Many thanks to Dan and company for inviting me to chime in here for a couple of weeks. I had the pleasure of meeting Dan, Ethan and several other contributors to this blog at the AALS new law profs conference a couple of months ago, and as a newly-minted law prof, I can say that this blog has become regular reading for me. I’m honored to be here.
I recently left New York City and dearly miss taking the subway everyday—well, maybe not the F Train on weekends—and so I have paid close attention the ongoing discussions about the NYC subway searches. What particularly has intrigued me is the challenge that these and similar preventive terrorism investigations present to every-day notions of U.S. criminal justice, both conceptually and doctrinally. Much of the conversation in this area so far had concerned government action that I think has struck many people, accurately or inaccurately, as far from home—military detentions and tribunals, FISA warrants, the Patriot Act and the like. Routine searches of big-city commuters, by contrast, are a real-world change to daily American life that will require some revision of our notion of acceptable levels of police-citizen interaction. This revision does not strike me as simple or minimal.
What really perplexes me, however, is some people’s almost violent reaction to any effort to test the government’s expansion of its powers in the name of protecting the citizenry. The ACLU has become a favorite target for this vitriol. Eugene Volokh thankfully spent some recent blog time defending the right of the ACLU to challenge the NYC subway searches. As Professor Volokh noted in one of his posts, the NYC subway searches raise difficult Fourth Amendment questions, as they do not appear to fit neatly into any existing category of permissible police action. See also S. Chan and K. Fahim, Legal Issues Being Raised on Searches in Subways, NY Times 07/24/05, §1. I recently read the complaint that the ACLU filed in the Southern District, and it is an eminently reasonable, non-frivolous legal claim.
Now, don’t get me wrong: I suspect that some rationale will be adopted to justify these searches, at least in some form. Perhaps they will be viewed as a reasonable extension of airport security or other suspicionless checkpoints, as Professor Volokh suggested. Justice Ginsburg and Souter’s dissents in Illinois v. Caballes may shed some further light on how courts should respond to these searches. But, I just can’t imagine why people would jump up and down about the ACLU challenging these searches. At the very least, the challenge ensures that we have thought about why we want to allow these wholly suspicionless searches under our constitutional scheme, and also that we have limited them to avoid abuse.
But the NYC subway searches do get me thinking: How much may a community’s shared willingness to accept expansive police action inform our Fourth Amendment? Do the unique community harms of terrorism and the preventive focus of anti-terrorism police work warrant a larger role for this democratic norm in Fourth Amendment jurisprudence? The concept of “community burden sharing” already has been advanced by scholars such as Tracey Meares and Dan Kahan as a factor that courts sometimes should weigh in assessing the constitutionality of police action. Perhaps it has special force here. Such a consideration, however, highlights the importance of Ekow Yankah’s thoughtful post here several weeks ago about racial profiling. For, we surely cannot justify expansive police action as a communally shared burden if we then burden discrete minorities within our community more severely than everyone else.
These scattered musings merely scratch the surface, of course, and I have no ready solutions for the many hard questions that terrorism raises for our system of criminal justice. But, I would love to share ideas about them here over the next couple of weeks.
Posted by Brooks Holland on August 15, 2005 at 10:45 AM