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Government and People
From: Weinsheimer, Bradley (USADC), Bradley.Weinsheimer@usdoj.gov
[REDACTED]: Roy passed along to me the latest drafts of the NSZ materials. For what it is worth, I had a few thoughts that I have set forth below. Some of this may overlap with conversations you already have had with Roy.
1. The entire program is about denying entry unless the occupants of a vehicle have a legitimate purpose for being there. But there is no guidance in the Special Order ("SO") or training materials about how officers gather the information. Do they take the driver's word for it, do they need to see a license or government ID, what support is needed for a claim that they work, go to school, or are going to a legitimate activity in the area? I imagine these are hard questions to answer, but it is ferreting out the information that will lead to claims of selectivity in the way the NSZs are enforced. While I understand that vehicles present a greater danger than pedestrians, is there a sufficient basis to deny entry to someone in a vehicle but all pedestrians just get to walk in? I am not suggesting that you stop pedestrians, but rather that the guidance on stopping vehicles and the manner of information gathering probably will need to be very specific for this to survive legal challenge. What about someone in a car with a disability, can they enter the NSZ if not otherwise authorized? If the car has 6 occupants, 1 of which is a resident, can the car come in? What if the resident got into the car just prior to driving up to the checkpoint? As you can see, I am very concerned that the NSZs will not pass Constitutional muster or at least that there are so many circumstances that will lead to discretionary calls on the part of officers that as applied, the NSZs will be unconstitutional.
2. The SO and training materials are silent about searches. Is it OK for the officers to ask for consent search to search the car? I think there needs to be some explicit instruction/guidance on searches.
3. The Manager's Report (PD 907-A) has a blank that suggests the manager can decide to stop every third car, for example. Is that intended, and wouldn't that cause problems? Leaving aside traffic concerns (see below), under what circumstances would the manager decide to only stop every third car?
4. The SO suggests that if there are traffic back-ups, the NSZ can be temporarily lifted. I think that could lead to problems of selective enforcement unless carefully controlled and nearly uniformly applied.
5. While there are references to documentation, there are no procedures for documenting who was stopped and when or who was not permitted entry. I would think you would want to spell that out a bit.
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