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Court Nixes Request for Info on N.Y. Subway Searches

A federal judge has ruled that the New York Police Department can withhold from the public data it collected during the random searches of subway riders the city instituted in July.

U.S. District Judge Richard Berman issued a protective order for some of the disputed documents and information, noting the sensitive nature of the material and the plaintiffs' failure to show a need for it.

The court is expected to address discovery of the disputed documents again before ruling on the plaintiffs' claims that the subway search policy is unconstitutional because it subjects too many riders to suspicionless searches by police.

The defendants counter that they are entitled to shield the documents from discovery under the law-enforcement privilege, which allows police to withhold information about ongoing investigations, and that the plaintiffs cannot show the documents are so essential to their case that they can overcome that privilege.

The case arose when the city imposed the search policy after London's public transportation system was bombed July 7, killing more than 50 people. Also, bombs planted on three London subway trains and a bus failed to detonate July 21.

The complaint, filed in the U.S. District Court for the Southern District of New York by the New York Civil Liberties Union on behalf of five subway users, asserts that although the selection of riders to be searched purportedly is nondiscretionary, the large number of people using the subway system creates the potential for impermissible racial profiling by the NYPD in response to the volume.

The plaintiffs say they do not object to appropriate searches designed to target terrorist activities, but that widespread suspicionless searches violate the Fourth and 14th Amendments of the U.S. Constitution.

Ruling on the defendants' motion for a protective order, U.S. Magistrate Judge Frank Maas concluded that the city should release the following information:

The defendants objected to Judge Maas' discovery order on abuse-of-discretion grounds and the plaintiffs filed objections to, among other things, Judge Maas' limiting production to "sample" data.

After Judge Berman reviewed the disputed documents in camera and heard argument from the parties, he affirmed in part and reversed in part Judge Maas' order.

Judge Berman agreed with Judge Maas' finding that the law-enforcement privilege applies to the disputed documents and information. However, he declined to order further disclosure at this time for several reasons.

First, because the documents detail law enforcement techniques and procedures, Judge Maas should have conducted an in camera review of the information before ordering disclosure, he said.

Second, it is too early in the proceedings for Judge Maas to conclude the documents sought by the plaintiffs are relevant to whether the subway search program actually detects and deters terrorists, the judge said.

He explained that he wanted to hear from public officials and other experts who design such programs and suggested that the city may be able to show that the searches deter terrorism precisely because they are random.

Finally, Judge Berman concluded that the plaintiffs had not shown a "substantial need" for disclosure of the disputed material at this time, and there is a significant potential danger to the search program and other law enforcement procedures if the documents were released too soon.

In staying document production and granting the defendants' motion for a protective order, Judge Berman did not rule out allowing additional disclosure if the situation warranted.