NYCLU Sues New York City Over Subway Bag Search Policy

Affiliate: ACLU of New York
August 4, 2005 12:00 am

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Challenge Filed on Behalf of Five New Yorkers, Including a 9/11 Survivor

NEW YORK — In response to the New York Police Department’s unprecedented policy of subjecting millions of New Yorkers to suspicionless searches, the New York Civil Liberties Union today filed a lawsuit to halt the practice.

Donna Lieberman, Executive Director of the NYCLU, the plaintiff Partha Banerjee, and NYCLU Associate Legal Director Christopher Dunn, announce filing the lawsuit against New York City’s search policy on public transportation.

Read more about the plaintiffs

NYCLU’s brief


“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 suspicionless 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.”

The lawsuit filed today in federal court argues that the NYPD is violating the Fourth Amendment rights of commuters by adopting and enforcing a policy of randomly searching possessions of those seeking to enter the subway system. 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.

The NYCLU filed the lawsuit on behalf of five New Yorkers who are deeply concerned about the civil liberties and safety implications of the bag search policy:

· Brendan MacWade survived the World Trade Center attacks of 9/11. He was recently searched by the NYPD at the Chambers Street station.

· Partha Banerjee is concerned that if he is searched some of the political materials he carries in his bag might prompt retaliation, and he also worries that his skin color might cause police to single him out for searches.

· Joseph Gehring, an attorney, a lifelong Republican, and son of a police officer, is concerned that a search of the papers he keeps in his bag might violate the confidential privilege he shares with his clients.

· Norman Murphy goes out of his way to avoid being searched by police because he considers it a violation of his civil liberties

· Andrew Schonebaum’s bag was searched recently, prompting him to join the lawsuit to express his concerns.

In addition to violating the constitutional rights of millions of subway riders, the NYPD policy appears to be ineffective as a security measure, the NYCLU said. At any given time, the NYPD is not conducting searches at the majority of subway entrances. They are giving advance notice about searches at subway entrances where searches are being conducted, and allowing people selected for a search to refuse to comply and walk away. In addition, the NYPD is not basing the searches on any suspicious activity of individuals.

As common sense would suggest, the NYPD’s program is virtually certain to fail at catching any person trying to carry explosives into the subway system or deterring such an effort, the NYCLU said. Indeed, given the way the department has implemented its search program, the only people being searched are users of the subway system who have exhibited no suspicious activity.

Although the NYPD claims they are conducting searches on a random basis, the large number of people entering the transit system and the lack of control over that traffic results in people being selected for 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 suspicionless searches and that serves virtually no public-safety purpose,” said Christopher Dunn, Associate Legal Director of the NYCLU and lead counsel on the case.

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

The NYCLU lawsuit, which names as defendants Police Commissioner Raymond Kelly and the City of New York, was filed today in U.S. District Court for the Southern District of New York. Assisting on the case are Arthur Eisenberg, Legal Director of the NYCLU, and staff attorneys Jeff Fogel and Palyn Hung.

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