Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, August 05, 2005

Challenging Random Subway Searches

The NYPD's random searches of New York MTA riders is a familiar topic by now, and his been covered well by others, Majikthise in particular.

ACLU devotee Emily just directed my attention to the complaint filed by the NYCLU seeking declaratory and injunctive relief from the policy it rightly indicts as both invasive and ineffectual. I'd quote more if it weren't a scanned in document, requiring me to transcribe manually, but this portion of the complaint pretty much sums it up:

2. Under the subway search program as the Police Department has implemented it, the NYPD is not conducting searches at most subway entrances at any given time, is giving advance notice about searches at those entrances where searches are being conducted, is allowing people selected for a search to walk away, and is not basing the searches on any suspicious activity of individuals. Consequently, as common sense would suggest, the NYPD's subway search program is virtually certain neither to catch any person trying to carry explosives into the subway system nor to deter such an effort. Indeed, given the way the Department has implemented its search program, the only people being searched are innocent users of the subway system.

Grafs 34 - 38, on pages 8 - 11, which introduce the named plaintiffs, are worth your time as well. Especially notable is the description, in graf 37, of plaintiff Partha Banerjee, a native of India with advanced degrees from American schools in journalism and biology.
As a peaceful political activist, writer and media critic who is concerned about the Bush Administration's actions in the name of war on terrorism, Mr. Banerjee often carries in his backpack lawful, written materials he believes police officers may find objectionable. He is fearful that, if he is searched, he might be singled out for mistreatment, including unlawful interrogation and detention . . . . As someone with brown skin, Mr. Banerjee also is concerned that, with the new fear and paranoia, he is more likely to be singled out by police officers for a search.

The whole complaint is well worth the time, not because it will fail or succeed necessarily, but beacause it's a well-drafted pleading and it does an excellent, concise job of elucidating the myriad practical and constitutional problems with NYPD's hystrionic and ineffectual search policy.


Anonymous binky said...

"is allowing people selected for a search to walk away"
You are allowed to do this by law.
Check this site.

11:51 AM  
Blogger Moon said...

right. but just as that makes the search regime marginally less onerous it also makes it massively less effective. that's really the heart of the NYCLU's argument: that inasmuch as one should assess the constitutionality of the policy (as in all systematic search contexts) by weighing the intrusiveness against the government interest served, here there's plainly no way this should go on: it serves, at best, the sole purpose of slapping a band-aid on certain worried MTA riders' fears; no one with two brain cells to rub together would fail to find a good place to set off a bomb notwithstanding the searches. on the other hand, however, requiring passengers to submit to a search in order to ride mass transit is tremendously intrusive. the policy thus fails any sort of balancing test one can imagine applying.

12:25 PM  
Blogger Moon said...

good link, by the way. a useful source of information, especially with respect to how one should interact with police. in one of the bios on the NYCLU complaint, a search that complainant to permit is recounted, noting the general look of surprise on the officer's face upon being informed that the rider did not consent.

12:26 PM  
Anonymous binky said...

And thanks for setting me straight on the big picture. They are now selling messenger bags on CafePress that have th fourth amendment printed on them. I love the constitution, oh yes I do!

8:16 PM  
Blogger Moon said...

not that this has much to do with anything, but i recently just purchased a new timbuk2 messenger bag, custom-coordinated with my fixie susan's color scheme (yes, that's the sort of dork i am), that consists of colors on which a white art pen would show up nicely.

i've been considering adorning most of the flap with a large legend: DON'T HONK IF YOU KNOW THE LAW, fringed with multiple citations to those portions of the Pennsylvania Motor Vehicle and Pedalcycle codes governing the interaction of bicycles and motor vehicles on Pennsylvania roads.k

1:24 PM  

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