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D.C. Circuit enjoins police checkpoints to screen neighborhood entrants

Jul 16, 2009 D.C. Circuit enjoins police checkpoints to screen neighborhood entrants

In 1994, a border patrol agent stopped my car many miles north of the United States-Mexico border, as I drove at night towards my resting point in Albuquerque from Las Cruces, New Mexico. The stop was not pleasant, as the border patrol agent checked the back of my rental car — perhaps to see if the trunk was weighted down with illegal drugs, smuggled people, or unauthorized mescal — and then proceeded to try to get me to say I have a green card (maybe I’ve had a plaid card, but not a green one), and then waved me on after giving me his name, which I had requested, ultimately for no benefit. I already knew from my immigration law class that the Supreme Court had generally allowed such checkpoints deep into the border. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). What most made the stop unpleasant was my irritation at Martinez-Fuerte.

Four years before deciding Martinez-Fuerte, the Supreme Court ruled that roadblocks to check drivers’ sobriety do not necessarily violate the Fourth Amendment. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990). I got caught stopped in such a roadblock around ten years ago leaving the Georgetown section of Washington, D.C. The police officer was pleasant under the circumstances, explaining the reason for the stop — from which no notice had been posted to give me a chance to u-turn away, which I would have done — asking me and my passenger if we were okay (I preferred not to answer, but did, although I probably would not have if I had been alone in the car), and wishing us a pleasant evening.

As I wrote last year, while many were perhaps still giddy over his ascension to the mayorship two years earlier, D.C. Mayor Adrian Fenty gave police chief Cathy Lanier carte blanche to authorize ten-day “Neighborhood Safety Zones” where, according to mayor Fenty’s June 4, 2008, news release, “public safety checks will be established along the main thoroughfares of the established neighborhoods.” With its foregoing rulings, the Supreme Court had not made civil libertarians’ jobs easy to prevent such unconstitutional abominations. In fact, a federal trial judge refused to enjoin this nonsense.

Praised be the federal three-judge panel of Judges Sentelle, Ginsburg (the one Reagan wanted for the Supreme Court before having to go with Kennedy, over Ginsburg’s admitted prior marijuana use), and Rogers for reversing the denial of a preliminary injunction, saying that such a reversal was clearly mandated by Supreme Court precedent. Mills v. D.C., ___ F.3d ___ (D.C. Cir., July 10, 2009). Also, praised be Partnership for Civil Justice’s Mara E. Verheyden-Hilliard (who successfully argued the case in court) and Carl Messineo (on the brief; I know them both) for winning this wonderful preliminary injunction victory. Civil liberties victories like this are an inspiration never to give up and never to give in.

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