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Court Upholds Constitutionality of Subway Bag Inspections

08.16.06

The firm recently represented a variety of organizations and individuals on a pro bono basis in connection with MacWade v. Kelly, et al., 05 Civ. 6921 (RMB) (S.D.N.Y. Dec. 5, 2005), aff'd, --- F.3d ---, No. 05-6754-cv (2d Cir. Aug. 11, 2006), a case with significant national security implications that has received widespread media attention. The case involved a challenge to the NYPD bag inspection program, instituted shortly after the July 2005 London underground bombings. Shortly after the program was instituted, five plaintiffs challenged the program on Fourth Amendment grounds. We argued, on behalf of amici curiae in pre-trial and post-trial submissions at the district court level and before the United States Court of Appeals for the Second Circuit, that that there is a significant terrorist threat to urban mass transportation systems, that plaintiffs’ proposed analysis was unduly restrictive and inconsistent with established Fourth Amendment precedent and that, if accepted, it would unduly hamper law enforcement efforts to combat terrorism. The district court upheld the program and, on August 11, 2006, the Second Circuit affirmed on grounds that were in accord with each of the arguments asserted by amici.

The amici included the Washington Legal Foundation (public-interest law and policy organization based in Washington, D.C.), Families of September 11, Inc. (a nonprofit organization founded in October 2001 by families of those who died in the September 11 terrorist attacks), Rep. Peter T. King (chairman of the House Committee on Homeland Security), Rep. Ginny Brown-Waite (member of the House Committee on Homeland Security), New York State Senator Marty Golden (member of the New York Senate’s Committees on Veterans, Homeland Security, and Military Affairs), New York Assemblymen Vincent Ignizio and Matthew Mirones, Minority City Council Leader James Oddo, the Allied Educational Foundation (a non-profit charitable foundation founded in 1964), and Steven M. Flatow, (a resident of New Jersey whose daughter was killed by the Palestinian Islamic Jihad on a bus bombing while studying abroad in Israel through Brandeis University).

The amici were represented by Andy Frankel, Bryce Friedman and Seth Kruglak. Paralegal Alex Fiedler also provided valuable assistance.