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The views expressed by contributors are their own and not the view of The Hill


SECURITY THEATER INSTEAD OF SAFETY: NEW YORK’S MILITARIZED SUBWAY CHECKPOINTS
ARE A POLITICAL SCAM 

by Mark Miller and Daniel Woislaw, opinion contributors - 04/26/24 12:00 PM ET

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by Mark Miller and Daniel Woislaw, opinion contributors - 04/26/24 12:00 PM ET

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Getty Images
NEW YORK, UNITED STATES – MARCH 07: Members of the National Guard patrol at the
subway station in New York, US, on March 6, 2024. New York Governor Kathy Hochul
is deploying 750 National Guard officers into New York City’s subway system
after a rash of violent incidents has reignited fresh concerns about safety on
the biggest US transit network. Their mission is to collaborate with the State
Police in supporting the New York Police Department officers in conducting
thorough bag checks within the subway system. This move comes in light of a
surge in attacks targeting both passengers and subway workers over the past few
months. (Photo by Selcuk Acar/Anadolu via Getty Images)

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. 

Tags checkpoints Crime Ed Koch Fourth Amendment Kathy Hochul National Guard New
York City security theater Subway unconstitutional

--------------------------------------------------------------------------------

Copyright 2024 Nexstar Media Inc. All rights reserved. This material may not be
published, broadcast, rewritten, or redistributed.

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