Editor’s Note: This article first appeared in the NMA’s Driving Freedoms Magazine in the Fall of 2020. If you would like to receive the NMA’s quarterly magazine, join the NMA today!
First of all, what is the difference between a roadblock and a checkpoint?
A roadblock is a barricade set up by law enforcement to stop selectively and question motorists. A checkpoint is typically located at a border barrier or staffed entrance, where travelers are subject to security checks; similar but different functions. Many times, though, the two terms are used interchangeably.
As designed, these police actions result in fear, intimidation, and inconvenience for the purpose of implementing a government mandate or a political agenda. For drivers uncertain of their constitutional rights, enforcement stops can be used to circumvent probable cause to stop, interrogate, and search occupants of motor vehicles.
So, have checkpoints gone too far in the time of the COVID-19 crisis?
As Americans, we have always cherished a free and open society built on individual liberty and personal responsibility. With the increased use of enforcement checkpoints and roadblocks, however, our country is in potential danger of tilting toward totalitarianism.
The US Supreme Court has ruled that roadblocks set up by law enforcement must have a specific purpose outside of the normal intent of preventing crimes. To that end:
- The state must have a strong interest in that purpose.
- The roadblock must be an effective way to achieve that purpose.
- The roadblock cannot excessively intrude on the privacy of innocent individuals stopped in the roadblock.
Warning drivers of potential danger ahead and seeking information about a specific crime to protect the public fits this definition. In 1990, the high court ruled that sobriety checkpoints are constitutional, but that ruling is tenuous. Several states have banned such enforcement actions after determining the opposite.
That brings us to current times when a public health crisis is raising new questions.
Due to the COVID-19 emergency, the once unthinkable has happened. Since March, many states have set up checkpoints to discourage travelers from other states from crossing their borders.
Constitutionally, state officials cannot prohibit interstate entry, but they can require a 14-day quarantine or a statement of purpose. Law enforcement experts say that using police and, in some cases, the National Guard to set up COVID-19 checkpoints is extraordinary.
According to legal experts, impeding citizens’ travel based on a license plate, even if they are eventually allowed to cross the state line, is unconstitutional. Former Connecticut Police Chief and now University of New Haven Criminal Justice Master’s Program Director John DeCarlo told the Washington Post in an interview, “To stand at the border and refuse entry to another American citizen is something that I would say was unprecedented. Certainly, legal scholars will be looking at this and asking a lot of questions.”
State and local governments and police have broad power in a public health emergency—including the authority to order a quarantine. But the current public health emergency runs into a citizen’s right to free travel. Georgetown Law Professor Meryl Chetoff explained, “The problem here is that you don’t know who is infected. If we get to the point where there’s rapid testing, then they could set up roadblocks and run a spot-test and turn people around who are sick. But in the absence of that, these roadblocks are way overbroad and are interfering with the right to travel.”
Here are a few examples of the types of interference motorists have experienced in the last six months.
At the beginning of the pandemic crisis, police set up checkpoints for people entering the Florida Keys and North Carolina’s Outer Banks. Motorists had to produce ID, and if they did not have a local address or proof of residency, they were not allowed to go any farther. These restrictions drew many complaints and at least one lawsuit in the Tarheel State. Vacation homeowners claim they had the right to visit their properties since they pay property taxes even if they do not live in the area full time.
In May, out-of-state travelers driving into Newport County, Rhode Island, were asked to stop at an informational checkpoint in Jamestown before crossing the Newport Pell Bridge. Both the RI State Police and National Guard manned the checkpoint from 8:00 AM to 8:00 PM every day to advise motorists of the self-quarantine order. State police stopped drivers who bypassed the requirement. ACLU Rhode Island Executive Director Steven Brown said, “A two-week quarantine solely for the ‘offense’ of coming from out-of-state, and with no opportunity to contest this demand, is deeply troubling. In addition, targeting out-of-staters like this can only promote a divisive ‘us vs. them’ mentality that encourages the vilification of others.”
The Taos County Sheriff’s Office operated checkpoints on July 9th and 10th at the New Mexico-Colorado border. New state pandemic restrictions had been imposed just before the crackdown. Deputies checked drivers first for intoxication and then informed them of the state’s new health mandates. Sixteen-hundred vehicles were stopped, only half of which had out-of-state license plates.
In August, the New York City Sheriff’s Office established random checkpoints at major bridge and tunnel entrances. Deputies did not pull over every vehicle with an out-of-state license but instead pulled cars over at random. At that time, the state required travelers from 28 states, and three US territories considered COVID-19 hotspots to fill out contact forms and quarantine for two weeks. Out of the 3,000 vehicles stopped on August 5, only two travelers received a summons for failure to fill out a contact form. The deputies also handed out 12,000 masks to drivers and passengers. Sheriff Joseph Fucito said in a New York Post article, “Compliance with the quarantine is our objective.” NYC Mayor Bill de Blasio said that the travel crackdown will continue indefinitely and could become even stricter if necessary.
Constitutional scholars have differing opinions on whether the federal government has the legal authority to issue health and safety orders that supersede state directives involving travel. The principle of individual privacy has repeatedly been diluted and undermined under the auspices of safety, national security, and crime prevention. Stopping travelers due to the coronavirus pandemic is a recent action, but it is not the only type of checkpoint that can impact a driver’s rights on the road.
Customs and Border Patrol Interior Checkpoints
On August 11, 2020, the American Civil Liberties Union affiliates in Maine, New Hampshire, and Vermont filed a lawsuit that accuses federal border patrol agents of routinely conducting illegal checkpoints many miles from the US border. The complaint states that patrol agents are using interior checkpoints for general crime control and not immigration enforcement. Thousands of motorists traveling in northern New England have been detained without probable cause. Vermont ACLU Senior Staff Attorney Lia Ernst said, “In addition to being unconstitutional, these checkpoints offend basic notions of what it means to live in a free society. People in this country should not have to answer to armed and unaccountable federal agents while going about their daily business.”
The New Hampshire ACLU lawsuit was filed on behalf of Jesse Drewniak, a US citizen. In August 2017, he drove home from a fly fishing trip and was stopped at a border patrol checkpoint on Interstate 93 in Woodstock, NH—approximately 90 miles from the Canadian border. In a statement, Drewniak said, “I found the checkpoint to be terrifying and dehumanizing.”
CBP officers charged Drewniak and 15 others for possessing a small quantity of drugs (mostly marijuana). In the criminal trial, the ACLU argued that the primary purpose of such checkpoints was to detect and seize drugs, a role beyond the patrol’s authority. A federal judge agreed that the searches were unconstitutional and moved to suppress all evidence. The charges against all 16 defendants were dismissed.
The ACLU Maine, Vermont, and New Hampshire lawsuits challenge the notion that the Border Patrol can legally stop and search travelers without a warrant or reasonable suspicion within 100 miles of an international boundary or coastal body of water. This 100-mile area covers 90 percent of Vermont and, nationally, a population base of nearly 200 million people.
Check out the following NMA Resources on Checkpoints and Roadblocks.