Stops violate Constitution

Reprinted from Washington Times

By Matthew Cella

A federal appeals court Friday declared unconstitutional a controversial police checkpoint program used to cordon off a crime-ridden D.C. neighborhood last year.

The unanimous 14-page opinion of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit sends the case back to U.S. District Court for further consideration. But the strongly worded opinion left little room for interpretation about the appeals court's thoughts on the District's use of checkpoints.

"It is apparent that appellants constitutional rights are violated," Chief Judge David B. Sentelle wrote in the ruling.

The checkpoints, modeled after a similar New York City initiative, were first implemented in the Trinidad neighborhood of Northeast in June 2008 after a triple homicide and again in July 2008 after the fatal shooting of a 13-year-old boy.

The crimes were thought to be committed by gang members who were not residents but drove into the neighborhood.

Officially called the Neighborhood Safety Zone (NSZ) program, the checkpoints allowed police to bar drivers of vehicles who did not live in Trinidad or have a reason for being there from entering the neighborhood. Officers were authorized to request identification, and motorists could be denied entry for not verifying a legitimate purpose for entering, such as being employed within the affected zone.

D.C. Attorney General Peter J. Nickles, who has defended the constitutionality of the police searches, said he was "disappointed" with the ruling.

"We're looking very seriously at appealing the decision to the full Court of Appeals or to the Supreme Court," he said.

Mr. Nickles pointed out that the checkpoints were used only twice and under carefully structured orders. He said they proved effective in reducing violence in the community. He also said he has ideas to tweak the program to adhere to the Fourth Amendment, which prohibits unreasonable searches and seizures.

"We all did what was appropriate and what we believed to be lawful to save lives in the Trinidad neighborhood and for the greater good of public safety," Metropolitan Police Chief Cathy L. Lanier said Friday.

Chief Lanier said during a press conference last July that she would continue to employ the checkpoints "until a judge orders me to stop."

The case was filed in June 2008 by Caneisha Mills, Linda Leaks and Sarah Sloan, who were among the 48 motorists denied entry to the neighborhood during the first implementation of the checkpoints.

U.S. District Judge Richard J. Leon in October refused to issue a preliminary injunction prohibiting police from using the tactic, and he said the plaintiffs did not show that the program was unconstitutional or that the absence of an injunction would lead to "irreparable harm."

The case reached the appeals court in May, where lawyers for the District argued that a ruling should be governed by the U.S. Supreme Court's decision in the 2004 Illinois v. Lidster case. In that instance, the high court upheld a drunk-driving arrest made during a roadblock set up to solicit information about an unrelated crime. The court upheld the arrest because the primary purpose of the checkpoint was the investigation into the earlier event.

The plaintiffs argued the District's use of checkpoints more resembled the 2000 case of the City of Indianapolis v. Edmond. The Supreme Court ruled in that case that a police checkpoint searching for illegal drugs with no particular suspicion was unconstitutional because the interest of the police was in "general crime control."

"In short, the NSZ stop has nothing in common with the stop upheld in Lidster and everything in common with the unconstitutional stop in Edmond," Judge Sentelle wrote. "In neither case was there reason for the stop unrelated to the crime control purpose. The reason for stopping the individuals in each case was the possibility, without individualized suspicion, that the driver stopped might be the potential perpetrator of an as-yet undetected, perhaps uncommitted, crime."

Judge Sentelle went on to say there was no denying that "citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access."

Mara Verheyden-Hilliard, who argued the case for the Partnership for Civil Justice, called the decision a "total victory" and said she had "grave concerns" that other jurisdictions would institute similar police tactics if the District prevailed in the case.

"This decision is extremely significant because if the government had succeeded in establishing military-style checkpoints in D.C., it would have been a model used in urban areas around the country," she said.

D.C. Council member Phil Mendelson, chairman of the Committee on Public Safety and the Judiciary, also applauded the decision, saying the police department needed to pursue more effective, proven strategies.

"Roadblocks sound good - theyre a 'get tough' approach - but they are controversial and often illegal," he said. "There are much more effective strategies, as police Chief Cathy Lanier has shown, that have the communitys support and reduce crime."