Why is the National Guard Occupying NYC Subways?

-- By ShianneWilliams

Introduction

In March of this year, Governor Kathy Hochul of New York announced that she would deploy hundreds of National Guard members, state police, and Metropolitan Transportation Authority officers into the City's busiest subways. This move was merely step one of Hochul's "five-point plan" for "deterring crime" and making New Yorkers feel more safe on the subway. However, in a nation deeply affected by instances of police brutality and a pervasive sense of distrust towards law enforcement, it is unsurprising that many individuals do not perceive this legally questionable decision by the governor as a means of increasing safety.

How can she do this (legally)?

One of the main questions surrounding Hochul's deployment of the National Guard in the subways pertains to its legality. Does she have the authority to call in the National Guard? Doesn't the Fourth Amendment protect against these kinds of unprompted searches? As with many other legal issues, the answer to these questions depends on several factors.

The National Guard is a branch of the US military that serves both federal and state governments. The federal government can utilize the National Guard under the Insurrection Act, Title 10 of the US Code, as happened during the 1992 Los Angeles riots. At the state level, Governors have the authority to use the National Guard when responding to domestic emergencies. In other words, Governors can call on the National Guard to address a range of issues, from natural disasters to “civil unrest.” For example, during Hurricane Katrina in 2005, Louisiana’s governor deployed the National Guard to assist the disaster response and provide aid. Conversely, following the protests against systematic racism and police brutality in 2020, several Governors deployed the National Guard to "restore order” in their respective cities.

Furthermore, the United States Supreme Court has ruled that checkpoint searches are not inherently unconstitutional. More specifically, in Michigan v. Sitz, the Court held that police sobriety checkpoints aimed at combating drunk driving do not violate the 4th Amendment’s protection against unreasonable searches and seizures.

Butt these aren't checkpoint searches, and you haven't explained what the actual orders to the Guard are.

The Court reasoned that the state's interest in preventing drunk driving was substantial and that the effectiveness of the checkpoints in achieving this goal justified the intrusion on an individual's privacy. After employing a balancing test weighing the state's interest and effectiveness of the checkpoints against the degree of intrusion, the Court ultimately found that the checkpoints were constitutional.

However, in City of Indianapolis v. Edwards, SCOTUS clarified that these checkpoint searches cannot be used for general crime control. In a 6-3 decision, the Court held that roadblocks established for the sole purpose of detecting illegal narcotics were unconstitutional under the 4th Amendment. The Court explained that the relationship between these roadblocks and public safety concerns was too attenuated to be constitutionally permissible. This case emphasized that any kind of checkpoint searches must be closely tied to immediate public safety concerns rather than general law enforcement crime deterrence objectives.

Potential Challenges

1. Stated purpose of the checkpoints is unconstitutional.

The lack of clarity surrounding the subway checkpoints' stated purpose raises serious doubts about the constitutionality of this decision. While Hochul has stated that the checkpoints are for New Yorkers' safety, she has also suggested that they will help deter crime. Although seemingly connected, these justifications raise distinct legal implications. Removing "criminals" from the subway does not inherently correlate with the safety of other subway riders. For example, if someone were carrying illegal drugs through the subway, although classified as a criminal, their actions may not directly harm other passengers. Given the discrepancies in Governor Hochul’s stated reasons for the subway checkpoints, there could be potential legal challenges through this route. Someone stopped and searched by the National Guard and charged with a crime could raise a legitimate claim against the checkpoints for violating their 4th Amendment rights.

2. Procedure at checkpoints is unconstitutional.

While the checkpoints have only been in operation for a relatively short period, data regarding who is being stopped, what is being ceased from the bag searches, and the overall adherence to checkpoint protocols would raise further legal questions. The collection and analysis of such data are essential for evaluating the constitutionality and effectiveness of the deployment, ensuring that it remains within the bounds of the law while addressing legitimate safety concerns. Without citing any evidence, Hochul stated that additional security has been a success, pointing to NYPD data showing a 5% decrease in transit crimes compared to last April and announcing plans to reveal further statistics "very shortly."

Additionally, transparency regarding the criteria for stopping individuals and the procedures followed during bag searches is crucial for maintaining accountability in law enforcement activities and identifying other potential claims. Any discrepancies or patterns of disproportionate targeting could prompt legal challenges based on principles of equal protection and Fourth Amendment rights.

3. Use of the National Guard violates the Posse Comitatus Act.

Lastly, the Posse Comitatus Act prohibits the use of federal military forces to enforce domestic policies within the United States except when specifically authorized by the Constitution or Congress. While the National Guard operates under the authority of state governors when not federalized, concerns may arise if their role in law enforcement blurs the lines set by this act. The deployment of the National Guard in civilian contexts is subject to scrutiny to ensure it does not overstep into areas traditionally managed by local law enforcement. While state activation of the National Guard for disaster relief and emergency response is well-established, using them in routine law enforcement roles, such as subway bag checks, could be legally contentious if perceived as an overreach.

This is where clear statutory analysis was required. Why no reference to statements by relevant civil liberties groups in NY? What's the history of such uses of the Guard in NYC?

Conclusion

While ostensibly aimed at enhancing public safety, Hochul's deployment of the National Guard raises serious concerns regarding its legality and potential for unintended consequences. The intersection of state emergency powers, constitutional protections under the Fourth Amendment, and federal statutes like the Posse Comitatus Act create a unique legal landscape that has the potential for scrutiny and 4th Amendment challenges. The deployment must be clearly justified as necessary for immediate public safety, with strict adherence to protocols and transparency to prevent abuses of power and ensure compliance with the law.

What's the conclusion here, really?

A good first draft. There's way more that you can do in unearthing the law, and perhaps even in explicating the legal history.

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