NYC Subway Searches Ruled Constitutional (For Now)
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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 bags and containers at subway entrances is not a violation of the Fourth Amendment. On the other hand, it was common knowledge that, regardless of how the trial judge ruled, the losing party would appeal. One way or the other, expect the case eventually to reach the Supreme Court.
Judge Richard M. Berman's opinion is maddening. He basically crafts a wholly unprecedented exception to the Fourth Amendment. According to Judge Berman, a court should now show not only great deference, but absolute deference to the government in any situation where the purported state interest is "combating terrorism." Stated differently, the word "terrorism," according to Judge Berman, is now sufficient to justify any and every violation of the Fourth Amendment that the government feels like implementing.
Like I said: maddening.
Judge Berman does go through the motions of performing a cursory Fourth Amendment analysis, and in the process butchers every precedent regarding suspicionless search and seizure. He cites to cases that can be only be reasonably interpreted as holding against the MTA's random suspicionless search program. One example: Skinner v. Railroad Labor Executives, 489 U.S. 602 (1989) (requiring a direct and obvious threat to public safety to justify random drug testing of government employees).
Another: Chandler v. Miller, 520 U.S. 305 (1997) (holding against random drug tests of candidates for public office).
Another: Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (holding against random drug testing of Treasury agents not directly involved in the War on Drugs).
Another: Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (limiting random drug testing in schools to student athletes, who because of their activities face a special risk from drug abuse).
Another: Delaware v. Prouse, 440 U.S. 648 (1979) (holding against totally random stops of motor vehicles).
Every single one of these cases, even where the search was upheld, still makes perfectly clear that there is in fact some limit to random suspicionless searches, no matter how "compelling" the government interest may be. But Judge Berman treats every single one as somehow validating his incomprehensible ruling of "absolute deference under all circumstances."
Like I said: maddening.
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One more glaring weakness in Judge Berman's reasoning: He allows the government to be its own expert witness as to whether searches are "effective" --
Like I said: maddening.
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Showing "great deference" to the government in matters of national security and public safety gave us Korematsu v. U.S., 323 U.S. 214 (1944). Here Judge Berman shows not great deference but absolute deference, and not to national policy makers but to local hack bureaucrats. Of course, opening your purse or backpack is not the same as finding yourself in an internment camp, but the principle is the same. It is not only the right but the duty of courts to stand athwart yelling "Stop!" at the runaway train of Fourth Amendment evisceration. Judge Berman instead lied down on the track and let himself be decapitated.
Like I said: maddening.
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If I understand the MTA's random suspicionless search policy correctly (I can't find an official link — go figure), it implements random suspicionless searches only at subway entrances, but also can include searches on buses after the passengers have boarded. That's an entirely different fact pattern that could require an entirely different analysis (and litigation). Stay tuned...
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Judge Berman's decision can be found here (a very low-quality PDF, 41 pages — jump to page 31 for the legal analysis).
More thoughts at California Yankee, Concurring Opinions, Hammer of Truth, Crime & Federalism, Law & Society.
Judge Richard M. Berman's opinion is maddening. He basically crafts a wholly unprecedented exception to the Fourth Amendment. According to Judge Berman, a court should now show not only great deference, but absolute deference to the government in any situation where the purported state interest is "combating terrorism." Stated differently, the word "terrorism," according to Judge Berman, is now sufficient to justify any and every violation of the Fourth Amendment that the government feels like implementing.
Like I said: maddening.
Judge Berman does go through the motions of performing a cursory Fourth Amendment analysis, and in the process butchers every precedent regarding suspicionless search and seizure. He cites to cases that can be only be reasonably interpreted as holding against the MTA's random suspicionless search program. One example: Skinner v. Railroad Labor Executives, 489 U.S. 602 (1989) (requiring a direct and obvious threat to public safety to justify random drug testing of government employees).
Another: Chandler v. Miller, 520 U.S. 305 (1997) (holding against random drug tests of candidates for public office).
Another: Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (holding against random drug testing of Treasury agents not directly involved in the War on Drugs).
Another: Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (limiting random drug testing in schools to student athletes, who because of their activities face a special risk from drug abuse).
Another: Delaware v. Prouse, 440 U.S. 648 (1979) (holding against totally random stops of motor vehicles).
Every single one of these cases, even where the search was upheld, still makes perfectly clear that there is in fact some limit to random suspicionless searches, no matter how "compelling" the government interest may be. But Judge Berman treats every single one as somehow validating his incomprehensible ruling of "absolute deference under all circumstances."
Like I said: maddening.
---
One more glaring weakness in Judge Berman's reasoning: He allows the government to be its own expert witness as to whether searches are "effective" --
Here the Court is comfortable relying principally upon the expert testimony of [MTA] Commissioners...The MTA wants to implement a constitutionally suspect random suspicionless search. Such a search must be shown to be "effective." How to show its effectiveness? Simple: Ask the MTA (and believe them, even in defiance of all common sense).
Like I said: maddening.
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Showing "great deference" to the government in matters of national security and public safety gave us Korematsu v. U.S., 323 U.S. 214 (1944). Here Judge Berman shows not great deference but absolute deference, and not to national policy makers but to local hack bureaucrats. Of course, opening your purse or backpack is not the same as finding yourself in an internment camp, but the principle is the same. It is not only the right but the duty of courts to stand athwart yelling "Stop!" at the runaway train of Fourth Amendment evisceration. Judge Berman instead lied down on the track and let himself be decapitated.
Like I said: maddening.
---
If I understand the MTA's random suspicionless search policy correctly (I can't find an official link — go figure), it implements random suspicionless searches only at subway entrances, but also can include searches on buses after the passengers have boarded. That's an entirely different fact pattern that could require an entirely different analysis (and litigation). Stay tuned...
---
Judge Berman's decision can be found here (a very low-quality PDF, 41 pages — jump to page 31 for the legal analysis).
More thoughts at California Yankee, Concurring Opinions, Hammer of Truth, Crime & Federalism, Law & Society.
All Related Posts (on one page) | Some Related Posts:
- Amtrak to Embrace Dubious Random Bag Searches
- Circuit Court Upholds Worthless Subway Searches
- The Random Searching of Pelham One Two Three...
- Subway Searches and Korematsu
- NYC Subway Searches Ruled Constitutional (For Now)
- Terror Imitates Baseball...
- NYC Transit Searches: First Reports of Abuse Coming In
- NYC Mass Transit Begins Random Searches
- On "Consenting" versus "Submitting" to a Search
Posted by Kip on
4 December 2005
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