Subway Searches Raise Questions Of Efficacy, Legality

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The price of increased vigilance, some say, is that New Yorkers have been told to watch one another.

Photo by: Aaron McElroy

The price of increased vigilance, some say, is that New Yorkers have been told to watch one another.

The more than 4.9 million daily riders of the New York City subway system regularly hear two scripted announcements from conductors as their trains roll through the tunnels. One warns passengers to protect their valuables and to protect themselves by reporting suspicious behavior to a police officer or MTA employee. Another says that backpacks and other large packages “are subject to random search by the New York City Police Department.”

That’s not quite true, and that bothers Joseph Gehring.

Gehring is a 37-year-old attorney who lives in Manhattan and is the son of a retired police officer. He has been bothered by the NYPD’s subway bag searches since they began in July 2005 in response to a failed attempt to bomb London’s subways that came mere weeks after a deadly attack on trains and buses there. He was one of five people who sued to stop the program. Public opinion backed Police Commissioner Kelly and the searches. A Quinnipiac University poll conducted a few weeks after the searches began found that most New Yorkers wanted their basic civil liberties protected, but 72 percent backed the subway bag searches. But Gehring and his fellow plaintiffs argued that the NYPD was violating the fourth Amendment when officers searched belongings without some “individualized suspicion” that their owner had done or was planning to do something wrong. The police—who were joined in their defense by an association of families of September 11 victims, the U.S. Justice Department and the conservative Washington Legal foundation—countered that courts imposed more lenient fourth Amendment requirements when the government faced a “special need,” like protecting people from terrorism. Searches at the entrance to a courthouse or before boarding a plane were already a way of life, the NYPD argued; subways were no different.

But for that argument to hold, the search policy has to be an effective way of meeting the NYPD’s special need. The NYPD’s bag search program randomly targets different stations and different numbers of stations on different days, selecting people to search at random based on a numerical protocol set by the commanding officer on the scene. So some stations and some passengers don’t get searched. And if you do get stopped, you can avoid a search by simply leaving the station—making the program “voluntary.”

Interestingly, Gehring and the other plaintiffs argued that the NYPD’s program was too limited to justify the intrusion on individual riders. The reason: It couldn’t be any good at stopping terrorists, since someone trying to bomb the subways stood a good chance of never being stopped and, if he was stopped, could just walk away and try a different entrance to the system.

Gehring and company asked the NYPD for data on the scope of the searches, and said that the information could be restricted to lawyers and kept from the general public if there were security concerns. The NYPD claimed the information was too dangerous to reveal at all. A federal judge agreed, saying that the “unpredictability” of the program was crucial to its success and that unpredictability depended on secrecy. Later, the same judge upheld the search program. The city also won in appeals court.

For Citizens Crime Commission head Richard Aborn, that decision looms large in assessing the civil liberties impact of the city’s security measures. “I do think they’ve struck the right balance,” he says of Kelly and Bloomberg. “And I think what’s really important is that those who wish to challenge the NYPD have full access to the courts, and the courts have not been reluctant to review these sorts of challenges.”

The courts, however, usually grant great latitude to elected officials and law enforcement when it comes to public safety—and that was the case in the review of the subway searches. In making its arguments, the NYPD relied on the testimony of well-regarded experts, from its own top intelligence and counterterrorism officials to national figures like Richard Clarke. They argued that a random program would make it harder for terrorists to predict when and how they could access the subway system to bomb it and thus could disrupt or deter carefully crafted terrorist plots.

But there are counterarguments. Bruce Schneier, a California-based counterterrorism analyst, says it’s foolish for agencies to try to guess what terrorists are going to do next based on what they’ve already done. “It’s not even a fair game,” he says. In this contest, the city picks a terrorist tactic to defend against and makes that defense known to the public, while the terrorist is free pick a different mode or target of attack. “We take away guns and knives, and they use box cutters. They’re going to do something else.”

There’s no question that trains have been a favorite target of terrorists. In 1995, a Japanese group attacked the Tokyo subways with Sarin gas, killing 12. In 2004, there were deadly bombings of the Moscow and Madrid rail systems and an attempt on the French rail network. Then London got hit. Trains make a tempting target for killers: Some New York City subway trains can carry more than 1,400 people.

But there’s no way of knowing if the subway bag searches are working; it’s supposed to be a deterrent, and a deterrent’s value is only evident when it fails. “You could say nothing’s happened since we started these bag searches,” says Marq Claxton, a representative of 100 Blacks in Law Enforcement Who Care and a retired police detective. “Well, I could say nothing’s happened since I ate a bag of potato chips.”

Outside of the New York City area (where the subway, New Jersey Transit, Metro-North and the Long Island Rail Road all have bag searches), police in Boston searched train passengers’ bags during the 2004 Democratic National Convention and resumed the practice in 2006. Amtrak announced earlier this year that it was starting bag searches. Those are the only American mass-transit systems known to search bags. Overseas, authorities in London are considering new bag searches at high-risk train stations, and some Israeli bus and train stations feature screening. It’s not like Bloomberg and Kelly were alone in wanting to ramp up potentially intrusive security on the subway system. In the late summer of 2005, then-City Council Speaker Gifford Miller—arguably the most liberal candidate in the mayoral race (and now a City futures board member)—called for the MTA to install surveillance cameras in every station and said that Bloomberg’s subway bag searches had, if anything, been ordered too late. Other Democratic candidates also called for more cameras.

Bloomberg himself elevated the sense of threat in October 2005, when word came in from Iraq of a plot to attack the subway system. Hours before a mayoral debate at the Apollo Theater that Bloomberg had made a controversial decision to skip, the mayor went on television to describe the threat—a very rare step for the usually discreet and reserved mayor. A few days later, the threat was exposed as bogus. The following year, Eric Adams, then a police captain and head of 100 Blacks in Law Enforcement Who Care, was brought up on departmental charges by the NYPD for telling a TV interviewer that the police mobilization in response to the subway threat was more show than substance. Police officials disciplined him for speaking to the media without permission.

Gehring now rarely carries a bag with him on the subway because of his opposition to the searches. He said he decided to sue when, during the first days of the search program, he was stopped by the police and told, “I need to look in your bag.” That didn’t seem voluntary, since under the program the city laid out in federal court, a person can refuse the search and be told to leave the subway station. And that’s what bothers Gehring about those subway announcements: They don’t make the searches seem voluntary either. Nor do they make it clear that the searches are only authorized at entrances. The announcements suggest that a police officer can stop you anytime you’re in the subway system and look in your bag, Gehring says. “Over time, people will just come to accept that that is the policy.”