Programming Note

A Special Need, Indeed, Part 2

One of my first posts on this blog was regarding a New York federal district court decision that allowed the random searches of the belongings of subway patrons based on the special needs doctrine.  As I'd explained in my earlier post:

The judge based his decision on the "special needs" doctrine, which was originally intended to support searches in situations that were beyond the need for normal law enforcement.  Historically, if the special needs doctrine applied, searches could be conducted based upon less than probable cause, but only in certain carefully chosen regulatory (as opposed to law enforcement) contexts, as long as the purpose of the search did not include apprehension of one guilty of criminal conduct.  The situations in which the doctrine has been held to apply have been expanded by the courts in recent years.

I'm extremely disappointed to report that that decision has been upheld by the Second Circuit, in a decision which can be found here.  In upholding the lower court's decision, the Court stated:

(T)he 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.

I think we're headed down a slippery slope here--all in the name of "terrorism".  Talk about judicial activism!  The definition of "special need" is being rapidly expanded by the courts, and soon, virtually any governmental intrusion that's alleged to be necessary to combat "terrorism" will be constitutionally permissible, regardless of how ineffective or invasive that it is. 

This certainly doesn't feel like the America that I know and love.


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But wasn't the "special need" in that case created by specific information about a possible terrorist attack in the NYC Subways? Similar to the one that had JUST been carried out in the London transit system? And the Spanish rail system the year before?

(I realize air travel is a different scenario, public v. private and what not) but would you also argue that the increased airport security restrictions rolled out in the past week are symtoms of this same "slippery slope"?

If not, why not? Be specific.

If you think that the recent air restrictions ARE symtoms of this slippery slope you speak of, how would you suggest that law enforcement react to such information (of possible attacks)? Be specific, please.


For some reason, this feels a lot like a law school exam. I As a result, I'm going to need some time to formulate a response. Am I allowed to consult outside materials, or must I rely soley upon that which I already know? And, is there a time limit?

In all seriousness, I'm thinking about it and will reply soon;)


Wdegraw--in my mind, from a philosophical standpoint (as opposed to legal analysis)the problem with these searches is that they're knee jerk reactions (done for show) to a non-specific threat. I don't think that the searches would likely result in the interruption of a terror plot, nor do I think that they serve the purpose of deterring a plot.

Since the subway searches are not based on specific threats, but rather are based on a perceived risk of a general threat, the searches are too broad in scope and affect too many innocent citizens on a daily basis.

It there was intelligence re: a specific threat, that would be one thing. Alternatively, I don't think I'd have a problem if the fed. gov't set up a system similar to that used at airports that was run by fed. employees wherein *everyone* was subjected to a search and was required to walk through a metal detector prior to entering the subway.

In my mind, that's the only feasible way to effectively deter and prevent terroristic activities. Would it slow down the subway system to a grinding halt? You betcha!

As it stands, a law enforcement agency that is charged with fighting *all* crime is "randomly" searching subway patrons and finding all sorts of good stuff that they would normally never have legally had access to. It just doesn't sit right with me, when the benefits (minimal in my view) are weighed against the infringement of rights (high).

As for the question re: airport security, that's also a knee jerk reaction and ineffective, IMO. While I unerstand the rational behind the restrictions, they're still pretty ineffectual. Especially since most cargo is not even screened. Who knows what's in the luggage underneath the plane.

And, just as an example of how ineffective the airport screening is, my brother was travelling from India on the day of the arrests in Britain and the following exchange occurred in an airport in Milan (from my brother's blog about his trip):

I was stopped at a security checkpoint because of a letter opener (given to me as a gift) that was seen in my bag via x-ray. The following is the conversation that happened:

Me: I know what you want...........(I took out the letter opener from the bag).

Security Agent: Sir, this is a forbidden item.

Me: I know. I got it as a gift, isn't it nice? I had nowhere else to put it.

Security Agent: Sir, this is a forbidden item. You will need to dispose of it.

Me: Um, OK.

Security Agent: Sir, where are you going?

Me: America.

Security Agent: Where?


Security Agent: OK, you can keep it and you may go now.

Me: Um, thanks.


Ok then. *That* was effective. I realize that occurred in Italy, but nonetheless, my brother flew into the US on a flight full of Americans with a letter opener in his carry on. Who knows what his fellow passengers had in their possession.

My point is (I know I've rambled) that there's really no way short of full body and cavity searches of everyone to ensure that people don't bring something onto a plane or into the subway that can be used to hurt others.

I'll only be satisfied with searches and infringements upon citizen's rights if there is a reasonable likelihood of deterrance and prevention as a result. Otherwise, it's just not worth it to me.

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