Bag searches are coming back to the subway; what are your rights?

If you had any concerns about the recent uptick in subway crimes, the mayor and governor have a message for you: never fear, jumpy kids from upstate with long guns are on their way to help. 

A recent spate of subway crime has grabbed headlines, including a subway conductor who was slashed across the throat last week, a shooting on a 3 train in January and gunfire that broke out on a Bronx platform last month, killing one and injuring five. The gnarly incidents have caused some unease among subway riders, and at least one protest from transit workers, even as crime data show the overall safety of the system has improved in recent years. 

What’s behind the recent uptick in violent incidents (other than general societal breakdown) is unclear, but what is clear is we’re about to get the best solution our politicians can think of: more security theater! This round of theater will feature familiar faces — bored NYPD officers “randomly” checking bags at major subway stations — and some new cast members sure to make a splash: hundreds of National Guard troops from around the state, shipped in to help, with rifles and camo in tow.

On Tuesday, Mayor Eric Adams announced he was taking action on the uptick in violence on the subways in his favorite way: throwing some cops at the problem. After already sending 1,000 officers into the system in February, this week he announced plans to institute bag checks at 136 subway stations across the city. Then on Wednesday, Gov. Kathy Hochul — always eager to jump on the bandwagon of calling New York City a seething crime pit — announced she is also sending 750 National Guard members and 250 state and MTA police officers to the city to help with the bag checks. 

That’s a lot of cops and armed troops in a system that already sets up clashes between riders and law enforcement over something as small as turnstile hopping. It’s one thing when it’s an NYPD officer idly poking through your bag; it’s another when it’s a National Guard kid from Elmira who has never had a MetroCard in his life. It’s unfortunately easy to think back to Daniel Penny, the Marine who killed Jordan Neely on a subway train last year, confronting the subway performer over outbursts most regular subway riders just ignored.

Bag checks on the subway have been common in spurts since 2005 following the London Underground bombings. But their record of success in deterring crime is unclear. This latest roll out will also focus on checking bags at major transit hubs — usually only a few spots in the vast, 472-station system with many points of entry. (Some local gun owners are already talking about how to get around the searches too, how fun). 

Hochul also announced a $20 million investment to pay for 10 teams of mental health workers who would help people on the subway, a sum that will be a fraction of the amount spent on added security in the system. She also wants to ban people convicted of assault from using the subway for three years.

“I’ve heard very little evidence of the NYPD actually finding explosives and stopping violence from happening when using this program,” Janos Marton, a former civil rights lawyer with the ACLU, told The Groove. “And given the NYPD”s tendency to brag on itself you’d think if this was actually a successful program, they would have touted their success.” 

Successful or not, you should be prepared to meet bag checkers at at least some spots in the system until this latest run of security theater ends, and know your rights.

Your rights when police ask to check your bag in the subway 

You never ever have to consent to a bag search on the subway. If confronted with one, you can turn around and leave the station without giving a reason. Just hit da bricks! Cops are only supposed to search you before the turnstiles, not on trains or platforms. 

Marton said you could have any number of reasons for doing this: you might, say, have fragile items in your bag you don’t want manhandled, or personal things that would scandalize the poor sweet National Guard boy. But you don’t have to give a reason at all, he said. 

“You can walk right out of the subway station and go across the street and walk in a different entrance that doesn't have bag inspection, if that’s what you want to do,” he said. 

Marton, who said he’s personally been flustered by getting searched in subway stations, adds a reminder that someo cops have short tempers and little sense of humor. 

“Escalating a conversation can give officers more subjective feeling that they should be stopping and questioning you,” he said. 

Subway train car announcements will repeatedly remind you that your backpack and large bag may be subject to random search; but that only applies to entering the train system. Anyone attempting to search your bag on the platform or train itself isn’t giving you the option to decline the search and leave, and therefore the search would be in violation of your Fourth Amendment rights, civil rights attorney David B. Rankin told The Groove. 

“The whole reason the bag search program was declared constitutional is that there is a choice involved,” he said. “That choice is of course leaving the subway system.”

Officers are supposed to be searching by an algorithm, such as stopping every 25th person with a bag large enough to carry a weapon or explosive. They’re also supposed to be looking for those things only, not poking around in your glasses case or whatnot, Marton said. (Part of the recent uptick in crime is from larcenies and pickpockets, not exactly something a bag check can prevent). 

“It’s not the same as if you’re going to rave,” he said. “It’s supposed to be bombs or large weapons. They’re very explicitly not supposed to be looking for drugs.” 

If an officer isn’t following the law, get their shield number — they’re required to give it to you — and file a complaint with the Civilian Complaint Review Board. 

Civil liberties advocates didn’t like much about the subway troop surge, or Hochul’s plan overall. 

“This is another unfortunate example of policymaking through overreaction and overreach, the New York Civil Liberties Union said in a statement. “These heavy-handed approaches will, like stop-and-frisk, be used to accost and profile Black and Brown New Yorkers, ripping a page straight out of the Giuliani playbook. Today’s announcement fails to address longstanding problems of homelessness, poverty, or access to mental health care.”

The cost of the surge in authorities in the subways is unclear so far, but it won’t be cheap. Marton said maybe the bag checks are a better use of NYPD officers’ time than playing Candy Crush on their phones all day, but the presence of the National Guard is the more worrying situation. 

“We’ll be monitoring closely to see that the National Guard aren’t a bigger hurt than help trying to inject themselves into the situation,” he said. “Are people talking to themselves going to freak them out? That’s not against the law.”