Why is the National Guard Occupying NYC Subways?

-- By ShianneWilliams

Introduction

In March of this year, Governor Kathy Hochul of New York announced that she would deploy hundreds of National Guard members, state police, and Metropolitan Transportation Authority officers into the City's busiest subways. This move was merely step one of Hochul's "five-point plan" for "deterring crime" and making New Yorkers feel more safe on the subway. However, in a nation deeply affected by instances of police brutality and a pervasive sense of distrust towards law enforcement, it is unsurprising that many individuals do not perceive this legally questionable decision by the governor as a means of increasing safety.

How can she do this (legally)?

The National Guard is a US military branch that serves both federal and state governments. The Insurrection Act (Title 10, U.S. Code) allows the federal government to use the National Guard during times of civil disorder, as happened during the 1992 Los Angeles riots. At the state level, governors have the authority to use the National Guard when responding to domestic emergencies under Title 32 of the U.S. Code. Governors can call on the National Guard to address a range of issues, from natural disasters to "civil unrest," such as during Hurricane Katrina in 2005, or following the 2020 protests against systematic racism and polic brutality when several governors deployed the National Guard to "restore order” in their respective cities.

While the governor’s authority to deploy the National Guard in these situations is well established, concerns remain regarding the legality of bag checks in the subway system under the Fourth Amendment. Past case law has outlined some exceptions to 4th amendment protections, particularly in cases involving what the court deems a special need. In New Jersey v. TLO (1985), school officials were accused of violating the Fourth Amendment after searching a high schooler’s bag without a warrant. However, the US Supreme Court ruled that while students have Fourth Amendment protections, school officials do not need a warrant or probable cause to search students’ belongings because of the government’s need to ensure safety in these circumstances. This case established that a compelling interest such as school safety could justify reduced Fourth Amendment protections.

However, in City of Indianapolis v. Edwards, SCOTUS clarified that these checkpoint searches cannot be used for general crime control. The Court struck down narcotics roadblocks, stating that they were unconstitutional because their purpose—general law enforcement—was too far removed from public safety concerns. This case reinforced that checkpoints and searches must directly relate to public safety rather than broader crime deterrence.

Notably, this is not the first time bag checks have been used in the subway system. In 2005, Mayor Michael Bloomberg instituted the practice in response to the terrorist attacks in London and Madrid. The New York Civil Liberties Union (NYCLU) challenged the constitutionality of these searches, arguing they violated Fourth and Fourteenth Amendment protections. The District Court confirmed the legality of the bag searches, ruling that they were not “impermissibly intrusive.” In MacWade v. Kelly (2006), the Second Circuit affirmed this decision, stating that NYC’s use of “random, suspicionless” bag checks in the subway system was justified by the city’s compelling interest in preventing terrorist attacks. The Court viewed this as a “special need” that was “narrowly tailored and sufficiently effective” to address a legitimate public safety threat.

The bag check procedures in NYC subways were challenged again in Sultan v. Kelly et. al (2009), when a man was stopped 21 times between July 2005 and June 2008. The NYCLU argued that the NYPD had violated his Fourth and Fourteenth Amendment rights. Given the NYPD’s system of checking every 25th bag, the NYCLU calculated that there was a one in 165th million chance that Sultan should have been stopped this many times, pointing to racial profiling and evidence that these bag checks were unconstitutional. A federal judge approved a monetary settlement after Sultan twice offered to forgo it, provided the NYPD agreed to monitor their bag check system for racial profiling—an offer the NYPD refused.

Potential Challenges

1. Unclear Purpose of Searches

The stated purpose of the subway bag checks—ensuring safety and deterring crime—raises legal concerns. Although seemingly connected, these justifications raise distinct legal implications. Hochul’s claim that these bag checks will help "deter crime" could be problematic, as City of Indianapolis v. Edmond has already stated that checkpoints aimed at general crime control are unconstitutional. Removing "criminals" from the subway does not inherently correlate with the safety of other subway riders. For example, if someone were carrying illegal drugs through the subway, although classified as a criminal, their actions may not directly harm other passengers. Someone stopped and charged with a crime after being searched may challenge the system for violating their Fourth Amendment rights, particularly if the search wasn’t tied directly to a pressing public safety concern.

2. Lack of Transparency

Another potential legal challenge arises from the NYPD’s refusal to collect data regarding the demographics of those being stopped, the frequency of the stops, what is being ceased from bag searches, and overall adherence to checkpoint protocols. This lack of transparency makes it difficult to assess whether racial profiling or other constitutional violations are occurring. The NYPD’s policies against collecting demographic data from who they are stopping and refusal to disclose how individuals are being selected for bag checks make this issue harder to address. Even though the collection and analysis of such data are essential for evaluating the constitutionality and effectiveness of the deployment, the city has argued that releasing such information makes it easier to know how to avoid the search.

Conclusion

Despite claims that the subway now seems like a “warzone,” Hochul has stated that the additional security measures have been successful, citing NYPD data that indicates a 5% decrease in transit crimes compared to last April. While ostensibly aimed at enhancing public safety, Hochul's deployment of the National Guard raises serious concerns regarding its legality and potential for unintended consequences. I see a need to reevaluate the constitutionality of "special needs" carveouts under the Fourth Amendment entirely, particularly in light of a climate where the police make so many feel less safe. However, putting pressure on the City to be transparent about its system for deciding whose bag to search and begin collecting data regarding the demographics of people searched seems like a reasonable place to start.

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