The Volokh Conspiracy - Is the DC Checkpoint Plan Unconstitutional?

The Washington Post has a detailed story on DC's plans for a "military style checkpoint" to stop gun violence. Eugene mentioned it briefly below, but I wanted to blog at some length about the legal issues. It turns out that there's a fairly specific Fourth Amendment law of automobile checkpoints, and that we can look to those cases to see how the DC law fits in. My bottom line: I think the DC checkpoint plan is pretty clearly unconstitutional.

Let's start with some background. The Supreme Court has held that the legality of automobile checkpoints are governed by a reasonableness standard under the Fourth Amendment. The cases try to balance the government's interests against the privacy interest and permit the automotive checkpoint when the government has a good reason and the infringement on privacy is minimal. So, for example, the police can use a drunk driving check point, or an immigration checkpoint, so long as they are well designed to minimize the privacy intrusion. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driving checkpoint okay); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (immigration checkpoint okay)

In 1996, in Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996), a divided panel of the Second Circuit relied on these precedents to uphold a checkpoint nearly identical to the one that DC is planning. The Second Circuit thought that the checkpoint was reasonable for three reasons:

First, the checkpoints in question served an important public concern in attempting to deter drive-by shootings that were, or were reasonably perceived to have been, connected with widespread drive-up drug purchases. Second, at the time of implementation, the checkpoints were reasonably viewed as an effective mechanism to deter criminal behavior in the barricaded area. Indeed, checkpoints similar to the one here had been effectively used in the past by the New York City Police. Third, the intended level of intrusion to motorists was minimal. No vehicle was to be stopped or its operation questioned unless entry into the cordoned-off area was desired. For those seeking entry, the stop was meant to be brief and was aimed solely at ascertaining the motorists' connection to the neighborhood.

The Post story suggests that DC is relying on the Maxwell case as authority for legality of the checkpoint. And if the law were today what it was in 1996, I would say their legal case is certainly plausible.

The difficulty is that four years after Maxwell, the Supreme Court took a different turn in its cases in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis set up vecicle checkpoints to search for drugs. The city was worried that people were bringing narcotics into the city, and they figured that they could set up reasonable checkpoints to deal with the drug problem much like the earlier checkpoints had dealt with the problems of drunk driving and immigration. The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety.

To read the rest of this post, click here.

Here's what the Court said:

Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of generality, [however], there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.

Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. Brief for Petitioners 14-17, 31. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.

Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.

The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance "the general interest in crime control," Prouse, 440 U.S., at 659, n. 18. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.

  Finally, there's one more precedent we need to consider: Illinois v. Lidster, 540 U.S. 419 (2004).. In Lidster, the police set up a vehicle checkpoint looking for a hit-and-run driver. In an effort to get leads about the hit-and-run driver, the police set up a checkpoint exactly one week after the accident at the scene of the crime; they then asked the drivers whether they had any information on the accident, on the theory that people may have been driving a specific route every week and may have seen the crime the week earlier. The Supreme Court held that this was not covered by Edmond because the purpose of the stop was to collect information about a crime, not to target the drivers: "The checkpoint stop here differs significantly from that in Edmond. The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals."

  So the question is, is the DC checkpoint "ultimately indistinguishable from the general interest in crime control"? I think the answer is yes. Granted, the case is somewhat harder than Edmond. The DC program has a tighter nexus to public safety than the drug checkpoint in Edmond, as it attempts to stop that violence directly rather than through the more meandering path of making drugs harder to buy. At the same time, a police officer who is trying to deter shootings is very much engaged in crime control. It's extremely important crime control, but it's still crime control. Further, the purpose of the stop is not to seek information about a known crime, as in Lidster: the purpose is to look for crime among the drivers, the prohibited purpose in Edmond.

  DC's best argument is that their checkpoint falls within the "emergency" exception suggested in Edmond: "there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control." The neighborhoods in DC are facing an emergency of violence, the argument would run. But the examples of emergencies in the Edmond opinion (quoted above) don't give this argument much hope. What's notable about these examples of permitted emergencies is that they are very specific: they involve roadblocks for a specific criminal or a specific attack, rather than roadblocks as a matter of course. It sounds like the checkpoints in DC are "matter of course" roadblocks; they are focused on dangerous neighborhoods, but they are general roadblocks not responding to any one offense. As a result, I don't think the checkpoints are constitutional.

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	[Orin Kerr, June 5, 2008 at 10:15pm] Trackbacks Is the DC Checkpoint Plan Unconstitutional? The Washington Post has a detailed story on DC's plans for a "military style checkpoint" to stop gun violence. Eugene mentioned it briefly below, but I wanted to blog at some length about the legal issues. It turns out that there's a fairly specific Fourth Amendment law of automobile checkpoints, and that we can look to those cases to see how the DC law fits in. My bottom line: I think the DC checkpoint plan is pretty clearly unconstitutional. Let's start with some background. The Supreme Court has held that the legality of automobile checkpoints are governed by a reasonableness standard under the Fourth Amendment. The cases try to balance the government's interests against the privacy interest and permit the automotive checkpoint when the government has a good reason and the infringement on privacy is minimal. So, for example, the police can use a drunk driving check point, or an immigration checkpoint, so long as they are well designed to minimize the privacy intrusion. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driving checkpoint okay); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (immigration checkpoint okay) In 1996, in Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996), a divided panel of the Second Circuit relied on these precedents to uphold a checkpoint nearly identical to the one that DC is planning. The Second Circuit thought that the checkpoint was reasonable for three reasons: First, the checkpoints in question served an important public concern in attempting to deter drive-by shootings that were, or were reasonably perceived to have been, connected with widespread drive-up drug purchases. Second, at the time of implementation, the checkpoints were reasonably viewed as an effective mechanism to deter criminal behavior in the barricaded area. Indeed, checkpoints similar to the one here had been effectively used in the past by the New York City Police. Third, the intended level of intrusion to motorists was minimal. No vehicle was to be stopped or its operation questioned unless entry into the cordoned-off area was desired. For those seeking entry, the stop was meant to be brief and was aimed solely at ascertaining the motorists' connection to the neighborhood. The Post story suggests that DC is relying on the Maxwell case as authority for legality of the checkpoint. And if the law were today what it was in 1996, I would say their legal case is certainly plausible. The difficulty is that four years after Maxwell, the Supreme Court took a different turn in its cases in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis set up vecicle checkpoints to search for drugs. The city was worried that people were bringing narcotics into the city, and they figured that they could set up reasonable checkpoints to deal with the drug problem much like the earlier checkpoints had dealt with the problems of drunk driving and immigration. The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety. To read the rest of this post, click here. Here's what the Court said: Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment. Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of generality, [however], there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life. Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. Brief for Petitioners 14-17, 31. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends. Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate. The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance "the general interest in crime control," Prouse, 440 U.S., at 659, n. 18. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime. Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control. Finally, there's one more precedent we need to consider: Illinois v. Lidster, 540 U.S. 419 (2004).. In Lidster, the police set up a vehicle checkpoint looking for a hit-and-run driver. In an effort to get leads about the hit-and-run driver, the police set up a checkpoint exactly one week after the accident at the scene of the crime; they then asked the drivers whether they had any information on the accident, on the theory that people may have been driving a specific route every week and may have seen the crime the week earlier. The Supreme Court held that this was not covered by Edmond because the purpose of the stop was to collect information about a crime, not to target the drivers: "The checkpoint stop here differs significantly from that in Edmond. The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals." So the question is, is the DC checkpoint "ultimately indistinguishable from the general interest in crime control"? I think the answer is yes. Granted, the case is somewhat harder than Edmond. The DC program has a tighter nexus to public safety than the drug checkpoint in Edmond, as it attempts to stop that violence directly rather than through the more meandering path of making drugs harder to buy. At the same time, a police officer who is trying to deter shootings is very much engaged in crime control. It's extremely important crime control, but it's still crime control. Further, the purpose of the stop is not to seek information about a known crime, as in Lidster: the purpose is to look for crime among the drivers, the prohibited purpose in Edmond. DC's best argument is that their checkpoint falls within the "emergency" exception suggested in Edmond: "there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control." The neighborhoods in DC are facing an emergency of violence, the argument would run. But the examples of emergencies in the Edmond opinion (quoted above) don't give this argument much hope. What's notable about these examples of permitted emergencies is that they are very specific: they involve roadblocks for a specific criminal or a specific attack, rather than roadblocks as a matter of course. It sounds like the checkpoints in DC are "matter of course" roadblocks; they are focused on dangerous neighborhoods, but they are general roadblocks not responding to any one offense. As a result, I don't think the checkpoints are constitutional. (hide) Related Posts (on one page): D.C. Police Checkpoint Plan Likely Violates the Fourth Amendment: When Can A Police Officer Lawfully Order You To Move Along?:: Is the DC Checkpoint Plan Unconstitutional? "Lanier Plans To Seal Off Rough 'Hoods in Latest Effort To Stop Wave of Violence":