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.
2
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
3
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
4
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
5
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
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.
6
‘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
7
(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
8
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.
9
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
10
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
11
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
12
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.
13
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
14
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.