.

Now, the "special needs" doctrine is law in the 2nd Circuit only, and is derived in part from prior USSC decisions where the randomness precluded discretion.

In this case, there is a subtle shifting of the ground such that the "randomness" is only a veneer, so that randomness is what appears random to the public. In the 1st type of search I mentioned above, adherence to the USSC standard of randomness is easy to prove by observation. The 2nd type is approved by the 2nd circuit basically "sliding by" in the way in which the original decision and the appellate decision are written. The appellate decision does not mention this 2nd type of search at all. Yet, this is part of the "program" that is approved by the 2nd circuit.

In other words, once beyond the subway entrances, police can select you for search to bootstrap other investigations where they haven't got reasonable cause, or just for simple harassment (as if racism has never reared its ugly head within the law enforcement community).

What to do? Leave NY. Or, if riding the subway, don't carry any containers large enough that an officer, in his or her discretion, can believe can hold an explosive. Wallets are OK :-)

Vik OlliverAugust 16, 2006 7:30 PM

It seems to be that we're not allowed to say "terrorism isn't really a big problem in the grand scheme of things."

Vik :v)

JilaraAugust 16, 2006 7:34 PM

I'd like to know what "objects of terrorism" they're supposedly looking for on the subway, anyway. Blasting caps? Sports drinks? Cell phones? Letters from Osama?

David ThornleyAugust 16, 2006 8:13 PM

I was with you up to the last paragraph, Bruce.

The court was quite correct to say that it should not interfere with the executive branch on the allocation of resources. Where it fell down completely was in balancing the likelihood that these measures would actually be useful against Fourth Amendment rights. The quotation given barely acknowledges that there might be an issue of civil rights here before trailing off into irrelevancies.

If all that is necessary to abrogate Constitutional rights is a statement from an executive officer that the unlawful activity is intended to stop some terrorist activity, then the US is finished as a force for liberty and democracy.

Back when I was younger, there was a common saying: "America, love it or leave it." In the spirit of that, I would like to encourage the judges of the Second Circuit to emigrate to a country where the civil rights policies are more to their liking. We really don't need them here.

TimAugust 16, 2006 10:21 PM

Oh... I'm so happy to live in a country where unwarranted searches and seizured are illegal. During my life time I haven't had to show my ID even once to an officer, and certainly I haven't been stopped and searched. I do value my privacy and freedoms so high that I will not be visiting USA which has turned into a hostile police state. I feel sorry for the citizens of USA, there's no light ahead in the near future, no turning around this train. Your government is out of control.

solipsisticAugust 16, 2006 11:55 PM

Regarding constitutional law,

There are numerous laws which violate the various amendments, as they stand. For example, laws against libel and slander violate the first amendment. There is an excellent paper called "The embarrassing second amendment" which concludes that the second amendment's qualifying phrase is to convey a rationale, not as a limit to it. Even if you look at the case law, the supreme court has ruled that certain arms aren't protected because they are not militia weapons, implying that militia weapons should be protected. Of course, militia weapons would include assault rifles and sawed-off shotguns (trench brooms), as both are used in warfare. And so on.

The famous and misunderstood instance of "shouting fire in a crowded theater" represents a three-pronged test of constitutionality; (a) that the course of action people took would pose a clear and present danger, (b) that a reasonable person would take such an action, and (c) it is an incitement to _immediate_ action (that is, printed matter doesn't count).

I don't like terrorists, and I don't like police states, so I don't know how to feel about this one. I would feel more comfortable if the law stated that any evidence not related to terrorism was excluded from being used against you, but as the OJ case showed, evidence from a search for one thing can be accepted as evidence for a totally different crime, and I doubt any limits will really matter to cops or courtrooms if you're portrayed as bad enough. I knew some local cops who raided an ISP, which was run in my friend's living room, and they illegally searched his roommate's room, found pot, and destroyed it, illegally. What are you going to do about it?

However, with law enforcement focused on a very serious crime, it appears that prosecution of less serious, even victimless, crime is going on the back burner, which I consider a good thing. On the third hand, it appears that the annoying kind of minor crime with victims (e.g. theft of car stereos) is going to get even _less_ attention, which is bad.

Geoff LaneAugust 17, 2006 12:46 AM

Random searches on public transport are useless. Last years attacks in London involved a number of suicide bombers who were supposed to all explode their bombs at the same time in different parts of the Underground. One of the bombers was unable to get into the planned station so exploded the bomb on a bus.

Even if random searches had found one of the bombers and instantly closed down the system, alternate targets are always available in a city. The crowds around an evacuated station are ideal targets.

Directed searches may be useful if performed by trained and experienced officers, but as others have pointed out if you find a suspected suicide bomber in a crowded, enclosed space, what do you do? The only possible preventive act is to kill the suspect immediately. Then you have to deal with the inevitable mistakes.

AlanAugust 17, 2006 5:50 AM

I agree with the court that its not their job to determine if the policy is an effective use of limited resources. If we think its a waste of $$, we need to elect a new mayor.

nbk2000August 17, 2006 5:59 AM

IF

The searches were TRUELY random (Vegas Slot-style psuedo-random 'Jackpot' turnstiles)

AND

Anything found that wasn't a gun, knife, or bomb wasn't allowed to be used against you (no arrests for drugs or other things like parking tickets)

AND

You had the option to leave instead of being searched (without being arrested on the street for doing so)

AND

NO ID was required to be shown, and no names asked (does it matter? No.)

AND

It was done before boarding the train without significant delay (so you're not trapped on the train with angry cops if you refuse)

THEN

I wouldn't have a problem with it.

I can safely say this knowing that such limit searchs and constraints upon police power would never be permitted in our New World Order. :)

This would be more for dis-inhibiting armed thugs on the subways more than any terrorist bombing prevention, anyways.

As it stands now? NO WAY!

Besides, we've managed just fine all this time without giving up our freedom, so what's different now? Terrorists? HA!

http://www.forgotten-ny.com/STREET%20SCENES/...

Wall Street, September 16 - 1920, terrorists demands, bomb, explosion, death.

Nothing new.

AnonymousAugust 17, 2006 7:54 AM

If Echelon (and it's a big if) exists, how do they filter out all the chatter about terrorism to leave the chatter by terrorists?

Secondly, let's stop using the word terrorist. These people are not worthy of the
word. Let's describe them as what they are and that is "murder squads" or
better, "failed murder squads" or even it seems mostly, "pathetic wanabe
failed murder squads"

-ac-August 17, 2006 8:53 AM

@Mord:
> We should all start carrying extra bags, just to make sure the government has plenty to search.

I'm with you. When faced with a stupid system like this, DoS it.

innycAugust 17, 2006 9:44 AM

i live in nyc. These searches are totally pointless. You can always say "no" to the search and walk down 10 blocks to the next subway station where there will not be any NYPD. This isn't security

Ed T.August 17, 2006 9:50 AM

"When faced with a stupid system like this, DoS it."

Actually, get everyone you know to participate, and it turns into a DDoS - *much* more effective.

~EdT.

derfAugust 17, 2006 10:06 AM

@closethe door

"In NYC, you are always only a few blocks from a subway, so it is "reasonable" to extend the random search provision to anywhere in the city."

Even worse - since the National Guard can be used for backup, they should be stationed in your apartment near the subway...just in case. It's for the children.

Allan PoindexterAugust 17, 2006 10:09 AM

I have looked and looked for this "special needs" clause in the Fourth Amendment. Can anyone shed light on where the Founders hid it?

dhasenanAugust 17, 2006 10:27 AM

@Anonymous
If ECHELON doesn't exist, why has the ACLU established the website echelonwatch.org? Why did the European Parliament release a report about it in July 2001? (PE305.391, I believe.)

It takes more guts, though, to shrug off 'murder squads' as ineffective. If we expand to 'pathetic murder squads', we'll shorten it to PMS, which can be quite scary. 'Pathetic wannabe failed murder squads' doesn't compose into a decent acronym; we'd have to call them pwiffums in the end. And show teddy bears whenever there was a news item about them.

nilsAugust 17, 2006 11:28 AM

Anonymous: "Secondly, let's stop using the word terrorist. These people are not worthy of the word. Let's describe them as what they are and that is "murder squads" or
better, "failed murder squads" or even it seems mostly, "pathetic wanabe
failed murder squads""

No! Those names are much too scareful. Call them what they are. In reality they are criminals. Plain and simple criminals.

And they should be handled like criminals. The only reason for a war can be found in the novel 1984.

AdamAugust 17, 2006 11:36 AM

So, yeah. I had a professor who told of an NSA program to use risk-analysis to determine the ways in which resources should be expended in terms of national defense, and which vulnerabilities to close first. I don't know whether it's true or not. The program was a miserable failure as they were unable to distinguish between vulnerabilities. Why? They had one called "Loss of the Free World" to which they assigned infinite weight (ignoring the hubris in name selection). Every vulnerability led to the loss of the free world, and so they were all infinitely important.

The lesson? Nothing should have an infinite weight. "Loss of the Free World" should be heavier than everything else, perhaps, but not so heavy that it distorts your graph. I tell this story mainly to point out that risk analysis is difficult when dealing with heavily weighted items.

In this case, the court has sought a balance between subway bombings and freedom. Once again, "Destruction of the NY Subway System" is an item that has a very heavy weight assigned to it. Their issue, I believe, is that they have not put "Loss of the Free World" on the correct side of the scale.

JudicialSkepticAugust 17, 2006 12:46 PM

I would need a lot of persuasion to believe that the courts would do a good job of determining whether a police anti terrorism measure is effective.

Why would courts and judges know any more about effective security practices than say, informed citizens, their city council members and the mayor?

SelkiAugust 17, 2006 5:15 PM

@JudicialSkeptic, re "Why would courts and judges know any more about effective security practices than say, informed citizens, their city council members and the mayor?"

The point isn't that they should know more, the point is that they (should) have more experience in *adjudicating* such things as *standards*-based evidentiary hearings on the effectiveness of those practices, where if the LEOs just say "sure they're effective" and the protesting party says "That's not evidence! They haven't proven anything!", the courts/judges do not say "hey, the LEOs say they're effective, we're not going to second-guess them!"

JudicialSkepticAugust 17, 2006 8:21 PM

@Selki
First off, I admit that I don't understand your reply to my comment because you're using a term I'm not familiar with ("standards based evidentiary hearings")

I was reacting to the statement:
"If courts don't question the efficacy of security measures in the name of terrorism, then it allows law enforcement officials to win nearly all the time."

Richard BraakmanAugust 18, 2006 5:14 AM

@Alan:

"I agree with the court that its not their job to determine if the policy is an effective use of limited resources."

That's the question the court dealt with, but it's the wrong question. Sure, let the mayor worry about how much money it costs. The court's job is to determine whether the infringement on constitutionally-guaranteed rights is warranted in this case. And for that, it does need to evaluate the policy's necessity and effectiveness.

SelkiAugust 18, 2006 12:29 PM

@JudicialSkeptic,
It's my understanding that judges frequently have evidentiary hearings to determine whether to admit certain claims of evidence into court, and they use standards (based on law and precedents) to make those determinations. Think of a medical malpractice hearing. Judges are not medical experts, but they don't have to admit every wild claim / witness (proposed by defense OR prosecution) into court, or take the government's word for it if it's about a VA hospital. On the other hand, they're supposed to have substantive reasons for exclusion. Having standards helps protect the process against bias by an individual judge. Many judges have experience adjucating complicated matters.

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