Ban on "dangerous tools" in Berlin stations and trains
An order issued by the Federal Police Headquarters in Berlin allowed mass searches without any reason. Our emergency appeal against the order was successful.
The GFF in cooperation with the Humanist Union (HU) supported appeals by five individuals against an order issued by the Federal Police Headquarters in Berlin, as well as a successful emergency appeal against the order.
The general order banned the carrying of what it literally called "dangerous tools" on weekends between 8 p.m. and 6 a.m. between Nov. 1, 2018, and Jan. 31, 2019, in all S-Bahn trains as well as regional and long-distance trains and at all Berlin train stations between Zoologischer Garten in the west and Lichtenberg in the east. To enforce the ban, the police could search any person without cause and for no particular reason and impose fines of up to 250 euros for violations. In the GFF's view, the general order overshot the mark by far, as it was also directed against everyday and harmless behavior, and was therefore unlawful.
A disproportionately broadly formulated ban
With the ban on "dangerous tools," the general injunction took up a term from criminal law that appears, for example, in Section 224 of the Criminal Code. Under criminal law, an object is considered a "dangerous tool" if it is capable of causing significant physical injury based on its objective nature and the way it is specifically used. Thus, a sharpened pencil or a belt can become a "dangerous tool" if they are used to cause bodily harm. This concept raises problems when the very "carrying" of such an object in an act increases the penalty, as in Section 244 of the Criminal Code. The jurisprudence therefore demands restrictively that only carried objects are to be covered that are "objectively dangerous" like weapons, e.g. brass knuckles. On the other hand, it should not increase the punishment if the perpetrator had, for example, a sharp pencil with them.
These problems were ignored by the general decree, which has no such restriction. It contained the following passage: "Dangerous is a tool which, according to its objective nature and the nature [...] of its concrete use as a means of attack or defense, is capable in individual cases of causing significant injury." Accordingly, in addition to objectively dangerous objects such as brass knuckles, the ban also covered almost every conceivable everyday object, such as laptops, corkscrews, or walking sticks, because they too could theoretically be used to harm others. This alone made the ban disproportionate.
No sufficient legal basis
The general order also lacked a sufficient legal basis. The federal police invoked the so-called general clause (Section 14 of the Federal Police Act, BPolG). However, police measures that allow far-reaching encroachments on fundamental rights must be based on specific legal foundations.
In order to enforce the ban on "dangerous tools," the general order allowed the federal police to search any person without cause and without any special reason. By thus enabling mass searches of individuals without specific cause, it had an effect similar in intensity to dragnet searches. Reasonless searches are also worrisome because they are a gateway to "racial profiling," the application of police measures according to criteria such as skin color or (ascribed) ethnicity.
Like a dragnet, the general order issued by the Berlin Federal Police Directorate would therefore have required a special legal basis - but such a basis did not exist in the BPolG back then nor does it exist today.
Unclear exceptions
All five supported appellants regularly carry supposedly "dangerous" tools. Susanne Schuster regularly carries a corkscrew, pens and often a Swiss Army knife on the affected Berlin S-Bahn line during the ban times for private purposes. Andreas Bogk also carries a Swiss Multitool and regularly uses it for private and professional purposes. The situation is similar for Igor D.
It is true that the general ruling excluded people who "recognizably carry prohibited items exclusively for domestic use" or who can "credibly" demonstrate the professional necessity of the items. But it was unclear whether the federal police would let the Swiss Multitool, for example, pass.
Therefore, on December 21, 2018, attorney Anja Heinrich applied for provisional legal protection for Schuster and Bogk at the Berlin Administrative Court, supported by the GFF and the Humanist Union. They also supported the opposition proceedings of two other affected persons as well as summary proceedings by Igor D. On January 18, 2019, the Administrative Court of Berlin granted Igor D.'s summary application. It shared much of the GFF's argumentation and, after a summary review, came to the conclusion that the general ruling was unlawful and that the objections to it had a suspensive effect.
The Federal Police lodged an appeal against this with the Higher Administrative Court of Berlin-Brandenburg. After the general ruling expired at the end of January, the legal dispute was resolved. As a result, only a decision on costs remained to be made, in which the Higher Administrative Court endorsed the argumentation of the Administrative Court on February 28, 2019. The Federal Police had to bear the costs of the proceedings.
