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MacWADE v. KELLY

December 7, 2005.

BRENDAN MacWADE, ANDREW SCHONEBAUM, JOSEPH GEHRING, JR., PARTHA BANERJEE, and NORMAN MURPHY, Plaintiffs,
v.
RAYMOND KELLY, Commissioner of the New York City Police Department; and THE CITY OF NEW YORK, Defendants.



The opinion of the court was delivered by: RICHARD BERMAN, District Judge

AMENDED DECISION AND ORDER*fn1

I. Introduction

New York City's random subway search program, which was begun on July 22, 2005 following terrorist bombings in London's subway system, is constitutional. The need for implementing counter-terrorism measures is indisputable, pressing, on-going, and evolving. The program adopted by the City of New York and challenged here (the "Container Inspection Program" or "Program") is not impermissibly intrusive and, according to credible experts schooled in these matters, it is also effective.*fn2 Of course, the use of suspicionless searches always must be examined carefully, and Plaintiffs have played an important (vigilant) role in this process. Based on the record in this case, including the bench trial conducted on October 31 and November 1, 2005, and for the reasons that follow, Plaintiffs' application for a permanent injunction against Police Commissioner Raymond Kelly and New York City is denied.

  II. Background

  On August 4, 2005, Brendan MacWade, Andrew Schonebaum, Joseph Gehring, Jr., Partha Banerjee, and Norman Murphy (collectively, "Plaintiffs"), represented by the New York Civil Liberties Union ("NYCLU"), filed a complaint ("Complaint") against Raymond Kelly ("Commissioner Kelly"), Commissioner of the New York City Police Department ("NYPD"), and the City of New York ("New York City" or "City") (collectively, "Defendants") alleging that Defendants' "policy and practice of searching those seeking to use the New York City subway system without any individualized suspicion of wrongdoing violates the Fourth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983." (Complaint ¶ 41.) Plaintiffs "seek a declaratory judgment and preliminary and permanent injunctive relief against further enforcement of the policy." (Id. ¶ 6.)

  Soon after filing their Complaint, Plaintiffs sought to obtain certain data and information by way of discovery from Defendants and, on or about August 12, 2005, Defendants moved for a protective order to shield from discovery documents and information relating to the frequency and location of subway searches. (See Defendants' Memorandum in Support of Application for Protective Order, dated August 12, 2005, at 3-4 ("The documents at issue fall squarely within" the law enforcement privilege, and "Plaintiffs cannot demonstrate sufficient need to overcome the privilege."); Plaintiffs' Memorandum Opposing Motion for Protective Order, dated August 15, 2005, at 1-2 ("defendants fail to explain adequately how disclosure . . . would imperil law enforcement procedures," and the information sought "is central to the issues in this case").) On August 18, 2005, United States Magistrate Judge Frank Maas, to whom discovery issues had been referred, found that the law enforcement privilege applied to the disputed documents and information but directed the City to release certain categories of information "for attorneys' eyes only." (See Discovery Order, dated August 18, 2005 ("August 18, 2005 Discovery Order"), at 9-10.) On August 26, 2005, after receiving objections to the Magistrate Judge's August 18, 2005 Discovery Order from Defendants and a response (including objections) from Plaintiffs and after reviewing the disputed materials in camera, the Court agreed that the law enforcement privilege applied but suspended the Magistrate Judge's August 18, 2005 Discovery Order pending an evidentiary hearing. (See Decision and Order Staying Further Document Production, dated August 26, 2005 ("August 26, 2005 Discovery Order"), at 7 ("[G]iven the sensitive nature of the material sought and Plaintiffs' unproven need for the information, the Court grants Defendants' motion to shield the disputed documents and information at this time. . . . If at the hearing it appears that the materials are needed and relevant, Plaintiffs may move to reopen the record. . . .").)

  On August 29, 2005, Plaintiffs voluntarily withdrew their application for a preliminary injunction and the case proceeded to a bench trial on the merits. (See Plaintiffs' Letter to the Court, dated August 29, 2005 ("we are withdrawing our pending request for a preliminary injunction so we can otherwise obtain the information" about the frequency of subway searches); Transcript of Proceedings, dated August 30, 3005, at 3 ("in light of [the Court's] ruling . . . we felt the information we're not going to be getting through discovery, we felt we needed to collect it on our own. . . . "[I]t could be done within several weeks."); see also Order, dated August 30, 2005.)*fn3

  The trial was held on October 31 and November 1, 2005.*fn4 During the trial, which included, inter alia, live cross and re-direct examination, the Court had an excellent opportunity to observe witness demeanor and assess witness credibility. (See Transcript of Proceedings, dated October 31 and November 1, 2005 ("Tr.").) Eight witnesses testified for Plaintiffs, including all five Plaintiffs, Maggie Gram ("Gram"), the NYCLU employee who helped to coordinate Plaintiffs' "monitors" survey of the subway search checkpoints, Gene Russianoff ("Russianoff"), a staff attorney for the New York Public Interest Research Group's Straphangers Campaign who testified in his individual capacity concerning the "design and operation of the New York City subway system," and Charles Pena ("Pena"), a policy analyst for The Tauri Group, who testified regarding the purported ineffectiveness of the Program.*fn5 Five witnesses testified for Defendants, including David Cohen ("Commissioner Cohen"), the NYPD's Deputy Commissioner for Intelligence and Michael Sheehan ("Commissioner Sheehan"), the NYPD's Deputy Commissioner for Counter-Terrorism, who both testified about, among other things, the terrorist threat to the New York City subway system and the effectiveness of the Container Inspection Program, Deputy Inspector Kerry Sweet ("Inspector Sweet"), the NYPD's Executive Officer of the Legal Bureau, who testified about the creation of the Program, Deputy Chief Owen Monaghan, the NYPD's Executive Officer of the Transit Bureau, who testified about the Program's implementation, and Termaine Garden, the Director of Customer Communications for the Department of Subways of the New York City Transit Authority, who testified about announcements of the Program in the subway system. The Court also received into evidence the deposition testimony of Richard A. Clarke ("Clarke"), Chairman of Good Harbor Consulting LLC and former Chair of the Counter-Terrorism Security Group on the National Security Council, pursuant to Federal Rule of Civil Procedure 32(a)(3)(B), (see Tr. at 8-9; see also Deposition of Richard Clarke, dated October 5, 2005 ("Clarke Dep."); Declaration of Richard A. Clarke, dated October 26, 2005), regarding the effectiveness of the Program.

  At the close of trial, Plaintiffs requested that Defendants' information concerning the frequency of inspection checkpoints be admitted into the record. (Tr. at 268-69, 277 (Plaintiffs' counsel stating "we renew our request that the city be required to produce to us and it be entered into the record the information about the percentage of entrances that have checkpoints at any given time"); see also id. at 278 (Defendants' counsel arguing "I don't know what it is plaintiffs think [the Court] can do with that number. . . . I don't see what [] relevance [] producing the number of stations has to the issues as they've now been framed by discovery and by the experts in the case.").) After having reviewed the information in camera on or about November 4, 2005, the Court, on November 7, 2005, admitted into the record under seal and for opposing counsel's "eyes only," the data compiled by Defendants as to the number and location of subway inspection checkpoints conducted between July 22 and November 6, 2005. (See Memorandum Endorsement, dated November 7, 2005.)*fn6

  The parties submitted post-trial memoranda of law and proposed findings of fact and conclusions of law on or about November 21, 2005, (see Plaintiffs' Post-Trial Memorandum of Law, dated November 18, 2005 ("Pls.' Mem."); Plaintiffs' Proposed Findings of Fact, dated November 18, 2005; Defendants' Post-Trial Memorandum of Law, dated November 21, 2005 ("Defs.' Mem."); Defendants' Post-Trial Proposed Findings of Fact and Conclusions of Law, dated November 21, 2005), and reply memoranda of law on November 29, 2005. (See Plaintiffs' Response to Defendants' Post-Trial Memorandum of Law (Amended), dated December 2, 2005 ("Pls.' Reply"); Defendants' Post-Trial Reply Memorandum of Law, dated November 29, 2005 ("Defs.' Reply").) Plaintiffs submitted (under seal) Plaintiffs' Post-Trial Memorandum Concerning Sealed Data About NYPD Checkpoints, dated November 18, 2005, and Plaintiffs' Post-Trial Findings Of Fact Concerning Sealed Data About NYPD Checkpoints, dated November 18, 2005. The parties also submitted designations and counter-designations of Commissioner Sheehan's deposition testimony, (see Corrected Plaintiffs' Designations of Testimony from Desposition of Michael Sheehan, dated November 3, 2005; Defendants' Counter Designations to Plaintiffs' Deposition Designations for Michael Sheehan), and a stipulation regarding Clarke's credentials. (See Stipulation, dated November 17, 2005 ("Clarke Stip."), ¶ 3 (noting Clarke had "acted as a senior White House Advisor to presidents Ronald Reagan, George H.W. Bush, William Clinton and George W. Bush on issues of intelligence and counter-terrorism.").) The Court heard closing arguments from the parties on December 2, 2005.

  * * *

  The following are the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

  III. Findings of Fact

  (i) New York City Subway System

  The New York City subway system operates twenty-four hours a day and includes twenty-six interconnected lines and 468 passenger stations. (Declaration of Gene Russianoff, dated October 25, 2005 ("Russianoff Decl."), ¶¶ 7, 9-10.) "Many of the [stations] have more than one entrance. . . ." (Id. ¶ 11.) People seeking access to the subway system must pass through a turnstile entrance by swiping a fare card or MetroCard. (Id. ¶ 8.) New York's is "the largest, most heavily used subway system in the United States." (Id. ¶ 5.)*fn7

  (ii) Threat of Terrorist Attack

  The risk of a terrorist bombing of New York City's subway system is real and substantial. (See Tr. at 170 (Commissioner Sheehan testifying that "About 40 to 50 percent around the world, depending on how you count terrorists acts, are directed against transportation systems traditionally, and in New York City, our subway system, in my view, is a prime target for terrorists.") Such an event could cause serious physical and economic injury, including loss of lives. (Declaration of Deputy Commissioner Michael Sheehan, dated October 25, 2005 ("Sheehan Decl."), ¶ 18.)

  Transportation systems are regarded as "attractive targets" because (i) "they carry large numbers of people at certain times of day and, if attacked, can produce high casualties;" (ii) "an attack has the potential to incapacitate all or a portion of the system" and cause service disruptions; (iii) such disruptions could have "widespread economic consequence[s];" and (iv) an attack could create "public fear and demoralization." (Sheehan Decl. ¶ 18; see also Tr. at 170, 181 ("I believe New York City is the number one target. . . .").) New York City's mass transit systems, including the subway system, have been targeted by terrorists in the past. (See Declaration of Deputy Commissioner David Cohen, dated October 25, 2005 ("Cohen Decl."), ¶¶ 19-21.)

  In 2004, terrorists bombed commuter trains in Madrid and the subway system in Moscow. See American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., Civil Action No. 04-11652, 2004 U.S. Dist. Lexis 14345, at *4 (D. Mass. July 28, 2004) (describing bombings "in Madrid on March 11, 2004, in which over 200 persons were killed, and one in Moscow on February 6, 2004, in which approximately forty persons were killed."). The bombings and attempted bombings in London's subway system, which occurred on July 7 and July 21, 2005, respectively, "raised the risk level for New York City's subway system" because (i) "they reaffirmed the shift to transportation systems as targets;" (ii) "they were carried out by individuals belonging to groups with links to similar groups operating in New York;" and (iii) "they were carried out notwithstanding a substantial security system which includes extensive video surveillance." (Sheehan Decl. ¶ 19.)*fn8

  (iii) Origin and Implementation of the Container Inspection Program

  Commissioner Kelly and Commissioner Sheehan discussed the possibility of instituting a random bag search program in the New York City subway system before the London bombings. (See Tr. at 187.) The London attacks in July 2005 "brought a tremendous refocus to the subway system," (Tr. at 187), and, in response, Commissioner Sheehan and Commissioner Cohen recommended to Commissioner Kelly that "container inspections be initiated on the City's subway system." (Sheehan Decl. ¶ 7; see also Cohen Decl. ¶ 23 ("The attack on the London subway system on July 7, 2005, and the second attempt on July 21, 2005, combined with previous threats to New York City's subways dictates the need to further strengthen our subway security posture. Commissioner Sheehan and I both believed that we required an additional tool to enhance our subway deterrence and jointly recommended to Commissioner Kelly that a container inspection program be implemented immediately.").) The Program was intended to address the threat of an explosive device being taken into the subway system in a carry-on container, as had occurred in Moscow, Madrid, and London. (Sheehan Decl. ¶ 21.) It was designed so that "[i]nspections would take place at all stations in the system on a predetermined but unpredictable [to the public] schedule." (Id. ¶ 23.)*fn9

  On July 21, 2005, Commissioner Kelly met with his executive staff to discuss "the need for increased security in New York City's subways." (Declaration of Kerry Sweet, dated October 25, 2005 ("Sweet Decl."), ¶ 3.) Commissioner Kelly, Commissioner Cohen, Commissioner Sheehan, Inspector Sweet, and the NYPD's Deputy Commissioner of Legal Matters, Andrew Schaffer, were present at the meeting. (See id. ¶ 3-4.)*fn10 A second meeting was held on July 21, 2005, "at which the outline of the Container Inspection Program was discussed." (Id. ¶ 5; see also Tr. at 128.) Inspector Sweet was asked at these meetings to create a draft operational procedure "which would take into account the requirements imposed on such a program by the Constitution." (Id. ¶ 4, 6.) With the aid of other members of the NYPD Legal Bureau, Inspector Sweet completed a draft operational procedure, and submitted it to Commissioner Kelly, who approved it on July 21, 2005. (Sweet Decl. ¶ 7.)

  The Container Inspection Program and procedures were communicated to all members of the NYPD on July 21, 2005 through the NYPD's internal communications system. (See Sweet Decl. ¶ 7; Finest Message, dated July 21, 2005, Sweet Decl. Ex. A ("Finest Message").) The Program went into effect on July 22, 2005, (Sweet Decl. ¶ 17), and it received widespread media coverage. (See, e.g., Sewell Chan & Kareem Fahim, New York Starts To Inspect Bags On The Subways, N.Y. Times, July 22, 2005, at A1, Sweet Decl. Ex. 1.)

  The Container Inspection Program's purpose, as set forth in the Finest Message, is to "increase deterrence and detection of potential terrorist activity and to give greater protection to the mass transit riding public. . . ." (Finest Message at 1; see also Tr. at 172 ("It is primarily deterrent but also detection.").) "At the commencement of the security checkpoint process, [a] supervisor will establish, in his/her activity log, the frequency of passengers subject to inspection (i.e. every fifth passenger, every twelfth passenger, every twentieth passenger, etc.)," based upon such factors as the volume of passengers at the station, the police personnel available to perform inspections, and the flow of commuter traffic into ...


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