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  • Davis Hayman

What’s in my bag?: N.Y. Governor authorizes National Guard in the subway to deter crime

In March 2024, N.Y. Governor Kathy Hochul authorized 1,000 members of the National Guard and State Police to patrol the New York City transit system, with the main goal of keeping weapons out of the subway. This new program introduces 750 New York National Guard members and 250 State Police scattered across the transit system. These patrols are now authorized to perform bag checks, among other things. 


This new initiative is a direct response to a spike in crime at the beginning of the year. Police data shows that major crimes in the subway system spiked 45% in January 2024 compared to the same time last year. Another prong of the governor’s program is introducing 10 mental health teams to respond to mental health emergencies within the transit system and provide patrons access to treatment and social services. 


The safety of the Metropolitan Transportation Authority workers is at the forefront of this initiative, and its supporters cite increased violence on the Subway as the justification for the program.  However, other responses to the new initiative are lukewarm at best. The Transport Workers Union criticized the plan for being only a temporary solution to recidivism and doing little to combat the underlying issues of homelessness and mental health crises. Critics of the initiative go further, claiming the increased police presence will have the opposite effect—the increased perception of crime will make riders feel less safe, impacting a rider base still below the pandemic level. 


Quickly following the program's announcement, questions and challenges emerged concerning the Constitutionality of the bag checks. Technically, under the Fourth Amendment, riders have the right to say no to a bag check on the subway as long as the police do not have a reasonable suspicion that they have not broken the law nor are carrying a weapon. However, if a rider does not consent to the search, they will not be permitted to continue their journey within the transit system. 


Police have been allowed to search bags on the New York City subway since 2005 when a Second Circuit Court ruled that safety within public transit constituted a “special exception” to the Fourth Amendment in light of increases in terrorism. Ultimately, the constitutionality of such searches comes down to the motivation behind the search. The Supreme Court has held that roadblocks and checkpoints do not violate the Fourth Amendment if they exist to further a legitimate state interest (e.g., border security or combating drunk driving). However, the Supreme Court has articulated that checkpoints as general crime deterrents or to gather evidence of regular criminal wrongdoing do not meet this scrutiny standard and would be unconstitutional. 


Therefore, the program’s validity within the scope of the Fourth Amendment hinges on its goal: crime deterrence or the safety of M.T.A. patrons. Gov. Hochul and NYC Mayor Eric Adams have cited both goals for the increase in police checks, leaving the legal standing of this program in an area of uncertainty.  


Under the pressure from these constitutional questions and, the criticism from transit workers and advocates for residents, the future of this program is unknown. Legal challenges have yet to manifest. Data has yet to show a real effect on crime within the M.T.A. sphere, and New Yorkers are equally unsure of the initiative. Only time will tell how this mixed bag will shake out.


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