Macwade v. Kelly

• Decision Date: 11 August 2006
• Docket Number: Docket No. 05-6754 CV.
• Citation: 460 F.3d 260
• Parties: Brendan MACWADE, Andrew Schonebaum, Joseph E. Gehring, Jr., Partha Banerjee, and Norman Murphy, Plaintiffs-Appellants, v. Raymond KELLY, Commissioner Of The New York City Police Department, and The City Of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

460 F.3d 260

Brendan MACWADE, Andrew Schonebaum, Joseph E. Gehring, Jr., Partha Banerjee, and Norman Murphy, Plaintiffs-Appellants, v. Raymond KELLY, Commissioner Of The New York City Police Department, and The City Of New York, Defendants-Appellees.

Docket No. 05-6754 CV.

United States Court of Appeals, Second Circuit.

Argued: May 1, 2006.

Decided: August 11, 2006.

COPYRIGHT MATERIAL OMITTED

Christopher Dunn, New York Civil Liberties Union Foundation (Arthur Eisenberg, Jeffrey Fogel, Corey Stoughton, and Donna Lieberman, on the brief), New York, NY, for Plaintiffs-Appellants.

Scott Shorr, Senior Counsel, Corporation Counsel of the City of New York (Michael A. Cardozo, Corporation Counsel of the City of New York, Barry P. Schwartz, on the brief), New York, NY, for Defendants-Appellees.

Michael J. Garcia, United States Attorney for the Southern District of New York, (Peter D. Keisler, Assistant Attorney General; Douglas N. Letter, Terrorism Litigation Counsel; Beth E. Goldman, Assistant United States Attorney; Sara L. Shudofsky, Assistant United States Attorney, on the brief), New York, NY, for Amicus Curiae United States of America.

Andrew T. Frankel, Simpson Thacher & Bartlett LLP; Daniel J. Popeo, Washington

Legal Foundation (Paul D. Kamenar; Bryce L. Friedman; Seth M. Kruglak on the brief), New York, NY, for Amici Curiae Washington Legal Foundation; Families of September 11, Inc.; Allied Educational Foundation; U.S. Representatives Peter T. King and Ginny Brown-Waite; New York State Senator Martin J. Golden; New York State Assemblymen Vincent M. Ignizio and Matthew Mirones; New York City Councilmember James S. Oddo; and Stephen M. Flatow.

Before NEWMAN and STRAUB, Circuit Judges, and BRIEANT, District Judge.^*

STRAUB, Circuit Judge.

We consider whether the government may employ random, suspicionless container searches in order to safeguard mass transportation facilities from terrorist attack. The precise issue before us is whether one such search regime, implemented on the New York City subway system, satisfies the special needs exception to the Fourth Amendment's usual requirement of individualized suspicion. We hold that it does.

Shortly after New York City implemented its search program, plaintiffs-appellants Brendan MacWade, Andrew Schonebaum, Joseph E. Gehring, Jr., Partha Banerjee, and Norman Murphy each attempted to enter the subway system. Each plaintiff either submitted to a baggage search and entered the subway or refused the search and consequently was required to exit the subway system. Disturbed by their treatment, they sued defendants-appellees New York City and Police Commissioner Raymond Kelly pursuant to 42 U.S.C. § 1983, asserting that the search regime violated the Fourth and Fourteenth Amendments. They sought a declaratory judgment, preliminary and permanent injunctive relief, and attorney's fees. After a two-day bench trial, the United States District Court for the Southern District of New York (Richard M. Berman, Judge) found the search program constitutional pursuant to the special needs exception and dismissed the complaint with prejudice. MacWade v. Kelly, 2005 WL 3338573 (S.D.N.Y. Dec. 7, 2005).

Plaintiffs timely appealed, raising three claims: (1) the special needs doctrine applies only in scenarios where the subject of a search possesses a diminished expectation of privacy, and because subway riders enjoy a full expectation of privacy in their bags, the District Court erred in applying the special needs exception here; (2) the District Court erred in finding that the search program serves a "special need" in the first instance; and (3) even if the search program serves a special need, the District Court erred in balancing the relevant factors because (a) the searches are intrusive; (b) there is no immediate terrorist threat; and (c) the City's evidence fails as a matter of law to establish that the Program is effective.

As set forth more fully below, we hold that the special needs doctrine may apply where, as here, the subject of a search possesses a full privacy expectation. Further, we hold that preventing a terrorist attack on the subway is a "special" need within the meaning of the doctrine. Finally, we hold that the search program is reasonable because it serves a paramount government interest and, under the circumstances, is narrowly tailored and sufficiently effective.

BACKGROUND

I. The Subway System and the Container Inspection Program

The New York City subway system is a singular component of America's urban infrastructure. The subway is an icon of the City's culture and history, an engine of its colossal economy, a subterranean repository of its art and music, and, most often, the place where millions of diverse New Yorkers and visitors stand elbow to elbow as they traverse the metropolis. Quantified, the subway system is staggering. It comprises 26 interconnected train lines and 468 far-flung passenger stations. It operates every hour of every day. On an average weekday, it carries more than 4.7 million passengers and, over the course of a year, it transports approximately 1.4 billion riders. By any measure, the New York City subway system is America's largest and busiest.

Given the subway's enclosed spaces, extraordinary passenger volume, and cultural and economic importance, it is unsurprising—and undisputed—that terrorists view it as a prime target. In fact, terrorists have targeted it before. In 1997, police uncovered a plot to bomb Brooklyn's Atlantic Avenue subway station—a massive commuter hub that joins 10 different subway lines and the Long Island Railroad. In 2004, police thwarted another plot to bomb the Herald Square subway station, which networks eight different subway lines in midtown Manhattan.

Other cities have not been so fortunate in protecting their mass transportation systems. In 2004, terrorists killed over 240 people by using concealed explosives to bomb commuter trains in Madrid and Moscow. On July 7, 2005, terrorists— again using concealed explosives—killed more than 56 people and wounded another 700 individuals by launching a coordinated series of attacks on the London subway and bus systems. Two weeks later, on July 21, 2005, terrorists launched a second but unsuccessful wave of concealed explosive attacks on the London subway system.

That same day, the New York City Police Department ("NYPD") announced the Container Inspection Program (the "Program") that is the subject of this litigation. The NYPD designed the Program chiefly to deter terrorists from carrying concealed explosives onto the subway system and, to a lesser extent, to uncover any such attempt. Pursuant to the Program, the NYPD establishes daily inspection checkpoints at selected subway facilities. A "checkpoint" consists of a group of uniformed police officers standing at a folding table near the row of turnstiles disgorging onto the train platform. At the table, officers search the bags of a portion of subway riders entering the station.

In order to enhance the Program's deterrent effect, the NYPD selects the checkpoint locations "in a deliberative manner that may appear random, undefined, and unpredictable." In addition to switching checkpoint locations, the NYPD also varies their number, staffing, and scheduling so that the "deployment patterns ... are constantly shifting." While striving to maintain the veneer of random deployment, the NYPD bases its decisions on a sophisticated host of criteria, such as fluctuations in passenger volume and threat level, overlapping coverage provided by its other counter-terrorism initiatives, and available manpower.

The officers assigned to each checkpoint give notice of the searches and make clear that they are voluntary. Close to their table they display a large poster notifying passengers that "backpacks and other containers [are] subject to inspection." The Metropolitan Transportation Authority which operates the subway system, makes similar audio announcements in subway stations and on trains. A supervising sergeant at the checkpoint announces through a bullhorn that all persons wishing to enter the station are subject to a container search and those wishing to avoid the search must leave the station. Although declining the search is not by itself a basis for arrest, the police may arrest anyone who refuses to be searched and later attempts to reenter the subway system with the uninspected container.

Officers exercise virtually no discretion in determining whom to search. The supervising sergeant establishes a selection rate, such as every fifth or tenth person, based upon considerations such as the number of officers and the passenger volume at that particular checkpoint. The officers then search individuals in accordance with the established rate only.

Once the officers select a person to search, they limit their search as to scope, method, and duration. As to scope, officers search only those containers large enough to carry an explosive device, which means, for example, that they may not inspect wallets and small purses. Further, once they identify a container of eligible size, they must limit their inspection "to what is minimally necessary to ensure that the ... item does not contain an explosive device," which they have been trained to recognize in various forms. They may not intentionally look for other contraband, although if officers incidentally discover such contraband, they may arrest the individual carrying it.¹ Officers may not attempt to read any written or printed material. Nor may they request or record a passenger's personal information, such as his name, address, or demographic data.

The preferred inspection method is to ask the passenger to open his bag and manipulate his possessions himself so that the officer may determine, on a purely visual basis, if the bag contains an explosive device. If necessary, the officer may open the container and manipulate its contents himself. Finally,...