Legal Commentary

Police in German State Checking ID?s of Everyone Entering or Leaving a Mosque?

By Eugene Volokh

So reports the Global Post:

In Lower Saxony, a state in northwestern Germany, Muslim worshippers heading to Friday services routinely arrive to find the street in front of the mosque cordoned off and armed police at the entrance. Those entering or leaving the mosque must show their identification papers. Sometimes the police search bags, ask questions, or bring those who cannot show ID to the precinct station. In one city, officers stamped Muslims on the arm after checking them.

In these controls, known as ?unmotivated mosque checks,? the police are not seeking any specific person or investigating any particular crime. Rather, they are acting under a 2003 state law that empowers them to question and search individuals in public places regardless of any suspicion of wrongdoing in the interest of preventing crimes of ?grave and international concern.?

That seems like unjustifiable religious discrimination, and also not particularly helpful in catching terrorists, especially when done ?routinely.? Nor is it easily justifiable, I think, as a means of getting valuable tips from mosque-goers, since I expect that it would decrease the amount of cooperation between mosque-goers and the police rather than increasing it.

I do not think that religious institutions should be immune from standard police practices aimed at rooting out crime that may happen or may be planned at the mosques. Just as it?s often permissible for the police to engage in clandestine surveillance of an Italian-American Social Club when they think there?s mafia activity there, or of a political group?s meeting place when they suspect there are crimes being planned there, so I think it should be permissible for them to surveil churches, mosques, synagogues, and the like.

There are often institutional constraints on the police doing this (the federal government, for instance, has had such guidelines), and such constraints may often be prudent. But I don?t think that, as a matter of principle, such constraints should be absolute, nor do I think that they should be constitutionally compelled ? for the U.S. view on this, see Laird v. Tatum, which I believe is correct. (Naturally, I?m not an expert on German law and whether it actually compels them; I?m speaking here of broader principles.)

But in any case, this sort of ID-checking (as opposed to much less visible surveillance) does not strike me as standard police procedure for places that are used perfectly legitimately by many law-abiding people, but may also be used by some serious criminals. And while I accept that certain constraints on privacy, liberty, and equality may be proper if they are genuinely necessary to preventing extremely dangerous crimes, this sort of procedure strikes me as so unlikely to be effective that I find it hard to see it as justifiable under such an argument.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).