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Soon after Gov. Kathy Hochul announced she would be deploying hundreds of members of the National Guard and state police to help conduct bag checks in the New York City subway system, questions began to emerge about how the plan would work.
How long will the National Guard be doing this? Is it 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 protection from unreasonable searches and seizures, a rider can decline a bag search if the police do not have a reasonable suspicion that the rider has done something illegal or is carrying a weapon.
On Thursday, Ms. Hochul made several appearances on news shows to explain the initiative. The National Guard and the state police, she said, would assist the city’s police officers as they checked bags for weapons in the “busiest” stations.
“This is not punitive,” she said during an interview on MSNBC. “This is more of a deterrent.”
But she also warned that riders who refuse to consent to bag checks would have 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’re not taking the subway.”
New York police have been checking bags randomly for nearly 20 years, under a program that began after a July 2005 attack in London in which terrorists detonated bombs on three Underground trains and on a bus, killing 52 people and injuring more than 700 others.
At the Port Authority subway station, the police will periodically pull people aside and check their bags, said Tom Harris, a former police inspector and president of the Times Square Alliance, a business group.
“I would look at this as any other transportation system check,” he said. “Look at the airport. No one is confused about being searched because they want a safe trip.”
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 the bag checks. A year later, the U.S. Court of Appeals for the Second Circuit ruled that the program constituted a “special need” exception to the Fourth Amendment because it could help prevent terrorist attacks.
Ms. Hochul’s plan, however, is not a counterterrorism measure, Mr. Dunn said.
Her plan is “a conventional crime-fighting strategy,” he said. “They can’t do searches like that without probable cause or a search warrant. That’s well established.”
Mr. Dunn argued that if the state could cite crime as a reason to conduct such searches in the subway, it could use the same justification to search the bags of people walking down the street.
He added that if a passenger’s bag were searched and found to contain something illegal, such as drugs, that person could be arrested, but could then contest the arrest on the grounds that he or she had felt pressured to consent to the search in order to enter the subway.
“Everyone will make their own decision about how important their principles or their privacy are to them,” Mr. Dunn said. “But when we start surrendering pieces of privacy like this, it is a very dangerous slope.”
When and where will the National Guard be present?
Some have questioned why the National Guard is being deployed when there is no clear terrorism threat and when crime is not surging on the trains.
But the troops have previously been used to patrol major transportation hubs in New York City. Guard members regularly patrol Grand Central Terminal, Pennsylvania Station and the Port Authority Bus Terminal. After the Oct. 7 attacks on Israel, they were sent to patrol the subway as officials watched for any threats.
Now, Guard members will be deployed at “main transit hubs” throughout the subway system in an effort to supplement the police presence, Ms. Hochul said on Fox 5 on Thursday. The reinforcements, which will include additional transit police, will be positioned “right near the turnstiles,” she said.
“We’re going to take some strong action,” she said. “There’s no search and frisk. There’s no stop and frisk. There’s no profiling. All this is a deterrent.”
The National Guard — operating in each of the country’s 50 states, its territories and the District of Columbia — is unique within the country’s military apparatus because soldiers typically report to governors.
The New York Army National Guard, with about 10,400 soldiers, is a federal reserve military 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 force 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, bring resources to communities devastated by the virus and later help staff vaccination clinics.
Recently, Ms. Hochul has deployed the state’s National Guard to assist with the city and state’s response to the migrant crisis. Through September, the state 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 their state or territory’s governor,” according to the Brennan Center for Justice, a nonpartisan think tank.
Unless the Guard members are called into federal service, they “are free to participate in law enforcement if doing so is consistent with state law,” the group said.
In a statement, the governor’s office said that the National Guard does not have jurisdiction 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 last?
Ms. Hochul has declined to say how long the deployment will last.
The goal is to help the police prevent violent crime on the subways, where there have been three homicides so far this year and several brutal assaults, including the nonfatal stabbing of a conductor last month and an attack Wednesday on a conductor who was struck with a glass bottle as she was pulling out of a station in the Bronx.
“I’m not going to tell the criminals the day I’m stopping this because then they’ll be back the next day,” Ms. Hochul said on MSNBC.
Riders Alliance, a transit 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 pay for 10 teams of mental health workers who would help people suffering a crisis on the subway. The perception of danger in the subway system has been driven in part by several high-profile episodes in which mentally ill homeless people attacked riders seemingly at random.
But Danny Pearlstein, a spokesman for Riders Alliance, asked: What is the permanent plan to help homeless people who sleep on subway cars at night?
“People suffering mental illness and people suffering homelessness are the most vulnerable on the subway because they’re always there,” he said.
Ellen Goldstein, a policy analyst who travels almost daily on the F train from Brooklyn to Times Square, said she does not worry much about her personal safety on the train.
Her concerns, she said, are centered on the “disorder” she sees in train cars: panhandlers, vendors — often migrants — trying to sell candy to riders, and people, sprawled out, sleeping on the seats.
“The subway is operating as a shelter,” Ms. Goldstein, 57, said. “I don’t think that checking people’s bags is really where we need resources.”
