Should you let the National Guard search your bag on the subway?

Shortly after Governor Kathy Hochul announced she would deploy hundreds of National Guard and State Police members to help conduct bag checks on the New York City subway system, questions began to arise about how the plan would work.

How long will the National Guard do this? Is there a violation of rights? What happens if you refuse to have your bag checked?

Here are some answers to those questions:

Can you say no to a bag check?

Yes. Under the Fourth Amendment, which guarantees the right to be protected from unreasonable searches and seizures, a rider can refuse a bag search if police do not have reasonable suspicion that the rider has done something illegal or is carrying a weapon.

On Thursday, Ms. Hochul appeared several times on news shows to explain the initiative. The National Guard and state police, she said, would assist city police officers in checking bags for weapons at the “busiest” stations.

‘This is not a punishment’ she said during an interview on MSNBC. “This is more of a deterrent.”

But she also warned that passengers who refuse to consent to baggage checks would be forced to leave the system.

“Go home,” Ms. Hochul said on Fox 5 New York. ‘We’re not going to search you. You can say no, but you don’t take the subway.”

New York police have been randomly checking bags for nearly two decades, under a program that began after a July 2005 attack in London in which terrorists detonated bombs on three subway trains and a bus, killing 52 people arrived and more than 700 others were injured.

At the Port Authority subway station, police occasionally pull people aside to check their bags, said Tom Harris, a former police inspector and chairman of the Times Square Alliance, a business group.

“I would consider this like any other control on the transportation system,” he said. “Look at the airport. No one is confused about being searched because he or she wants a safe journey.”

But Chris Dunn, the legal director of the New York Civil Liberties Union, said he did not believe it was legal to make submitting to a bag search a condition of riding the subway.

The organization sued the city in 2005 to stop bag checks. A year later, the U.S. Court of Appeals for the Second Circuit ruled that the program was an exception to the Fourth Amendment because it could help prevent terrorist attacks.

However, Ms. Hochul’s plan is not a measure against terrorism, Mr. Dunn said.

Her plan is “a conventional crime-fighting strategy,” he said. “They can’t do these types of searches without probable cause or a search warrant. That is well established.”

Mr. Dunn argued that if the state could cite crime as a reason to conduct such subway searches, it could use the same justification to search the bags of people walking down the street.

He added that if a passenger’s bag was searched and found to contain something illegal, such as drugs, that person could be arrested but could then challenge the arrest on the grounds that he or she felt pressured felt to consent to the search. enter the subway.

“Everyone will make their own decision about how important their principles or their privacy is to them,” Mr Dunn said. “But if we start giving up bits of privacy in this way, it’s a very dangerous slope.”

When and where will the National Guard be present?

Some have wondered why the National Guard is being deployed if there is no clear threat of terrorism and if crime on trains is not increasing.

But the troops have previously been used to patrol major transportation hubs in New York City. Security guards regularly patrol Grand Central Terminal, Pennsylvania Station and the Port Authority Bus Terminal. After the October 7 attacks on Israel, they were sent to patrol the subway while officials watched for any threats.

Now, Guard members will be deployed to “key transit hubs” throughout the subway system in an effort to supplement police presence, Ms. Hochul further said. Fox 5 on Thursday. The reinforcements, including additional transit police, will be placed “close to the turnstiles,” she said.

“We are going to take strong action,” she said. ‘There is no search and frisking. There is no stop and frisk. There is no profiling. All this is a deterrent.”

The National Guard — operating in each of the nation’s 50 states, territories and the District of Columbia — is unique within the nation’s military because soldiers typically report to governors.

The New York Army National Guard, with approximately 10,400 soldiers, is a federal reserve force that reports to the governor when not federally mobilized. It is part of the New York State Division of Military and Naval Affairs, which has a total of nearly 20,000 personnel. according to the state.

Guard members can be deployed by governors in many different capacities. At the start of the coronavirus pandemic, National Guard members were deployed across the country to help check temperatures, provide resources to communities devastated by the virus and later to help staff vaccination clinics.

Recently, Ms. Hochul deployed the state National Guard to assist with the city and state response to the migrant crisis. Until September the The state has deployed about 2,000 Guard members to support migrant shelters across the state, including by staffing hotels and emergency response centers in New York City.

The Posse Comitatus Act, passed in 1878, prohibits the use of the army or air force as a domestic police force in most circumstances. However, members of the National Guard are “rarely covered by the Posse Comitatus Act because they usually report to the governor of their state or territory.” according to the Brennan Center for Justicean impartial think tank.

Unless Guard members are called into federal service, they are “free to participate in law enforcement as consistent with state law,” the group said.

In a statement, the governor’s office said the National Guard has no authority to make arrests, but that if there were an “imminent threat,” Guard members could assist law enforcement in detaining a suspect.

Is this the right strategy? How long will it stay that way?

Ms Hochul would not say how long the deployment would last.

The aim is to help police prevent violent crime on the subway, where there have been three murders so far this year and several brutal attacks, including the non-fatal stabbing of a conductor last month and an attack Wednesday on a conductor who was hit with a glass bottle as she left a station in the Bronx.

“I’m not going to tell the criminals the day I stop doing this because they’ll be back the next day,” Ms. Hochul said on MSNBC.

Riders Alliance, a public transportation advocacy group, questioned the strategy of placing more armed personnel at stations.

The deployment is part of a five-point plan that would also provide $20 million to fund 10 teams of mental health workers who would help people in crisis in the metro. The perception of danger in the subway system has been inspired in part by several high-profile episodes in which mentally ill homeless people apparently attacked passengers at random.

But Danny Pearlstein, a spokesman for Riders Alliance, asked: What is the standing plan to help homeless people sleeping in subway cars at night?

“People with mental illness and people who are homeless are the most vulnerable in the metro because they are always there,” he said.

Ellen Goldstein, a policy analyst who rides the F train from Brooklyn to Times Square almost every day, said she doesn’t worry much about her personal safety on the train.

Her concerns, she said, are centered on the “disorder” she sees in train cars: beggars, vendors — often migrants — trying to sell candy to passengers, and people sprawled out on the seats, sleeping.

“The subway acts as a shelter,” Ms. Goldstein, 57, said. “I don’t think checking people’s bags is really where we need resources.”