NYCLU Sues City Over Subway Bag Search Policy

The lawsuit filed today argues that the NYPD is violating the Fourth Amendment rights of commuters by adopting and enforcing a policy of searching possessions of those seeking to enter the subway system without any suspicion of wrongdoing. Since the police adopted this policy two weeks ago, officers have searched the purses, handbags, briefcases and backpacks of thousands of people, all without any suspicion of wrongdoing.

“This NYPD bag search policy is unprecedented, unlawful and ineffective,” said Donna Lieberman, Executive Director of the NYCLU. “It is essential that police be aggressive in maintaining security in public transportation. But our very real concerns about terrorism do not justify the NYPD subjecting millions of innocent people to suspicion-less searches in a way that does not identify any person seeking to engage in terrorist activity and is unlikely to have any meaningful deterrent effect on terrorist activity.”

In addition to violating the constitutional rights of millions of subway riders, the NYPD policy appears to be ineffective as a security measure. 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. As common sense would suggest, the NYPD’s 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.

And although the NYPD claims that they are conducting searches that are purely random, the large number of people entering the transit system and the lack of control over that traffic result in people being selected for a search in a discretionary and arbitrary manner, which creates the potential for impermissible racial profiling.

“We have no objection to reasonable searches, but we cannot and will not stand by while the police department seeks to expunge the Fourth Amendment from the Constitution with a program that subjects millions of people to suspicion-less searches and that serves virtually no public-safety purpose,” said Christopher Dunn, Associate Legal Director of the NYCLU, lead counsel on the case.

Long-established constitutional principles hold that individuals retain the right to move about on our public streets and thoroughfares freely and without police intrusions and that, as a general matter, police officers may not search individuals on our sidewalks and thoroughfares in the absence of individualized suspicion.

The NYCLU lawsuit was filed today in US District Court for the Southern District of New York. Assisting on the case are Arthur Eisenberg, Legal Director of the NYCLU, and NYCLU attorneys Jeff Fogel and Palyn Hung.

Click here to read the NYCLU’s lawsuit (requires the free Adobe Reader).

Click here to read about the plaintiffs.