When Danger and Repression Go Hand in Hand:
Why A New York Federal Judge's Controversial Ruling on Protester Bag Searches Was Correct

By SHERRY F. COLB

Wednesday, Jul. 28, 2004

Earlier this month, in Stauber v. New York, federal judge Robert W. Sweet issued a preliminary injunction against various practices of the New York Police Department. The injunction included a prohibition against the police performing blanket searches of protestors' bags and backpacks at the upcoming Republican National Convention (RNC). The ruling has potential implications for security measures around the country this election season.

In Stauber, Judge Sweet ruled that such blanket searches would violate the Fourth Amendment right against unreasonable searches and seizures, in the absence of a specific threat to public safety and an indication of how blanket searches could reduce the threat.

The New York Daily News reacted to this ruling with the headline "Judge Mental." Editorials pilloried Judge Sweet, and even suggested that his ruling be ignored and defied by the police.

In fact, the ruling makes a lot of sense. Indeed, it does New Yorkers a service by recognizing that a loss of civil liberties does not necessarily and always enhance our collective safety.

The Lawsuit

The Stauber lawsuit challenges a variety of practices that New York City police have employed to neutralize dangers that can accompany public demonstrations and protests. These practices include the use of horses for crowd dispersal and the limiting of protesters to spaces within metal barricades or "pens" that they cannot easily enter or exit. This column focuses on an additional practice: the blanket search of bags as a condition for joining a protest.

Those seeking the injunction have challenged the blanket bag search policy on the ground that it violates the Fourth Amendment - which, as noted above, promises security from unreasonable searches. Plaintiffs argue that searching everyone who wants to participate in a protest is not "reasonable."

Like the sorts of searches that motivated the drafting and ratification of the Fourth Amendment, moreover, the bag checks challenged in this case burden not only the right of privacy but the right of free expression as well, because they selectively hinder those assembling for political reasons.

"Mental?" Why Judge Sweet's Ruling Was Not Only Sane, But Sensible

One could easily dismiss the Daily News headline as propaganda. It is difficult to imagine a productive dialogue with a person or organization that characterizes those who disagree as simply crazy. Nonetheless, it is worth considering the conclusion that any judge who would prohibit bag searches at the RNC must be insane, because the underlying reasoning process that led to this conclusion is probably widely shared.

The RNC is taking place in New York City, the primary site of the September 11, 2001 terrorist attacks. Recent intelligence reports indicate, moreover, that Al Qaeda is planning a large-scale attack during the U.S. election season. These facts and this intelligence together demand that authorities take effective measures to prevent further atrocities.

In my view, none of this is controversial: There is a real danger of terrorism in New York, and it is incumbent upon those charged with guarding our safety, including the police, that they do what is necessary to protect us.

The next assumption in the reasoning process is that the police can help protect the city from terrorists by searching all of the protestors' bags.

On this assumption, Judge Sweet - who has ordered the police not to search the bags - must be oblivious or indifferent to the threat that Al Qaeda poses to our citizens. If so, then he is insane or, as the Daily News puts it, "mental."

The Erroneous Presumption that Searches Equal Safety

The glaring flaw in this reasoning process is the assumption that the police can help protect the city by searching protestors' bags.

Consider the searches that we experience regularly at various buildings considered to be potential targets. I have certainly observed such searches in action, and virtually all of my readers probably have as well. At such buildings, we enter and see a sign that warns us that bags will be checked. (When I see that sign, my first thought is that I will now be late for whatever I came to the building to do.)

A few steps after the sign, you wait your turn and then place your bags down in front of the person who will perform the search. This person usually opens the most obvious pockets in your bag and then, if he or she is polite, thanks you. The search is not particularly thorough, because thorough searches performed on everyone entering a public building would slow down entry too much, or require very expensive equipment of the sort one encounters at an airport.

The result is that these routine searches are worse than useless. They create the (false) impression that someone is looking out for our safety, while they simultaneously divert scarce resources that might actually detect a threat.

Searches of everyone's bags, in other words, are not just costly to our privacy (a right that many of us might be quite willing to forego in the interests of safety). They are also a poor use of the limited resource of police protection.

Just as police cannot be everywhere at once, they cannot be doing everything at once. If they are opening the main compartments of each person's bag to look for a bomb or gun, then they are not taking measures that might actually be effective in deterring, detecting, and preventing terrorism.

Consider John Doe, a hypothetical would-be terrorist. John might indeed try to infiltrate a protest at the RNC, because he could inflict highly public injury to a large number of people, given the predictable crowds. It is therefore sensible to make security a greater priority at such an event than, say, at a rare bookstore on the Upper East Side.

But would John hide his explosive device in the main compartment of a bag? Not likely, unless John is a very stupid terrorist. If he has observed the manner of blanket searches in the past, he knows enough to hide his weapon on his person (since blanket pat-downs or "frisks" are not permissible) -- or in a less obvious compartment of his bag.

Police, busily performing their cursory searches of every person, will therefore probably miss John's explosives. Meanwhile, their presence and apparent activity will create an illusory sense of safety. And that sense of safety, in turn, may have a lulling effect on people who might otherwise have noticed that John was nervous -- or that he was wearing a bulky trench coat on a hot August day.

Standards for a Search: What the Fourth Amendment Requires

Under ordinary circumstances, a police officer may not perform a "search" -- that is, the officer may not infringe upon reasonable expectations of privacy -- without probable cause to believe that the search target is engaging (or has engaged) in a criminal act. Invasive investigation must generally focus on people who the police have reason to believe are criminals.

This rule first and foremost protects the privacy of innocent people (along with some guilty people whose guilt is not at all evident). But the rule does more than just protect privacy. It also directs the attention and energy of police officers where they should be directed - at crime (or, in the case at issue, at terrorism).

Imagine if police were to spend their time randomly looking through houses and apartments. They would not only be violating our privacy, but they would also be wasting their own time, which is a public commodity.

An unreasonable search, then, is one that invades privacy without a sufficient payoff for safety. And the blanket bag searches barred by Judge Sweet's injunction are precisely that.

Caveat: Judge Sweet Did Allow Some Searches To Go Forward

Especially given the scorn that has been heaped upon Judge Sweet's ruling, it is important to recall accurately what it did - and did not do.

Judge Sweet said first that "less intrusive searches, such as those involving magnetometers, do not fall within the scope of the injunction."

Furthermore, Judge Sweet made clear that even a blanket search of a more invasive nature would be permissible with a "showing of both a specific threat to public safety and an indication of how blanket searches could reduce that threat."

Judge Sweet has thus demanded that police act on the basis of facts, rather than unthinking and intrusive policies, an eminently sane demand.

It is accordingly a mistake to fume at the judge for failing to give the police carte blanche to invade privacy with no payoff. The citizens of New York should instead be thanking Judge Sweet for protecting their civil liberties as well as their safety -- by insisting that police do not sacrifice both for what is merely the illusion of security.


Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.

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