Police checkpoints: lack of guidance from the Supreme Court contributes to disregard of civil liberties in the District of Columbia.

• Author: Fiebig, Jason
• Position: Mills v. District of Columbia

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. (1)

1. INTRODUCTION

   Imagine armed police officers surrounding your neighborhood and pulling over every approaching vehicle without any individualized suspicion of guilt. Each driver is questioned regarding his purpose in driving into the neighborhood. Each driver is also forced to disclose the contact information of his friends, family, and associates in the neighborhood--information that is then verified and entered into a police database. Only those drivers who the police deem as having a legitimate purpose for entering the neighborhood are allowed to continue on to their final destination. For those who fail to comply, a local jail cell awaits.

   If you live in an area of the United States where the crime rates are high or rapidly rising, such tactics may soon find a place in a neighborhood near you. In the summer of 2008, the leaders of one major American city authorized the enforcement of such tactics--tactics that one more commonly associates with military zones in war-torn cities like Baghdad and Kabul. The American city that instituted these tactics, which were considered essential elements of a police checkpoint program authorized by city officials, serves as the capital of the United States: Washington, D.C. The first U.S. court that considered the constitutionality of these checkpoints found them reasonable and justifiable under the Constitution. (2) More recently, a panel of judges on the United States Court of Appeals for the D.C. Circuit held that the checkpoints are, in fact, unconstitutional. (3)

   In their opinions, both the district and appellate courts analyzed the constitutionality of Washington's police checkpoints by applying tests created by the Supreme Court. While this Comment argues that the D.C. Circuit's proper application of the tests resulted in the correct conclusion, it acknowledges that the current tests advocated by the Supreme Court make that conclusion debatable. However, this conclusion should not be up for debate and would not be if the Supreme Court modified or replaced its current, deeply flawed tests for assessing the constitutionality of police checkpoints.

   1. FACTUAL OVERVIEW OF THE D.C. POLICE CHECKPOINTS

      In the summer of 2008, the District of Columbia Metropolitan Police Department (MPD) established Neighborhood Safety Zones (NSZ) to combat the city's growing gun violence problem. (4) The District's top brass had decided that enough was enough, particularly in the Northeast neighborhood known as Trinidad. (5) In the preceding year, the neighborhood had witnessed an inordinate amount of violence involving firearms. (6) Several of these incidents resulted in homicides and as many as six involved the use of automobiles. (7)

      On June 7, 2008, in response to the aforementioned events and a triple homicide involving a juvenile victim that took place on May 31, 2008, the MPD, under the authorization of Special Police Order SO-08-06, designated a portion of Trinidad as an NSZ. (8) The MPD installed eleven vehicle checkpoints over the course of five days at locations around the zone's perimeter. (9)

      According to an article in the Washington Post, the checkpoints would

      stop vehicles approaching the 1400 block of Montello Avenue NE, a section of the Trinidad neighborhood that has been plagued with homicides and other violence. Police [would] search cars if they [suspected] the presence of guns or drugs, and [would] arrest petiole who [did] not cooperate, under a charge of failure to obey a police officer.... (10) In addition, vehicles were only allowed to enter the Trinidad neighborhood if police officers determined, after questioning the driver, that he had a "legitimate purpose" for entering the NSZ. (11) The checkpoints were to be enforced at random hours for at least five days, though they could be extended to ten days according to the police under Special Order SO-08-06. (12)

      The Special Order, which governed the conduct of the officers conducting the checkpoints, listed a variety of "legitimate" reasons for entry. (13) MPD officers staffing the checkpoints stopped 951 vehicles and denied entry to 48 on account of either the operator's failure or refusal to provide a "legitimate reason" for entry. (14) The MPD officers were authorized to request identification and proof of the reason for entry in order to "'verify the accuracy of the reason."' (15) Failure to provide a "legitimate reason" was not a criminal offense in itself, and those who were denied entry or that chose not to provide it were allowed to park their cars and enter the NSZ on foot. (16) For vehicles denied entry into Trinidad, officers were instructed to record the "operator information, vehicle description, vehicle tag number, and reason for denial." (17) Even for vehicles granted entry, officers were instructed to record the tag number and reason for entry. (18) The District has admitted that much of this information was entered into a law enforcement database, for reasons unknown as of this point. (19)

      On July 18, 2008, the MPD issued a revised Special Order regarding the NSZ. (20) The core aspects of the program and procedures were not changed. (21) However, the revised Special Order required that no data gathered at NSZ checkpoints from that point on was to be entered into any District of Columbia law enforcement electronic database. (22)

      The following day, July 19, 2008, Chief of Police Cathy Lanier authorized a second NSZ in Trinidad. (23) These checkpoints were presumably in response to multiple shootings earlier that day by individuals allegedly firing from automobiles. (24) More than six people were shot, including a thirteen-year-old boy who later died. (25)

      On July 24, 2008, Chief Lanier extended the second NSZ for five days in response to information the police had received indicating that further violence involving automobiles might be imminent. (26) Following the extension, another revised Special Order was issued, but none of the core aspects of the revised Special Order were materially altered. (27)

   2. THE DISTRICT OF COLUMBIA'S JUSTIFICATION FOR THE USE OF POLICE CHECKPOINTS IN TRINIDAD

      As mentioned previously, the checkpoints were instituted by the police in an attempt to combat a spike in the number of homicides in the District, which rose 7% in 2007 after several years of decline. (28) Chief Lanier noted that the checkpoints "served as a fence to keep violent criminals out of Trinidad" rather than as "nets to capture evidence of ordinary criminal wrongdoing." (29) City officials downplayed the significance of the initiative, noting that the MPD had used various checkpoints in the past. (30) In fact, while the use of checkpoints to surround a neighborhood was a new policy, the MPD had maintained a long-standing practice of using police checkpoints (referred to as roadblocks) for the purposes of general crime control and data collection. (31)

      Responding to the threat of a potential legal challenge to the checkpoints, Interim D.C. Attorney General Peter Nickles cited a New York case he believed provided legal support for the checkpoints, Maxwell v. City of New York. (32) In Maxwell, New York City police were authorized to stop motorists in the Bronx at random hours, mostly in the evening, to curtail drive-by shootings, drug trafficking, and robberies. (33) Neighborhood residents and commercial vehicles were allowed to pass while others were turned away. (34) A federal appeals court ruled in 1996 that those police tactics were constitutional, saying that the checkpoints were reasonably viewed as an effective mechanism to reduce drive-by shootings. (35)

      Even with the legal support found in Maxwell, Nickles believed that the District of Columbia had "gone the extra mile" to make sure that the roadblocks passed constitutional muster. (36) He assured the public that officials had tried all other reasonable means to stop the killings, including flooding the area with police officers. (37) Yet, on June 20, 2008, the Partnership for Civil Justice, a Washington-based public interest law firm, filed a class action lawsuit in the United States District Court for the District of Columbia seeking an injunction against the MPD's NSZ checkpoint program. (38)

      The plaintiffs alleged that the roadblock program instituted by the MPD authorized unconstitutional suspicionless seizures of persons traveling on public roadways in the District of Columbia. (39) All of the plaintiffs in the suit, except for one, were denied entry to Trinidad in their vehicles on account of their refusal to provide certain information. (40) On October 30, 2008, Judge Richard Leon of the U.S. District Court for the District of Columbia denied the preliminary injunction request because the plaintiffs had demonstrated neither a substantial likelihood that the checkpoint program was unconstitutional nor the necessary irreparable harm. (41)

      On July 10, 2009, approximately one year after the installation of the first set of NSZ checkpoints, the D.C. Circuit Court of Appeals reversed the district court and granted a preliminary injunction on the basis that the Trinidad checkpoints were likely to be held unconstitutional. (42)

   3. WOULD THE SUPREME COURT AGREE?

      It is difficult to determine whether the Supreme Court would agree with the opinions of the district court or the D.C. Circuit regarding the constitutionality of the NSZ checkpoints. Part II of this Comment explores how the Supreme Court has dealt in the past with police checkpoint cases that implicate the Constitution's Fourth Amendment protections. Part III considers Judge Leon's district court opinion refusing to grant a preliminary injunction prohibiting further use of NSZ checkpoints. This section also scrutinizes the D.C. Circuit's opinion, examining how it...