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Caneisha Mills v. DC, Petition for rehearing
Peter Nickles, Attorney General
August 10, 2009

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No. 08-7127

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CANEISHA MILLS, et al., Appellants,

v.

DISTRICT OF COLUMBIA, Appellee.

On Appeal from an Order of the United States District Court for the District of Columbia

DISTRICT OF COLUMBIA'S PETITION FOR REHEARING EN BANC OR, IN THE ALTERNATIVE, PANEL REHEARING

PETER J. NICKLES
Attorney General for the District of Columbia

TODD S. KIM 
Solicitor General

DONNA M. MURASKY 
Deputy Solicitor General Office of the Solicitor General
Office of the Attorney General 441 4th Street, NW, Suite 600S Washington, D.C. 20001 (202) 724-6609

The District of Columbia petitions for rehearing en banc or, in the alternative, panel rehearing. This proceeding involves an exceptionally important question. The panel decision holds that the Fourth Amendment prohibits law enforcement authorities in the District from ever stopping drivers at checkpoints in order to deter crime. Even assuming that general deterrence interests are insufficient to justify a suspicionless stop, the Court should hold that a properly tailored checkpoint may be reasonable, and hence constitutional, in at least some circumstances when federal or District authorities act in response to specific, credible threats of imminent violence. Because the panel's holding is at minimum overbroad and will prevent authorities from employing a reasonable tool that may save lives, and because it conflicts with a recent decision of the Ninth Circuit, rehearing en banc or panel rehearing is warranted.

STATEMENT

1. Factual and procedural background. - In June 2008, the District of Columbia's Metropolitan Police Department (MPD) adopted a program to deter drive-by shootings and other violent crimes perpetrated using motor vehicles. Appendix (App.) 101-09. Under a carefully crafted MPD order, the Chief of Police may respond to documented criminal activity in particular neighborhoods by setting up vehicle checkpoints around "neighborhood safety zones" (NSZs) for limited times. App. 281-92. The order recites the program's purpose:

The primary purpose of an NSZ is not to make arrests or to detect evidence of ordinary criminal wrongdoing, but to increase protection from violent criminal acts, and promote the safety and security of persons within the NSZ by discouraging - and thereby deterring - persons in motor vehicles from entering the NSZ intending to commit acts of violence.

App. 281. The program's model is a "`fence' to keep violent criminals out," not a "`net[]' to capture evidence of ordinary criminal wrongdoing." App. 162.

Under the program, officers at well-publicized checkpoints stop drivers seeking to enter NSZs, ask their reasons for entry, and direct those who do not provide appropriate reasons to enter by foot rather than by car. App. 153, 285-86. Since its adoption, the program has been used twice in one neighborhood, from June 7 to 12, 2008, and from July 19 to 29, 2008. App. 142-51, 268-70, 274-76.

Four individuals stopped at a checkpoint challenged the program under the Fourth Amendment and sought damages, a permanent injunction, and declaratory relief. App. 1-15. They also moved for a preliminary injunction preventing "further implementation of `Neighborhood Safety Zone' roadway seizure checkpoints." Record Document (Doc.) 4; Doc. 4-9.

2. District court decision. - The district court denied the motion. App. 98. Plaintiffs failed first to show "a substantial likelihood that this checkpoint program is unconstitutional." App. 67. Under the relevant Supreme Court decisions, plaintiffs had to show either that "the primary purpose of the NSZ checkpoint program is to serve the District's `general interest in crime control,"' and thus that checkpoint stops are seizures that violate the Fourth Amendment under City of Indianapolis v. Edmond, 531 U.S. 32 (2000), or that "the checkpoints are nevertheless constitutionally unreasonable" under Brown v. Texas, 443 U.S. 47 (1979). App. 75-78. The court found as a matter of fact that the "purpose of the program is not to uncover evidence of ordinary criminal wrongdoing, but to deter violent crime facilitated specifically by the use of vehicles in neighborhoods recently victimized by spikes in violent crime." App. 78-81. The court then concluded that this purpose passes muster under Edmond, especially given Illinois v. Lidster, 540 U.S. 419 (2004), a later decision construing Edmond. App. 81-85.

The court next concluded that the program was otherwise reasonable and hence that plaintiffs had little likelihood of success on the merits. App. 85-92. Per Brown, the court considered the gravity of the public interest, the degree to which the checkpoints advance that interest, and the severity of the interference with individual liberty. App. 77. On the first factor, plaintiffs conceded the "grave situation" in the District relating "to street crime and personal security." App. 86. On the second factor, the court found the method chosen to be "a reasonable means to advance the program's deterrent purpose." App. 86-88. On the third factor, "the [intrusiveness] analysis weighs in the District's favor" due to the decreased expectation of privacy enjoyed in vehicles; the brief nature of the checkpoint stops and limited scope of officers' inquiries; drivers' freedom not to answer any inquiry and to enter NSZs by foot; the steps taken to minimize stopped drivers' anxiety; and the lack of discretion given officers implementing the program. App. 89-92.

Plaintiffs' failure to show irreparable injury was an independent ground for denying a preliminary injunction. App. 67, 93-97. "[T]he risk that a NSZ will be instituted again during the pendency of this litigation is so speculative that ... the `imminence' requirement for a preliminary injunction is . . . lacking." App. 93-94.

Having found that plaintiffs' request for a preliminary injunction failed for these independent reasons, the court saw no need to analyze the remaining factors in depth. App. 97. It did, however, conclude: "Suffice it to say that the public's interest in deterring violent crime of this type through a checkpoint program this carefully crafted is overwhelming. Simply put, to take this arrow out of MPD's quiver on such a weak showing as to its unconstitutionality would be injurious not only to MPD's ability to protect our citizens, but to the public's overwhelming need to be protected from these mobile merchants of violence." App. 97.

3. Panel decision. - A panel of this Court reversed and remanded. It held that this case is "governed" by the rule the Supreme Court announced in Edmond - that the Fourth Amendment forbids any checkpoint program with a "primary purpose" that is "ultimately indistinguishable from the general interest in crime control." Slip op. at 9 (quoting Edmond, 531 U.S. at 48) (attached in addendum). Although the Court in Lidster had cautioned against applying Edmond to factual circumstances different from those in that decision, the panel thought "it apparent from the face of the checkpoint programs involved that the stop before us is far more like the stop in Edmond than in Lidster." Id. at 9-10. It elaborated:

The Edmond stop sought to detect and deter crimes involving narcotics. The NSZ stop seeks to deter violent crimes involving motor vehicles. This would seem a distinction without a difference. In each instance the interest of the police was in general crime control, not directed to any particular suspicion or a particular crime. 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. Both of these sets of facts seem to fit equally within the rubric of "general interest in crime control."

Id. at 10-11. By contrast, "[t]he police in Lidster were investigating a crime that they knew to have occurred. They were not looking for suspects." Id. at 11.

The panel rejected the argument that the stops proscribed under Edmond and Lidster are only those "seizures actually looking for evidence of crime as opposed to seizures designed to deter crime." Id. at 11-12. Seeing nothing in Edmond that so indicated, it relied on the usual rule that stops require individualized suspicion:

Under the District's interpretation, individualized suspicion is only required when a law enforcement officer is searching for evidence of criminal wrongdoing. Any suspicionless checkpoint program therefore would be allowed so long as its primary purpose did not involve actively seeking evidence of criminal wrongdoing. The individualized suspicion requirement is the rule under the Fourth Amendment, not the exception. Accordingly, we cannot read "the general interest in crime control" so restrictively as to encompass only those checkpoints in which law enforcement officers were seeking evidence of criminal wrongdoing.

Id. at 12. Thus, the panel concluded that Edmond proscribes checkpoints with primary purposes including "investigation and deterrence." Id.

Because the panel thus categorically concluded that any checkpoint with deterrence as a primary purpose is proscribed, it did not decide whether NSZ stops meet the separate requirement of reasonableness under Brown. It did, however, express doubt that they would survive that test. Id. at 8.

The panel also found plaintiffs' showing of irreparable injury sufficient to justify a preliminary injunction. Id. at 13-14. It thus reversed and remanded for the district court to consider other factors under the preliminary injunction analysis. Id. at 14.

ARGUMENT

I. THE PANEL'S HOLDING THAT THE FOURTH AMENDMENT PROHIBITS LAW ENFORCEMENT AUTHORITIES FROM EVER STOPPING DRIVERS AT CHECKPOINTS IN ORDER TO DETER CRIME WARRANTS EN BANC REHEARING.

A. This Court Should Hold That The Fourth Amendment Does Not Categorically Proscribe Checkpoints At Least When Employed To Deter Specific, Credible Threats Of Imminent Violence.

Reasonableness is "the ultimate touchstone of the Fourth Amendment." Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). When law enforcement officers know someone is driving to a particular location to shoot people, the Fourth Amendment accordingly should not categorically forbid checkpoints properly tailored to that threat. In holding that deterrence is not an appropriate motivation for a checkpoint, however, the panel did not distinguish between two types of deterrence interests: the interest in thwarting specific, credible threats of imminent violence and the interest in reducing crime more generally.1 The panel thus did not address the District's argument that at minimum checkpoints intended to deter such specific threats are not categorically proscribed. See Appellee's Brief 37-38; Appellee's Letter to the Clerk of May 18, 2009. Rehearing en banc is warranted because this issue is exceptionally important and because the panel's holding is at minimum overbroad.

The issue of whether deterrence interests may ever justify a checkpoint stop is exceptionally important. The expert judgment of the District's Chief of Police is that a checkpoint may prove the best way in very specific instances to save lives in the District of Columbia. Cf. Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 837 (2009) ("[R]easonableness under the Fourth Amendment does not require employing the least intrusive means ...."). For instance, authorities dealing with violence between gangs based in different neighborhoods may know that a reprisal attack that may cost innocent lives is imminent.2 Indeed, the Chief extended one period of NSZ checkpoints because of "information ... that the threat of additional and future acts of violence" by drivers entering a particular neighborhood "remain[ed] high." App. 274, 279. If the panel has extended Edmond improperly, en banc review is warranted to ensure that federal and District authorities can employ a life-saving tool that the Constitution allows.

The panel erred at least to the extent it forbade checkpoints intended to thwart specific, credible threats of imminent violence. Edmond does not hold or suggest that such checkpoints are categorically forbidden. The holding related to "the general interest in crime control," not such specific threats, and the Court warned against analyzing a checkpoint's purpose at a "high level of generality." 531 U.S. at 42, 48. Further, it recognized that "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. For example.... the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route." Id. at 44.

Indeed, plaintiffs agree that not every checkpoint with a purpose that sounds in deterrence is proscribed. To be sure, their opening brief broadly argued: "Crime Deterrence is Crime Control, and is Therefore Proscribed ...." Appellants' Brief 20; see id. at 1, 2 (similar). They later clarified, however, that some "exigent circumstances" may justify checkpoints - in particular, checkpoints based on "a particular, if not individualized, need to stop a criminal or criminal act." Reply Brief 14 n.5; Appellants' Letter to the Clerk of May 29, 2009. The panel made no such distinction even though it was bound in considering this facial challenge to consider whether checkpoints under the program "can ever be conducted." BNSFRy. v. DOT, 566 F.3d 200, 208-09 (D.C. Cir. 2009).

The District does not suggest, as the panel erroneously stated, that "[a]ny suspicionless checkpoint program ... would be allowed so long as its primary purpose did not involve actively seeking evidence of criminal wrongdoing." Slip op. at 12. To the contrary, plaintiffs themselves recognized that "it [is] not the District's position that any checkpoint is automatically constitutional provided that its primary purpose is not to detect evidence of ordinary criminal wrongdoing." Reply Brief 22. Considering a checkpoint's primary purpose is only the first step of the analysis, because even a checkpoint with a permissible purpose must be reasonable under the three-factor test in Brown. Appellants' Brief 14, 36-40; Appellee's Brief 1, 16, 18, 28, 39-50; see Lidster, 540 U.S. at 426-27.

The panel should have undertaken the Brown analysis. Under that analysis, the panel would have considered the same factors as the district court: the gravity of the public interest served by the stops at checkpoints, the degree to which the stops advance that interest, and the severity of the interference with individual liberty. App. 85-92. Applying that fact-specific inquiry, the Court can forbid checkpoints that are unreasonable because, for instance, the governmental interest in responding to a particular threat does not outweigh the intrusion upon stopped drivers' liberty interests. The Fourth Amendment does not require adoption of a categorical rule outlawing all checkpoints serving any deterrence interest even if the interest in deterring a specific threat is compelling and the stop intrudes only minimally on individual liberty interests. En banc review is warranted.

B. Even Checkpoints Motivated By General Deterrence Interests Should Not Be Categorically Proscribed.

Further, the panel's holding was incorrect even with regard to checkpoints motivated by general deterrence interests rather than specific, credible threats of imminent violence. The broader holding of the panel independently warrants rehearing en banc because it does not follow from Edmond and is inconsistent with both Lidster and a recent Ninth Circuit decision.

In the checkpoint program at issue in Edmond, officers stopped cars to seek evidence of illegal narcotics. 532 U.S. at 34-35. In forbidding such checkpoints because the purpose was to further "the general interest in crime control," the Court indicated that this phrase did not refer to every "law enforcement" objective and appeared to understand that it was addressing programs that "employ a checkpoint primarily for the ordinary enterprise of investigating crimes" that the driver of the stopped vehicle may have committed. Id. at 42, 44 & n. 1.

In Lidster, the Court rejected an attempt to read Edmond more broadly and upheld a checkpoint program in which officers sought information from stopped drivers about a prior incident. 540 U.S. at 422-24. The Court explained: "We found that police had set up th[e Edmond] checkpoint primarily for general `crime control' purposes, i.e., `to detect evidence of ordinary criminal wrongdoing."' Id. at 423 (quoting 531 U.S. at 41). The checkpoint at issue "differ[ed] significantly" because its "primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others." Id. The Court continued:

We concede that Edmond describes the law enforcement objective there in question as a "general interest in crime control," but it specifies that the phrase "general interest in crime control" does not refer to every "law enforcement" objective. We must read this and related general language in Edmond as we often read general language in judicial opinions - as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering.

Id. at 424 (citing 532 U.S. at 44 n.1) (citation omitted and emphasis added).

The panel nonetheless found NSZ stops to be categorically proscribed: "The Edmond stop sought to detect and deter crimes involving narcotics. The NSZ stop seeks to deter violent crimes involving motor vehicles. This would seem a distinction without a difference." Slip op. at 10. The panel misread Edmond, in which the "primary purpose was to detect evidence of ordinary criminal wrongdoing." 532 U.S. at 38. The Court did not indicate that deterrence was a secondary purpose; the word "deterrence" is not in the opinion. Further, even if deterrence had been a secondary purpose, Edmond itself holds that the "primary purpose" controls the analysis. Id. at 46-47. The Court thus explained: "Because the primary purpose ... is to uncover evidence of ordinary criminal wrongdoing, the program [at issue] contravenes the Fourth Amendment." Id. at 41-42.

Moreover, the difference between checkpoint stops intended to detect crimes and checkpoint stops intended to deter crimes is highly significant. The former are particularly objectionable under the Fourth Amendment because by definition their purpose is to detect crimes by those stopped, and thereby acquire evidence to use against the stopped driver, even though officers have no individualized suspicion. See Edmond, 531 U.S. at 44. Although "such suspicion is not an `irreducible' component of reasonableness," a "search or. seizure is ordinarily unreasonable" in its absence. Id. at 37 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976)). By contrast, the latter involve stops to prevent crimes from happening and have nothing to do with whether the driver has committed any crime. Indeed, the NSZ program is designed to discourage those who might commit crimes from even approaching one of the well-publicized checkpoints. App. 154, 253. As in Lidster, "the context ... is one in which, by definition, the concept of individualized suspicion has little role to play," as the stop "is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual," let alone any attempt to gather evidence against him or her. 540 U.S. at 424-25. The panel's holding extends Edmond and creates a new rule of constitutional law without good reason.

Furthermore, the panel decision conflicts with a recent decision of the Ninth Circuit, which itself justifies en banc review under Federal Rule of Appellate Procedure 35(b)(1)(B). In United States v. Fraire, No. 08-10448 (9th Cir. Aug. 4, 2009) (attached in addendum), that court upheld a checkpoint program motivated by deterrence - in particular, a program "aimed at preventing illegal hunting" in a national park. Id., slip op. at 10216, 10220. The court rejected the argument that the suspicionless stops were invalid under Edmond, because there was a "close connection between the checkpoint and the harm it was seeking to prevent" and because "[t]he goal was prevention, not arrests." Id. at 10220.

That program differed in many respects from the NSZ program, but the important point is that the Ninth Circuit recognized that the constitutionality of a checkpoint motivated by deterrence depends on "the individual circumstances" as analyzed under Brown, not a categorical rule as in Edmond. Id. at 10218-19, 10221-23. Again, the District does not contend that checkpoints are automatically permissible even if no Edmond-style rule of automatic unconstitutionality applies, because the Brown analysis still applies. As the Mayor has recognized, the NSZ program authorizes an "extreme measure" justified in "extreme circumstances." App. 19. In some such circumstances, a checkpoint may be warranted even in the absence of a specific, credible threat of imminent violence (and certainly if such a threat is present). Indeed, the Second Circuit upheld a similar New York City program under Brown. Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir. 1996). In any event, even if the panel was right to have doubt on that point with regard to this particular program (slip op. at 8), the decision leaves no room for federal and District authorities to design any program involving checkpoint stops intended to deter crime, no matter how compelling the governmental interest or how minimally intrusive the stops may be. En banc review is warranted.

II. AT MINIMUM, PANEL REHEARING IS APPROPRIATE TO CLARIFY THE SCOPE OF THE DECISION.

At minimum, the panel should rehear this case and clarify that the Fourth Amendment does not prohibit all checkpoints primarily intended to deter crime, at least in response to specific, credible threats of imminent violence. Doing so would ensure not only that this Court's precedent does not unnecessarily limit the steps that federal and District law enforcement authorities can take in the future, but also that the district court on remand in this case does not enter a broader preliminary injunction than the Fourth Amendment requires. Plaintiffs moved for a preliminary injunction preventing all "further implementation of `Neighborhood Safety Zone' roadway seizure checkpoints." Doc. 4; Doc. 4-9. Although they have since agreed that checkpoints are permissible in some "exigent circumstances," they have never explicitly indicated that they now seek a narrower injunction. Reply Brief 14 n.5.

Furthermore, the panel's apparent belief that an NSZ stop is necessarily unrelated to "any particular suspicion or a particular crime" (slip op. at 10) is unsupported. Nothing in the record so limits the program and, again, the Chief extended one period of NSZ checkpoints because of such particular suspicion. App. 274, 279. Assessing plaintiffs' request for prospective relief requires an analysis of whether the program may be constitutionally applied in the future, and the future may bring specific, credible threats of imminent violence for which a checkpoint would be the best response. Rehearing would be appropriate to make clear at least that the district court on remand can find some potential applications of the NSZ program to be constitutional.

CONCLUSION

The Court should grant this petition for rehearing en banc or, in the alternative, panel rehearing.

Respectfully submitted,

PETER J. NICKLES
Attorney General for the District of Columbia

TODD KIM
Solicitor General

DONNA M. MURASKY 
Deputy Solicitor General Office of the Solicitor General
Office of the Attorney General 
441 4th Street, NW, Suite 600S 
Washington, D.C. 20001 
(202) 724-6609

1. The panel stated once that an "NSZ stop" is "not directed to any particular suspicion or particular crime," but it did not qualify the holding that Edmond bars checkpoints whose primary purpose is "deterrence." Id. at 10, 12; see id. at 11 (rejecting the argument that "seizures designed to deter crime" are allowed).

2. See, e.g., David C. Lipscomb, Violent D. C. crews drive up crime rates; Columbia Heights a hotbed, Wash. Times, Dec. 11, 2007, at AO 1; Ruth Samuelson, Truce and Consequences, Wash. City Paper, May 30, 2008, at 24. Other cities thus have enjoyed success with similar programs. See, e.g., James Lasley, National Institute of Justice, "Designing Out" Gang Homicides and Street Assaults (Nov. 1998) (Los Angeles), available at http://www.ncjrs.gov/pdffiles/173398.pdf; Leonard Hamm & John Skinner, Baltimore Police Department: Community Safe Zone, Police Chief Magazine, Dec. 2006.

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