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NYCLU Subway Search Challenge Goes To Trial

The New York Civil Liberties Union’s five plaintiffs took the stand in Judge Richard Berman’s court in the opening day of what’s expected to be a two-day bench trial (there is no jury). Each of the plaintiffs testified that they objected to being searched for simply trying to get on the subway. The NYPD announced its new policy on July 21st to begin random bag searches of passengers using the City’s subway system.

NYCLU Associate Legal Director Christopher Dunn, who is also lead counsel, told the court in opening remarks that the only people being searched are innocent New Yorkers. “The search program subjects millions of New Yorkers to the possibility of suspicion-less police searches every day,” Dunn noted. “The program marks an unprecedented and unjustified erosion of the privacy rights of the American public.”

Lead plaintiff Brendan MacWade told the court he was first searched before he could enter a station to board the “A” train on July 22nd, the first full day of the NYPD search policy. MacWade said the subway plays a vital role in his day-to-day life and the random searches represent an intrusion on his privacy. MacWade and the other 4 plaintiffs agreed that the government conducting these searches in a public arena so vital to everyday life makes the City’s policy especially troubling and unconstitutional.

In court, the NYCLU also produced its survey that was conducted by a team of monitors over a 3-week period. The monitors made visits to multiple station entrances that totaled more than 5,500 in the City’s subway stations. In their survey they observed just 34 police checkpoints for bag searches in that time.

Also testifying were various NYPD top officers, including Inspector Kerry Sweet. Inspector Sweet said he had no knowledge at any time, including now, of a specific terrorist threat to the City’s subway system and he had no knowledge of how effective the bag search policy is. During rush hour, Sweet said police officers could increase the ratio by which they randomly select passengers for a search from 1 in 6 to a search of 1 in 25 when the crowds are huge.

When Dunn suggested that police might not be able to count that fast when there is a surge of passengers, Sweet acknowledged that “I suppose it would be difficult, but we tell them to do the best they can.” Rush hour is the time period police experts have said that they believe a terrorist attack is likely to take place.

Police officials also told the court that when the NYPD devised its bag search policy, they consulted with neither the FBI or with the Department of Homeland Security.

The trial resumes at 9.15am in Judge Richard Berman’s court with testimony from several police and security experts. Closing argument will take place December 2, 2005.

Trial Update: Day 2

November 1, 2005 — The judge in the subway bag search trial heard from two witnesses for the New York Civil Liberties Union, which is suing to end the NYPD’s subway search program. The NYCLU has charged that the search program, as designed and implemented, violates fundamental rights of privacy and cannot be justified as an effective measure against terrorism.

One of the NYCLU’s witnesses was Gene Russianoff, who has 24 years of experience dealing with transit issues and is perhaps the foremost expert in New York City on the design and operation of the subway system. Russianoff told the court that, in a subway system that has over 1,000 entrances and that remains open 24 hours a day, it is easy for anyone to evade the NYPD checkpoints and enter the subway. As an example, he noted that the Times Square station alone has 13 entrances, while earlier police testimony revealed that even when checkpoints are set up at stations they are only at one entrance to the station. Russianoff also testified about how the public has reacted to the searches: “Some people say the checks give a sense of security, but most don’t think it works,” said Russianoff.

Also testifying for the NYCLU was Charles Pena, a security analyst with over 14 years of experience analyzing security measures designed to protect targets from attack, including by terrorists. In response to the NYPD’s contention that “uncertainty is the enemy of terrorists,” Pena explained that the uncertainty in the NYPD’s program was so small and so predictable that terrorists could easily plan around it. Pena further explained a search program that is only at a limited number of entrances and that allows people to walk away from a search and enter the system through another entrance has a deterrent effect that is close to zero.

The trial ended at mid-day. Closing arguments are scheduled for December 2, 2005.

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