During his colorful tenure as mayor of New York City, Ed Koch often rode the subway and asked his fellow straphangers, “How’m I doin’?” If only Gov. Kathy Hochul would do the same. It wouldn’t take more than one or two brief trips to learn that her new militarized checkpoint scheme for the subway is not only burdensome and unpopular but patently unconstitutional.
Last month, Hochul implemented her plan to address the increasing public perception that crime on New York’s subways has gotten out of hand. But the governor didn’t seek to arrest and lock up the criminals. No, that would make too much sense. Rather, she deployed the National Guard to the busiest, but not necessarily most dangerous, subway stations.
Under the watchful gaze of the military, the police search innocent passengers’ bags as a condition of entry to the subway. Passengers must open their bags for the probing fingers and eyeballs of police and soldiers alike. Those who refuse the searches are denied access to the most essential public transportation system in New York.
As if that weren’t bad enough, Hochul concedes that her strategy won’t catch criminals. Catching criminals isn’t even the point. Instead, she told MSNBC’s “Morning Joe” that she deployed the military in the subways while police search innocent commuters so that people “feel safe.”
To hear her tell it, the subways are already safe, but people need to see the military to feel safe. That’s why National Guard troops are deployed to the highest-trafficked spots in town instead of areas where recent shootings have occurred.
This is nothing more than “security theater.” It looks like people are being protected — but they’re not. Meanwhile, in just the few weeks since the unconstitutional checkpoints were established, violent crimes have been caught on video all over the city’s subways.
Gov. Hochul is violating countless New Yorker’s constitutional rights every day, all for the illusion of safety.
The Fourth Amendment protects the fundamental right against unreasonable searches of persons and their property. For this reason, all searches that take place without a warrant are unconstitutional. For that reason alone, Hochul starts behind the eight ball with her scheme.
To be sure, the governor can try to justify the illegal checkpoints by relying on 20-year-old case law decided in the wake of the 9/11 attacks that approved police searches on the subway for terrorists and their bombs. But, as Hochul has made clear, preventing terrorist attacks is not the point. It’s about appearances.
The courts have said, over and over, that the fact that criminals commit crimes does not give the state authority to ignore the Constitution in trying to catch them. Instead, warrantless and suspicionless searches for evidence of everyday crime is unequivocally unconstitutional. If security doesn’t justify ignoring the Fourth Amendment, then security theatre surely doesn’t.
But if Gov. Hochul had her way, and safety alone were a sufficient basis for allowing suspicionless checkpoints, there would be no constitutional constraint on placing a military at the entrance to every city neighborhood in the name of safety — or perhaps even only certain neighborhoods, those with residents who don’t like the incumbent governor, police chief, or city council, for example. This might fly in other parts of the world, but America is not a police state.
Ben Franklin famously said “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Here, Hochul is willing to give away essential liberty not even for safety but rather for the mere appearance of safety. That is a strange and unconstitutional bargain to strike.
Mayor Koch used to call himself “a liberal with sanity.” Gov. Hochul, with all due respect, you’re no Ed Koch. If you want subway riders to feel safe, start by protecting their constitutional rights and focus on catching actual criminals.
Mark Miller and Daniel Woislaw are attorneys at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach and abuse.
Copyright 2024 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
