United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2009 Decided July 10, 2009
No. 08-7127
CANEISHA MILLS, ET AL., APPELLANTS v. DISTRICT OF COLUMBIA, APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01061)
Mara E. Verheyden-Hilliard argued the cause for
appellants. With her on the briefs was Carl Messineo.
Todd S. Kim, Solicitor General, Office of the Attorney
General for the District of Columbia, argued the cause for appellee.
With him on the brief were Peter J. Nickles, Attorney General, and
Donna
M. Murasky, Deputy Solicitor General. Stacy Anderson, Assistant Attorney
General, entered an appearance.
Before: SENTELLE, Chief Judge, and GINSBURG and ROGERS,
Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: Four District of Columbia citizens
(appellants) filed a motion for a preliminary injunction to enjoin
further implementation of a police checkpoint program in the District of
Columbia. The district court denied the motion for a preliminary
injunction, holding that the appellants failed to show either
irreparable harm or a substantial likelihood of success on the merits.
Because we hold that the appellants’ showing of irreparable harm is
sufficient, and conclude that appellants have shown a substantial
likelihood of success, we reverse the district court and remand for
further proceedings.
I. BACKGROUND
The neighborhood safety zone (NSZ) program was created by
the Metropolitan Police Department (MPD) in response to the violence
that has plagued the Trinidad neighborhood in Northeast Washington, D.C.
for many years. Before this case arose, Trinidad had recently been the
scene of twenty-five assaults involving firearms, five of which resulted
in deaths, and six of which involved the use of vehicles. Shortly after
a triple homicide in the Trinidad neighborhood on May 31, 2008, the MPD
designated a portion of the neighborhood an NSZ. Pursuant to MPD Special
Order 08-06, issued June 4, 2008, MPD implemented the program and
erected eleven vehicle checkpoints over the course of five days at
locations around the perimeter of the NSZ. This first implementation of
the checkpoints took place from June 7 to June 12, 2008. On July 19,
2008, nearly a month after appellants commenced this action in the
district court, the Commander of MPD’s Fifth District, in response to
a series of violent attacks that morning in Trinidad, requested and was
granted approval for another NSZ in the Trinidad neighborhood. This
second implementation of the NSZ program originally was to run from July
19 to July 24, but was extended until July 29, 2008.
During the first implementation of the NSZ program,
Special Order 08-06 set forth the parameters of the program. According
to the Special Order, the original primary purpose of the program was
“to provide high police visibility, prevent and deter crime, safeguard
officers and community members, and create safer District of Columbia
neighborhoods.” This Special Order also governed the police
officers’ conduct at the checkpoints during the first implementation
of the NSZ checkpoint program. According to the Special Order, motorists
were to receive advance notice of checkpoints, which were to be marked
with signs around the borders of the NSZ as well as “barricades,
lights, cones, and/or flares.” Officers were to stop all vehicles
attempting to gain access to the NSZ area. Officers were not to stop
vehicles attempting to leave the NSZ area without particularized
suspicion. Officers also were not to stop individuals seeking to enter
the NSZ area on foot. When motorists attempting to gain entry into the
NSZ area were stopped at the checkpoint, officers were required to
identify themselves to motorists and inquire whether the motorists had
“legitimate reasons” for entering the NSZ area. Legitimate reasons
for entry fell within one of six defined categories: the motorist was
(1) a resident of the NSZ; (2) employed or on a commercial delivery in
the NSZ; (3) attending school or taking a child to school or day-care in
the NSZ; (4) related to a resident of the NSZ; (5) elderly, disabled or
seeking medical attention; and/or (6) attempting to attend a verified
organized civic, community, or religious event in the NSZ. If the
motorist provided the officer with a legitimate reason for entry, the
officer was authorized to request additional information sufficient to
verify the motorist’s stated reason for entry into the NSZ area.
Officers denied entry to those motorists who did not have a legitimate
reason for entry, who could not substantiate their reason for entry, or
who refused to provide a legitimate reason for entry.
Motorists who failed to provide sufficient information
were refused entry into the neighborhood in their vehicles, although
motorists were not charged with a criminal offense if they failed to
provide a legitimate reason for entry. Officers could not conduct a
search of a stopped vehicle unless individualized suspicion developed
during a stop. During the first implementation of the NSZ program, only
one arrest was made at a Trinidad NSZ checkpoint; the arrest was for
driving while in possession of an open container of alcohol. Forty-eight
of 951 vehicles stopped during the June checkpoints were refused entry.
The record does not indicate whether any arrests were made during the
second implementation of the program. See Mills v. District of Columbia,
584 F. Supp. 2d 47, 58 n.8 (D.D.C. 2008).
Between the first and second implementation of the NSZ
checkpoints, but after this action commenced, the District revised its
Special Order governing the program. Though the six
“entry-sufficient” categories remained the same, the District,
understandably concerned with running afoul of the Fourth Amendment,
tweaked its approach to implementing the program. Significantly, the
revised Special Order established that motorists should be asked for
identification only if they claimed to be residents of the NSZ in order
to verify their residency. The revised Special Order also provided that
information given by the motorist need only be “reasonably
sufficient” to verify the motorist’s reasons for entry. The primary
purpose of the NSZ program remained similar despite the revisions to
other areas of the program. The revised Special Order, however,
clarified that “[t]he [revised] 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.”
Appellants Caneisha Mills, Linda Leaks, and Sarah Sloan
were among the 48 motorists denied entry at an NSZ checkpoint during the
first implementation of the NSZ checkpoints between June 7 and June 12,
2008.1 Each appellant was denied entry in her vehicle on account of her
refusal to provide certain information. Mills refused to provide
personal information regarding her identity and intended activities in
the NSZ, Leaks refused to provide details about her political activity
and intended community organizing, and Sloan refused to provide
information about a political meeting she wished to attend.
In a press conference held on July 19, 2008, MPD Police
Chief Cathy Lanier stated that she would continue to utilize NSZs
“until a judge orders [her] to stop.” On June 20, 2008, the
appellants filed a class action complaint seeking declaratory,
injunctive, and compensatory relief. The appellants asserted that the
NSZ checkpoints constituted unconstitutional seizures in violation of
the Fourth Amendment. The district court denied the appellants’ motion
for a preliminary injunction, holding that the appellants failed to
establish irreparable harm or a likelihood of success on the merits.
This appeal followed.
II. ANALYSIS
Appellants argue that the district court erred in denying
their motion for a preliminary injunction against the District’s
imposition of the NSZ Program. To prevail, appellants “must ‘demonstrate 1) a substantial likelihood of success on
the merits, 2) that [they] would suffer irreparable injury if the
injunction is not granted, 3) that an injunction would not substantially
injure other interested parties, and 4) that the public interest would
be furthered by the injunction.’” Katz v. Georgetown Univ., 246 F.3d
685, 687-88 (D.C. Cir. 2001) (quoting CityFed Fin. Corp. v. Office of
Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)). A district court
must balance the strength of a plaintiff’s arguments in each of the
four elements when deciding whether to grant a preliminary injunction.
“If the arguments for one factor are particularly strong, an
injunction may issue even if the arguments in other areas are rather
weak.” CityFed Fin. Corp., 58 F.3d at 747. Accordingly, “[a]n
injunction may be justified, for example, where there is a particularly
strong likelihood of success on the merits even if there is a relatively
slight showing of irreparable injury.” Id. (citing Population Inst. v.
McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986)). “We review a
district court decision regarding a preliminary injunction for abuse of
discretion, and any underlying legal conclusions de novo.” Katz, 246
F.3d at 688. We will overturn any of the district court’s factual
findings only upon a finding of clear error. Cobell v. Norton, 391 F.3d
251, 256 (D.C. Cir. 2004) (citing City of Las Vegas v. Lujan, 891 F.2d
927, 931 (D.C. Cir. 1989)).
A. Likelihood of Success on the Merits
Appellants’ likelihood of success on the merits is
dependent upon the strength of their constitutional challenge to the
checkpoint program. The Fourth Amendment provides that “[t]he right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . .
.” U.S. Const. amend. IV. Without question, a seizure occurs when a
vehicle is stopped at a police checkpoint. Mich. Dep’t of State Police
v. Sitz, 496 U.S. 444, 450 (1990); United States v. Martinez-Fuerte,
428
U.S. 543, 556 (1976) (“[C]heckpoint stops are ‘seizures’ within
the meaning of the Fourth Amendment.”). The Fourth Amendment, however,
only proscribes those seizures that are unreasonable. U.S. Const. amend.
IV. Therefore, this issue turns on whether the stops of the appellants
in connection with the NSZ program were unreasonable.
The constitutionality of police checkpoints is not a new
controversy. Indeed, the courts of the District of Columbia have
previously considered a prior roadblock program by this same police
department in the same Trinidad neighborhood. See Galberth v. United
States, 590 A.2d 990 (1991). There is ample guidance for our review from
the Supreme Court.
In United States v. Martinez-Fuerte, the Court considered
the constitutionality of the suspicionless routine stops of vehicles at
checkpoints on major roads leading away from the border. The Court held
“that stops for brief questioning routinely conducted at permanent
checkpoints are consistent with the Fourth Amendment and need not be
authorized by warrant.” Martinez-Fuerte, 428 U.S. at 566. In the
discussion of the constitutional question, the Court noted that “the
need for [the judgment of a neutral magistrate] is reduced when the
decision to ‘seize’ is not entirely in the hands of the officer in
the field, and deference is to be given to the administrative decisions
of higher ranking officials.” Id. The Court also discussed the reason
for the search, that is, “[i]nterdicting the flow of illegal entrance
from Mexico.” Id. at 552. In the end, while determining that the
checkpoint stops were not unconstitutional, the Court noted that
“[t]he principal protection of Fourth Amendment rights at checkpoints
lies in appropriate limitations on the scope of the stop.” Id. at
566-67. The Court further explicitly declared that “our holding today
is limited to the type of stops described in this opinion.” Id. at
567. Obviously, the facts before the Court in a border protection stop are far different than those before this court today.
However, the Supreme Court has offered further guidance.
In Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court
considered the constitutionality of a police stop that, while not
literally at a roadblock or checkpoint, was sufficiently analogous to
generate an analysis that has been instructive in roadblock cases. In
Brown, cruising police officers stopped two pedestrians, one of whom was
the eventual Supreme Court litigant, in an area with a high incidence of
drug traffic. Although one officer testified that “the situation
‘looked suspicious and we had never seen that subject in that area
before,’” the officers did not offer any specific suspicion or any
reason to believe the subjects were armed. Id. at 49. The police
demanded that the subjects identify themselves. One refused and asserted
that the officers had no right to stop him. The officers charged him
under a Texas statute which made “it a criminal act for a person to
refuse to give his name and address to an officer ‘who has lawfully
stopped him and requested the information.’” Id. In determining the
constitutionality of the stop in that case, the Court offered analysis
instructive in all further cases involving a suspicionless stop
constituting a seizure but short of arrest. The Court concluded that
“[c]onsideration of the constitutionality of such seizures involves a
weighing of the gravity of the public concerns served by the seizure,
the degree to which the seizure advances the public interest, and the
severity of the interference with individual liberty.” Id. at 50-51.
Although we doubt that the checkpoint in this case would have survived
constitutional scrutiny under the Brown analysis, later Supreme Court
pronouncements speaking directly to issues of checkpoint seizure
constitutionality make that result even more clearly compelled.
Most plainly controlling of the case before us is the
Supreme Court decision in City of Indianapolis v. Edmond, 531 U.S. 32
(2000). In Edmond, the Court considered a checkpoint program conducted
by the City of Indianapolis in an effort to interdict unlawful drugs.
Under the stipulated facts of the case, officers operating pursuant to
directions issued by the chief of police would for a limited period of
time stop all vehicles without particularized suspicion, look for signs
of impairment, conduct an open view examination of the vehicle from the
outside, and have a narcotics-detection dog walk around the outside of
each stopped vehicle. After observing that “[a] search or seizure is
ordinarily unreasonable in the absence of individualized suspicion of
wrongdoing,” the Court observed that “we have recognized only
limited circumstances in which the usual rule does not apply.” Edmond,
531 U.S. at 37. The Court recognized that it had in the past upheld the
constitutionality of a checkpoint stop for border protection, see
Martinez-Fuerte, supra, and “a sobriety checkpoint aimed at removing
drunk drivers from the road,” id. (citing Sitz, 496 U.S. 444). But the
Court stressed that “[w]e have never approved a checkpoint program
whose primary purpose was to detect evidence of ordinary criminal
wrongdoing.” Edmond, 531 U.S. at 41. The Court then concluded that
“[b]ecause the primary purpose of the Indianapolis checkpoint program
is ultimately indistinguishable from the general interest in crime
control, the checkpoints violate the Fourth Amendment.” Id. at 48. It
is this rule which governs the present case, and as the purpose of the
NSZ checkpoint program is not immediately distinguishable from the
general interest in crime control, appellants’ argument that the
seizures were unconstitutional appears headed for ultimate victory.
The District argues that the primary purpose of the NSZ
program as found by the district court — deterring violent,
vehicle-facilitated crime — does not fit within the unconstitutional category of checkpoint stops for
purposes “ultimately indistinguishable from the general interest in
crime control.” Instead, the District argues, this case is governed by
Illinois v. Lidster, 540 U.S. 419 (2004). In Lidster, police set up a
highway checkpoint and stopped motorists for the purpose of asking them
for information about a hit-and-run accident that had occurred
approximately one week earlier at the same time and place. One stopped
motorist, Lidster, was arrested for driving under the influence of
alcohol. The Illinois Supreme Court held the stop unconstitutional,
believing that Edmond compelled that result. The United States Supreme
Court made clear that it did not.
The District seizes on language from the Lidster opinion
to argue that that case and not Edmond is controlling. The District
argues that because the Lidster opinion noted that the “general
language” in Edmond should be read “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,” Lidster, 540 U.S. at 424, the NSZ checkpoint stop should
be upheld, as were the inquiry stops in Lidster rather than struck down
as unconstitutional, as were the drug interdiction stops in Edmond. We
think 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.
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.”
Lidster is unlike either one. The police in Lidster were investigating a
crime that they knew to have occurred. They were not looking for
suspects. As the Lidster Court stated, “information-seeking highway
stops are less likely to provoke anxiety or to prove intrusive,” than
the investigative checkpoint considered in Edmond. Id. at 425. As the
Court stressed, “[f]urther, the law ordinarily permits police to seek
the voluntary cooperation of members of the public in the investigation
of a crime.” Id. The Lidster Court then reiterated the longstanding
proposition that “‘law enforcement officers do not violate the
Fourth Amendment by merely approaching an individual on the street or in
another public place, by asking him if he is willing to answer some
questions, [or] by putting questions to him if the person is willing to
listen.’” Id. (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
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.
Refining the argument slightly, the District contends
that the Supreme Court’s category of stops serving “the general
interest in crime control” extends only to seizures actually looking
for evidence of crime as opposed to seizures designed to deter crime.
That argument is unconvincing. Nothing in Edmond limited “the general
interest in crime control” to only those instances where a law
enforcement officer was seeking evidence of a crime. In Edmond, the
Court recognized that a general rule exists that “a seizure must be
accompanied by some measure of individualized suspicion,” 531 U.S. at
41, and that “only limited circumstances [exist] in which the usual
rule does not apply,” id. at 37. The Court stressed that the only
suspicionless checkpoints previously upheld were those checkpoint
programs that were “designed primarily to serve purposes closely related to the problems of policing the
border or the necessity of ensuring roadway safety.” Id. at 41. By
automatically proscribing suspicionless checkpoints with a primary
purpose of serving “the general interest in crime control,” the
Court was concerned with placing a “check on the ability of the
authorities to construct roadblocks for almost any conceivable law
enforcement purpose.” Id. at 42. The District’s argument, however,
turns this paradigm on its head. 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.
Without doubt, the Edmond Court did not intend the
proscription of checkpoints whose primary purpose was “general
interest in crime control” to be limited to those seeking narcotics,
or other evidence. Instead, the Court used the phrase in what would
appear to be its natural and usual sense to include investigation and
deterrence.
Indeed, when this court has been confronted with
constitutional challenges to police checkpoints, it has consistently
treated the purpose of deterring ordinary criminal activity like drug
crime as indistinguishable from the purpose of detecting such activity
in the context of suspicionless roadblocks. See United States v. Bowman,
496 F.3d 685 (D.C. Cir. 2007); United States v. Davis, 270 F.3d 977
(D.C. Cir. 2001); United States v. McFayden, 865 F.2d 1306 (D.C. Cir.
1989). In each case the defendant sought to suppress
evidence obtained at MPD roadblocks. Bowman, 496 F.3d at 686-87;
Davis,
270 F.3d at 981; McFayden, 865 F.2d at 1308-09. In each, the MPD
instituted roadblocks for the stated purpose of regulating vehicle
traffic and safety. See Bowman, 496 F.3d at 691; Davis, 270 F.3d at 981;
McFayden, 865 F.2d at 1308. And, in each, this court explained that
although traffic regulation was a permissible primary purpose for
suspicionless checkpoints, deterrence of drug activity and general drug
enforcement were not. See Bowman, 496 F.3d at 692-93; Davis, 270 F.3d at
980; McFayden, 865 F.2d at 1312-13. As a result, where the district
court had made appropriate findings that traffic regulation, and not
general deterrence, was the primary goal of the stops, this court
affirmed the convictions. See McFayden, 865 F.2d at 1312-13. However,
where the record was insufficient to support a determination of the
primary purpose, the court remanded for further fact-finding. See
Bowman, 496 F.3d at 694-95; Davis, 270 F.3d at 981-82.
In short, appellants’ likelihood of success on the
merits is strong.
B. Irreparable Injury
We further conclude that appellants have sufficiently
demonstrated irreparable injury, particularly in light of their strong
likelihood of success on the merits. See CityFed Fin. Corp., 58 F.3d at
747. The harm to the rights of appellants is apparent. It cannot be
gainsaid 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. As our discussion of the
likelihood of success has demonstrated, there is no such
constitutionally sound bar in the NSZ checkpoint program. It is apparent
that appellants’ constitutional rights are violated. It has long been
established that the loss of constitutional freedoms, “for even
minimal periods of time, unquestionably constitutes irreparable
injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)
(citing New York Times Co. v. United States, 403 U.S. 713 (1971)).
Granted, the District is not currently imposing an NSZ checkpoint, but
it has done so more than once, and the police chief has expressed her
intent to continue to use the program until a judge stops her.
III. CONCLUSION
In short, we conclude that appellants have established
the requisites for the granting of a preliminary injunction. They have
made a particularly strong showing of the substantial likelihood of
success on the merits and that they would suffer irreparable injury if
the injunction is not granted. The district court did not address the
other two elements of the preliminary injunction test. Accordingly, we
reverse the district court and remand for further proceedings.
So ordered.
1. William Robinson was also stopped, and was originally
a party to this action. He has since passed away, however, and is no
longer a part of this case.