New Republic Blogger Not Sure if D.C. Checkpoints are Unconstitutional


Josh Patashnik
New Republic
June 7, 2008

Editor’s note: Josh Patashnik, a blogger over at the New Republic, is not certain if D.C.’s "military-style checkpoint" plan is unconstitutional. Patashnik cites Orin Kerr of the Volokh Conspiracy blog, who thinks it "probably" is.

Probably?

The Baghdad-style checkpoints are obviously a violation of the Fourth Amendment. It does not take a constitutional lawyer to figure this out.

Patashnik excuses the checkpoints, saying "judges probably ought to be a bit wary about taking that decision out of the hands of politicians whose constituents actually live in the affected neighborhoods."

In other words, it is OK to subvert the Bill of Rights if residents in crime ridden areas are ignorant of the Constitution or think it should be trampled because they are tried of crackheads and gang-bangers toting Glocks. Instead of trashing the Fourth Amendment, they should demand the government stop importing drugs and legalize or at least decriminalize

It is yet another example demonstrating that a growing number of people do not deserve a constitutionally limited republic, even if they are unwilling to keep it.

Here’s Patashnik blog entry:

Is D.C.’s "Military-Style Checkpoint" Plan Unconstitutional?

There’s been a fair amount of uproar in the D.C. blogosphere in response to the city’s plan to set up a "military-style checkpoint" outside the Trinidad neighborhood in Northeast D.C. The idea, hatched in response to a wave of drive-by murders and armed robberies, is to stop all cars entering the area to ascertain whether they have a "legitimate purpose" for being in the area. It’s certainly a controversial plan–and, at least to an uninformed observer like me, there are a variety of reasons why it seems likely to prove ineffective–but is it unconstitutional?

Over at the Volokh Conspiracy, Orin Kerr ponders the question and concludes the answer is, probably. The Supreme Court ruled in 2000 that such checkpoints violate the Fourth Amendment when their aim is to "uncover evidence of ordinary criminal wrongdoing," rather than to help solve a specific crime. But the city’s position isn’t entirely indefensible:

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.

Can an ongoing crime wave (seven homicides, 16 robberies, and 20 armed assaults since April 1) constitute an "emergency"? Hard to say, but my inclination is that judges probably ought to be a bit wary about taking that decision out of the hands of politicians whose constituents actually live in the affected neighborhoods.

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