In a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:
It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.
Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:
Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)
I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.
I have attacked at length judicial deference to decisionmakers under review in cases involving constitutional rights in my article, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999):
When courts recite the rhetoric of the deference principle that they will not “second guess” the judgment of a decisionmaker or will not pass on the “wisdom” of certain policies they employ a specific practice of judicial review. . . . Courts accept uncritically the factual and empirical evidence of the government supporting its laws and policies in a profound number of cases where the deference principle is invoked.
The practice of deference has drastic effects on the outcomes of cases because factual and empirical evidence plays an enormously influential role in the interpretation of the Constitution. . . .
Determining how closely the means of the law are tailored to its end involves factual and empirical judgments, including determinations about the viability of the means, the effectiveness of the means, and the existence and effectiveness of alternative means.
In deference cases, the very minimal examination of factual and empirical evidence tends to override whatever level of scrutiny is applied, and is often dispositive.
I apologize for quoting so extensively from my article, but this court’s decision really has me worked up. Toward the conclusion of my article, I write:
Courts can be sensitive to the needs of officials and institutions while simultaneously engaging in a vigorous critical inquiry into their judgments. . . . . Judges must remain wary of blind acceptance of authority and subject everything to constant critical inquiry.
Deference is the negation of critical inquiry. Deference assumes that judicial review via critical inquiry into empirical evidence is equivalent to judicial legislation and the imposition of judicial ideology. By making this equivalency, critical inquiry of facts is banished from judicial review. Deferential review merely becomes a form of additional legitimacy, a judicial stamp of approval for the decisions made by government officials. . . .
After making its general incantation of deference (which means that the government will automatically win), Judge Berman goes on to articulate the “persuasive” arguments of the government:
The Court is also persuaded by Commissioner Sheehan’s opinion that the Program “reinforces the awareness of police officers, transit workers and the public of the need to be alert.”
This is a silly argument. Essentially, the court says that providing the police with greater abilities to engage in searches without constitutional protections will make the police more “alert.” Well, that’s nice — we should all be happy to sacrifice liberties so that the police become more alert. And the court notes that it will teach the public to be more alert too. So the argument is that we can make the people more alert by intruding upon their privacy. Let’s try strip searches — these will certainly make the cops more alert, and it will have great effects on public alertness too, and the cops can have a lot of fun at the same time.
The court also reasons:
[T]he Court is persuaded that the randomness of the searches rather than the actual number of searches conducted is (primarily) what makes the Container Inspection Proogram effective.
In other words, the court is saying that any small increase in terrorists believing they might get caught makes such a policy an effective. But if “effectiveness” is to have any meaning, the benefits of a policy that requires a sacrifice in liberty should be more than just trivial or speculative. There is no evidence that this policy will have any deterrent effect. In response to arguments by Dave Hoffman on this point, I wrote:
Dave argues that “there is a good argument that terrorists, subject to human behavioral tics, are likely to vastly overestimate the likelihood of being caught and therefore be more deterred than rational terrorists (what a contradiction in terms that is!) would be.” But Dave forgets that many terrorists are different from ordinary criminals in that terrorists are often on a suicide mission. They care about getting caught only because their mission might fail, not because of any potential legal sanction that might be imposed. If Dave is right, why on 9-11 did the terrorists try to use planes? Why not try some other means of terrorism? After all, planes involve a lot of security whereas other targets don’t. Wouldn’t the “risk-adverse” terrorist who might overestimate being caught attempt something else? Why did they go to flight school and expose themselves at many points to being detected when they could have tried something different? I’m certainly no expert on terrorist behavior, but I’m not very convinced by Dave’s theory.
Dave says: “Will terrorists then move on to other targets of opportunity? Probably. But forcing them to do so would be a victory.” I’m not so sure. This depends upon what the other targets are. Is it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?
If this is a “reasonable method of deterring (and detecting) a terrorist bombing of the New York City subway system” (opinion, p. 36), then I can’t think of much that wouldn’t be reasonable. Fourth Amendment reasonableness must have some teeth — it should distinguish rational responses from merely symbolic ones.
Turning to the privacy side of the balance, the court concludes that the policy “only minimally intrudes upon privacy interests.” (p. 38). I don’t believe that “minimal” can describe a massive program of random searching of people’s baggage.
It is bad enough that so much money and resources must be wasted on a largely symbolic exercise to make public officials look like they’re doing something to protect us when they’re not. This cosmetic program for public officials which drains money from other more serious threats. It is even worse that people must sacrifice liberty and convenience too. These are the type of search programs that the Fourth Amendment should weed out.
2. Solove, Terrorism, Deterrence, and Searching on the Subway (Balkinization)
Originally posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.