On the dubious constitutionality of DPS roadblocks

The Austin Statesman has more on roadblocks conducted in the Rio Grande Valley last month by the Texas Department of Public Safety and the possibility that courts could find them unconstitutional ("Follow up: Could DPS checkpoints face legal challenge?" Oct. 29). Courts have ruled that roadblocks are acceptable to check for drivers licenses and to verify insurance but unconstitutional for general crime fighting purposes (see prior Grits coverage here and here). Here's a notable excerpt from the Statesman story:

The checkpoints were part of an initiative dubbed "Operation Strong Safety," aimed squarely at the question of border insecurity.

"Combating criminal activity in the RGV was the primary goal of Operation Strong Safety, as well as taking back the border from the ruthless thugs operating in that area," DPS Director Steven McCraw said in an Oct. 24 release. The operation also included round-the-clock patrols that were "sustained until the cartels were forced to curtail their drug and human smuggling operations in the targeted area."

Yet the checkpoints apparently were not meant to be part of that particular effort,  but rather were aimed at curbing "unsafe driving practices," according to the agency. Before the operation was launched, DPS said the checkpoints were conducted to improve roadway safety.

But an American-Statesman analysis this month found that the locations where DPS set up the roadblocks were far less dangerous than other parts of the state. Rates of fatal crashes in Hidalgo and Cameron counties lagged well behind other metro areas. Based on crashes per vehicle mile traveled, a statistic commonly used to calculate safety rates, the Rio Grande Valley trails far behind cities like Lubbock, Laredo, Houston and Midland, and has crash rates comparable to Central Texas and the Dallas area.

DPS also pointed to high numbers of uninsured and unlicensed drivers as a reason for concentrating the stops in the area. But according to the Texas Department of Insurance, Dallas, San Antonio and Houston all have significantly higher numbers of uninsured drivers than Hidalgo and Cameron counties.

Jeremy Schwartz's story reacts to a DPS press release that explicitly framed the roadblocks in terms of a broader effort in the Valley to crack down on drug cartels. To me, this is further evidence that DPS is using the checkpoints to combat general criminal activity, not only for driver-license and insurance checks. As Grits wrote when the story first came out.

These are pure "pretext stops." McCraw's first justification given for the checkpoints was a response to "various criminal activity"; the rest are excuses, not reasons. The 2011 Texas case he cites overturned a lower court opinion out of El Paso forbidding the tactic. They upheld the checkpoint even though drug-sniffing dogs were deployed to check every car.

So basically, Texas law enforcement may use license and insurance checks as a fig leaf to justify a tactic that, in my youth, was associated in the public discourse mainly with totalitarian Communist states. Growing up, I can well remember my attorney father associating this practice with Communist Russia ("Show me your papers, comrade," was a running household joke) and proudly contrasting it with the "freedoms" enjoyed in America where, he naively believed, such disgraceful abuses by government would never be allowed.

Even the Texas Court of Criminal Appeals majority in 2011 granted that "A checkpoint to verify drivers' licenses and vehicle registration is permissible, but a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is not." But how to distinguish "primary" from secondary purposes? Here, responding to "various criminal activities" was McCraw's first justification, with the license and insurance checks offered up afterward more as an excuse than a reason. But under the CCA holding, they get to do it until some federal court calls them on it.

DPS may have gotten away with this charade for now, mainly because the roadblocks weren't widely publicized until after they were all but completed. But if the agency escalates their use I would indeed expect court challenges. Indeed, I'd love to see someone caught up in the RGV roadblocks appeal their case on the grounds of the tactic's unconstitutionality. DPS has now explicitly said the roadblocks were part of a broader crime fighting strategy and I doubt their general counsel or public relations staff would be foolish enough to frame them that way in future cases. I'm amazed they've done so this time.