RICHARD L. LEON, District Judge.
Four citizens of the District of Columbia ("plaintiffs") have filed a motion for a preliminary injunction to enjoin further implementation of the Metropolitan Police Department's ("MPD's") "Neighborhood Safety Zones" ("NSZ") checkpoint program and to expunge certain information collected by the officers at the first of these checkpoints. Plaintiffs allege that MPD's stopping and questioning of motorists and passengers at the various NSZ checkpoints constituted unconstitutional seizures of each in violation of the Fourth Amendment. Plaintiffs further allege that absent a preliminary injunction they will suffer the irreparable harm of a similar constitutional violation the next time a NSZ checkpoint is instituted. Because plaintiffs have neither demonstrated a substantial likelihood that this checkpoint program is unconstitutional; nor the necessary irreparable harm, the extraordinary relief of a preliminary injunction is DENIED.
A. MPD Special Order 08-06 & June 7-12 NSZ Checkpoints
On June 7, 2008, MPD concluded that violence plaguing the city's Trinidad neighborhood had reached grave proportions. During the preceding year, the neighborhood had been subject to twenty-five assaults involving a firearm, five of which resulted in homicides and six of which involved the use of vehicles. (Decl. of Lamar Greene ¶ 5, June 27, 2008 ("Greene Decl."); Def.'s Opp'n Br., Ex. 5, Request for Establishment of NSZ at 2-3.) In response, and following a particularly tragic triple homicide on May 31, 2008, MPD designated a portion of Trinidad a "Neighborhood Safety Zone" and erected eleven vehicle checkpoints over the course of five days at locations around the zone's perimeter. (Decl. of Cathy L. Lanier ¶ 4, June 27, 2008 ("Lanier Decl. I"); Greene Decl. ¶¶ 4-6, 11.) According to MPD's Chief, Cathy Lanier, the checkpoints "served as a `fence' to keep violent criminals out of Trinidad," rather than "`nets' to capture evidence of ordinary criminal wrongdoing." (Lanier Decl. I ¶ 10.) MPD implemented the checkpoints pursuant to its NSZ checkpoints program, which was established
MPD officers staffing the checkpoints stopped 951 vehicles, of which they allowed 903 to proceed into the neighborhood and denied entry to 48 on account of either the operator's failure, or the operator's refusal, to provide a verifiable "legitimate reason" for entry. (Def.'s Opp'n Br., Ex. 6, NSZ After Action Report at 2.) The Special Order, which governed the officers' conduct, listed the following "legitimate" reasons for entry:
(SO-08-06 # 1 ¶ V.F.3.)
Officers staffing the checkpoints also recorded identifying information on a Stop or Contact Report ("PD Form 76") for each vehicle stopped. (Greene Decl. ¶ 10; SO-08-06 # 1 V.G.7.) For vehicles denied entry, officers were instructed to record the "operator information, vehicle description, vehicle tag number, and reason for denial."
Plaintiffs Caneisha Mills, William Robinson, Linda Leaks, and Sarah Sloan each allege that he or she was stopped at a NSZ
B. Revised Special Orders & July 19-28 Trinidad Checkpoints
On July 18, 2008, nine days after oral argument on this motion, MPD issued a revised Special Order 08-06. (Decl. of Cathy L. Lanier ¶ 6, July 18, 2008 ("Lanier Decl. II"), Ex. 1 ("SO-08-06 # 2").) The revised Special Order included additional language further clarifying the NSZ checkpoint program's purpose and slightly changed the procedures governing the NSZ checkpoints, but did not alter its core aspects as outlined above, except in one respect. Consistent with Chief Lanier's decision after the first NSZ to preserve but not use the information gathered at the checkpoints (Lanier Decl. I ¶ 12.), the revised Special Order expressly provided that no data gathered at NSZ checkpoints and recorded on PD Form 76s was to be entered into any District of Columbia electronic database. (Lanier Decl. II ¶ 6; SO-08-06 # 2 ¶ V.O.13.) Instead, MPD's General Counsel was required to hold all PD Form 76s in a confidential file, absent a court order requiring otherwise. (Lanier Decl. II ¶ 6; SO-08-06 # 2 ¶ ¶ V.0.9.b.5, V.T.3.)
The following day, July 19, 2008, Chief Lanier authorized a second NSZ in the Trinidad neighborhood in response to multiple shootings early that morning by individuals using a vehicle to enter and quickly exit the Trinidad neighborhood. (Def.'s Notice of Filing, July 19, 2008, Attach. 1, Request for Establishment of NSZ at 1-2; Id., Attach. 2, Decl. Establishing a NSZ at 1-2.) On that occasion, more than a halfdozen people had been shot, including a thirteen-year old boy, who later died. (Id., Attach. 3, MPD Information Flyer.) On July 24, Chief Lanier authorized a five-day extension for the second NSZ in response to information received indicating that "the threat of additional and future acts of violence by persons entering Trinidad in motor vehicles to commit such acts remains high." (Def.'s Notice of Filing, July 24, 2008, Attach. A, Decl. Continuing a NSZ.) MPD also issued a second revised Special Order 08-06 to govern the extended NSZ's implementation. (Id., Attach. B ("SO-08-06 # 3").) The second revised Special Order contained additional slight changes to the procedures governing the NSZ checkpoints, but did not further alter its core aspects.
C. Court Hearings Following Revisions to Special Order
On July 30, 2008, the Court held a follow-up hearing to assess the impact of MPD's revisions to the Special Order on
On August 4th, plaintiffs filed notice with the Court that, despite their belief that the revisions to the Special Order did not moot their claims, they would file a supplemental pleading and any supplement to their motion for a preliminary injunction by August 14th. (Pls.' Praecipe Pursuant to July 30, 2008 Status Hr'g.) Plaintiffs thereafter filed a "Supplement Pleading," which recounted in numbered paragraphs plaintiffs' version of the events that they alleged had occurred since their complaint. (Pls.' Suppl. Pleading.) Plaintiffs did not supplement their motion for a preliminary injunction.
On August 20, 2008, the Court held a hearing to determine the impact of plaintiffs' "Supplemental Pleading" on the matter. Due to a continuing concern as to whether the second and third iterations of the Special Order were properly before me, I directed plaintiffs to provide the Court with legal support by August 25, 2008 for plaintiffs' contention that they were. (August 20, 2008 Minute Entry.) In addition, I ordered the District to respond to plaintiffs' initial complaint by August 25, 2008. (Id.) Both plaintiffs and the District duly complied, and upon consideration of plaintiffs' legal memorandum, (Pls.' Filing Regarding Suppl. Pleading.), I concluded that I could treat plaintiffs' supplemental pleading as a supplement to plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 15(d). (Order, Sept. 3, 2008.) I consequently ordered the District to file its response to the supplemental pleading by September 15, 2008, which, of course, it did. (Id.)
"A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)). To prevail on their motion for a preliminary injunction, plaintiffs must demonstrate: (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable injury if the injunction is not granted; (3) that an injunction will not substantially injure other interested parties; and (4) that the public interest will be furthered by the injunction. Katz v. Georgetown Univ., 246 F.3d 685, 687 (D.C.Cir.2001). These factors interrelate on a sliding scale and a court must balance the strengths of plaintiffs' arguments on each of the factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995); St. Croix Chippewa Indians of Wis. v. Kempthorne, 535 F.Supp.2d 33, 36 (D.D.C.2008). If plaintiffs "make a particularly weak showing on one factor. . ., the other factors may not be enough to compensate." Dodd v. Fleming, 223 F.Supp.2d 15, 20 (D.D.C.2002). For the following reasons, plaintiffs have failed to establish either a substantial likelihood of success on the merits or the necessary irreparable harm. As a result, they have failed to meet their considerable burden.
I. Substantial Likelihood of Success on the Merits
To succeed on the merits, plaintiffs would ultimately have to demonstrate that
A. Constitutional Framework
A Fourth Amendment seizure occurs whenever law enforcement officials stop a vehicle at a roadside checkpoint (or "roadblock"). Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Indeed, the Supreme Court has noted that roadside checkpoints, however, brief, intrude on motorists' "right of `free passage without interruption' " and "arguably on their right to personal security." United States v. Martinez-Fuerte, 428 U.S. 543, 557-58, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (quoting Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Because seizures "[are] ordinarily unreasonable in the absence of individualized suspicion of wrongdoing," City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Supreme Court has fashioned a two-step analysis to determine the constitutionality of checkpoints that subject motorists and passengers to suspicionless stops.
First, a court must determine the "primary purpose" of the checkpoint program to determine if it is presumptively unconstitutional. Illinois v. Lidster, 540 U.S. 419, 423-24, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004); United States v. Davis, 270 F.3d 977, 979 (D.C.Cir.2001). In that regard, the Supreme Court has held unconstitutional vehicle checkpoint programs whose primary purpose is merely to "serve the general interest in crime control" (e.g., drug interdiction checkpoints). Edmond, 531 U.S. at 41-42, 44, 121 S.Ct. 447. And although the Supreme Court has not, to date, set a bright line rule for what constitutes serving the "general interest in crime control," it has, by contrast, upheld only a limited number of suspicionless vehicle checkpoint programs.
For example, the Supreme Court has upheld vehicle checkpoints designed to intercept illegal aliens, Martinez-Fuerte, 428 U.S. at 543, 96 S.Ct. 3074, and designed to remove drunk drivers from the road, Sitz, 496 U.S. at 444, 110 S.Ct. 2481, because both serve "special law enforcement concerns." Lidster, 540 U.S. at 424, 124 S.Ct. 885.
If the court determines that the primary purpose of the checkpoint program does not render the program presumptively unconstitutional, it must then asses the "reasonableness" of the checkpoints. Lidster, 540 U.S. at 426-27, 124 S.Ct. 885. In doing so, the court must assess: (1) the gravity of the public concern served by the checkpoints; (2) the degree to which the checkpoints advance the public interest; and (3) the severity of the checkpoints' interference with individual liberty. Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); see also, e.g., Lidster, 540 U.S. at 427-28, 124 S.Ct. 885 (applying Brown test); Sitz, 496 U.S. at 449-55, 110 S.Ct. 2481 (applying Brown test).
Plaintiffs here contend, not surprisingly, that the primary purpose of the NSZ checkpoint program is to serve the District's "general interest in crime control" and, even if it were not, that the program is administered in an unconstitutionally unreasonable manner. (Pls.' Mem. in Supp. Mot. for Prelim. Inj. at 17-19, 24-25.) The District strongly disagrees. It contends that the primary purpose is not to serve its general interest in crime control, but to serve the "non-general law enforcement" purpose of deterring a particular type of violent crime that is facilitated, in part, by the use of automobiles to avoid detection and apprehension. (Def.'s Opp'n Br. at 18, 33-35.) In addition, the District contends that the NSZ program is conducted in a constitutionally reasonable manner: properly balancing the intrusion of the roadblock seizure with the public's strong interest in deterring this type of violent criminal behavior. (Id. at 37-42.) For the following reasons, plaintiffs have not demonstrated a substantial likelihood of success on the merits as to either prong of this constitutional analysis.
B. The Primary Purpose
A vehicle checkpoint program's "primary purpose" is a question of fact that a court must assess at the programmatic level. Edmond, 531 U.S. at 44, 48, 121 S.Ct. 447; Bowman, 496 F.3d at 693-94; Davis, 270 F.3d at 981. Indeed, the D.C. Circuit has cautioned that "finding the primary or predominant purpose will often prove difficult," and the district court must take into account all available evidence. Davis, 270 F.3d at 982. Further, in a suit to enjoin future roadblocks, a court should not "probe the minds of individual officers acting at the scene," but should look beyond the specific circumstances of any one roadblock in determining the "programmatic purpose." Edmond, 531 U.S. at 48, 121 S.Ct. 447; see also Davis, 270 F.3d at 981-82. Here, notwithstanding plaintiffs' arguments to the contrary, the primary purpose is, as a matter of fact, quite clearly set out in a variety of sources, including the Special Order, the NSZ training documents, the Trinidad NSZ authorizing documents, and declarations from Chief Lanier, as well as by the factual circumstances of the Trinidad roadblocks themselves. How so?
First, the Special Order's "purpose" statement offers persuasive prima facie evidence of the NSZ checkpoint program's primary purpose. The Special Order's
(SO-08-6 # 2 ¶ I; SO-08-06 # 3 ¶ I (emphasis added).)
Indeed, the rules governing the NSZ checkpoints corroborate this stated primary purpose. The Special Order requires that a NSZ be established "solely in response to documented crimes of violence occurring within the designated neighborhood."
Thus, the novel question presented in this case is whether this primary purpose to deter violent crime of a specific type is a purpose sufficiently distinct from the District's general interest in crime control to pass muster under the Supreme Court's analysis in Edmond. In my judgment, it is! Indeed, because the NSZ checkpoint program explicitly does not seek to detect ordinary criminal wrongdoing, or apprehend those committing criminal acts, the program's primary purpose is clearly distinct from the District's "general interest in crime control," as that phrase was employed in Edmond.
While both the District of Columbia and the City of Indianapolis in Edmond employed checkpoints to address increased illegal activity, the methods the checkpoints' employed—and in turn the checkpoints' purposes—are materially different. In Edmond, the City of Indianapolis conducted six vehicle checkpoints in August 1998 in an effort to interdict the transportation of illegal drugs. 531 U.S. at 34-35, 121 S.Ct. 447. Officers at the checkpoints asked the operator of each vehicle stopped for license and registration, performed an open-view examination of the vehicle, looked for signs of operator impairment, and walked a narcotics-detection dog around the outside of the vehicle. Id. Indianapolis justified the checkpoint program on account of a severe and intractable drug problem and conceded that "its proximate goal [was] to catch drug offenders." Id. at 41-42, 121 S.Ct. 447 (quoting Edmond v. Goldsmith, 183 F.3d 659, 665 (7th Cir.1999) (noting a related goal of using incapacitation of those caught to deter others)).
The Supreme Court found Indianapolis' drug interdiction checkpoints dissimilar to the sobriety checkpoints previously upheld in Sitz, where the checkpoints addressed an "immediate, vehicle-bound threat to life and limb," and the unique border context crucial to the Court's decision in Martinez-Fuerte upholding border patrol checkpoints. Id. at 43, 121 S.Ct. 447. Instead, because the drug interdiction checkpoints' primary purpose "[was] to uncover
Such justification is not present here. Unlike the program in Edmond, the NSZ checkpoint program's primary purpose is not, in whole or in part, to uncover evidence of ordinary criminal wrongdoing. Officers are instructed to inquire only into the operator's reason for seeking entry to the NSZ. Officers are further instructed that vehicle searches shall not occur absent individualized suspicion generated during the pendency of a stop. Failure or refusal to provide information to the officer is not grounds for suspicion and the officer must allow any operator that does not wish to provide information to turn around and exit the checkpoint (or to enter the NSZ on foot without further inquiry). And whereas the Indianapolis' checkpoints had catching drug offenders as its goal and succeeded in arresting 55 motorists (out of 1,161 vehicles stopped) on that basis, Edmond, 531 U.S. at 34-35, 121 S.Ct. 447, the NSZ program was preventative in nature and resulted in only one arrest during the first Trinidad NSZ.
Finally, plaintiffs argue that even if the NSZ checkpoint program does not have as its primary purpose the detection of ordinary criminal wrongdoing, a primary purpose of deterring violent crime facilitated by motor vehicles nevertheless is indistinguishable from the District's "general interest in crime control." (Pls.' Mem. in Supp. Mot. for Prelim. Inj. at 19.) I disagree. The Supreme Court made clear that "the phrase `general interest in crime control' does not refer to every `law enforcement' objective." Lidster, 540 U.S. at 424, 124 S.Ct. 885 (citing Edmond, 531 U.S. at 44 n. 1, 121 S.Ct. 447). Indeed, in Lidster the Supreme Court upheld the constitutionality of information-gathering highway checkpoints after determining, first, that the checkpoint program's purpose "was not to determine whether a vehicle's occupants were committing a crime" and, second, that individualized suspicion, or lack thereof, had little role to play in that type of checkpoint program. Id. at 424-25, 124 S.Ct. 885 ("Like certain other forms of police activity, say, crowd control or public safety, an informationseeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual."). Here, "fencing out" vehicles that lack a legitimate reason to enter a neighborhood victimized by a spike in violent crime is a public safety objective for which individualized suspicion has little role to play. The NSZ checkpoint program does not have as its primary
B. The Reasonableness of the Roadblock Program
Plaintiffs further contend that even if the primary purpose of the NSZ checkpoint program does not render the program presumptively unconstitutional, the program as implemented does not strike a reasonable balance between the intrusion the checkpoints cause to individual liberty with the public's interest in deterring this type of violent crime. (Pls.' Mem. in Supp. Mot. for Prelim. Inj. at 24-26.) I disagree!
The reasonableness of seizures at vehicle checkpoints is assessed by weighing: 1) the gravity of the public concern served by the checkpoints; 2) the degree to which the checkpoints advance the public interest; and 3) the severity of the checkpoints' interference with individual liberty. Brown, 443 U.S. at 50-51, 99 S.Ct. 2637; United States v. McFayden, 865 F.2d 1306, 1310 (D.C.Cir.1989). While the gravity of the public concern may reduce an individual's liberty interest, see Sitz, 496 U.S. at 451-52, 110 S.Ct. 2481, "the gravity of the threat alone [is not] dispositive of questions concerning what means law enforcement officer's may employ to pursue a given purpose." Edmond, 531 U.S. at 42, 121 S.Ct. 447. Here, the balance on these three factors tips clearly in the District's favor.
i. Gravity & Effectiveness
As to the first factor, plaintiffs concede that "[a] grave situation does . . . exist today in the District of Columbia when it comes to street crime and personal security." (Pls.' Mot. for Prelim. Inj. at 3.) Indeed, the events preceding the District's implementation of the NSZs bespeak the violence that can result when individuals use vehicles to accomplish violent objectives. Combating extremely violent acts that are facilitated by the use of vehicles to enter, and quickly exit, our neighborhoods is undeniably a grave public concern. Cf. Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir.1996) (checkpoints "attempting to deter drive-by shootings" perceived to be connected with drive-up drug purchases "served an important public concern"); Sitz, 496 U.S. at 451, 110 S.Ct. 2481 ("No can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it.").
The closely related second factor— effectiveness—also weighs in the District's favor. On this factor the District need only establish that the method chosen is a reasonable law enforcement technique that furthers the public's interest in deterring this type of violent crime in a "sufficiently productive" fashion. See Sitz, 496 U.S. at 453-54, 110 S.Ct. 2481; Davis, 270 F.3d at 982. It is not for this Court to decide whether the NSZ checkpoints are the best means to advance the public interest identified. Sitz, 496 U.S. at 453-54, 110 S.Ct. 2481. Indeed, considerable deference must be accorded "the government officials who have a unique understanding of, and a responsibility for, limited public resources." Id. at 454, 110 S.Ct. 2481. And while statistical evidence can often be instructive, it is not required to establish a checkpoint's effectiveness and in some contexts is inapposite. Bowman, 496 F.3d at 693 ("`[T]he effectiveness' or expected effectiveness
Here, the NSZ checkpoints are narrowly tailored to serve their stated deterrent purpose. They are high-profile, publicized both in the neighborhood and the media prior to and during their operation. (Lanier Decl. I ¶ 11.) They are required to be well-marked so that motorists are given advance notice that they are approaching a NSZ checkpoint and can decide whether to seek entry. (Id.; SO-08-06 # 3 ¶ V.O.4.) And for those motorists who choose to seek entry, the inquiry made at the checkpoints is tailored only to determine whether the operator has a verifiable "legitimate" reason to enter the neighborhood. Cf. Maxwell, 102 F.3d at 667 (checkpoints designed to deter drive-by shootings by admitting only vehicles with a connection to the neighborhood "were reasonably viewed as an effective mechanism to deter criminal behavior in the barricaded area"). The NSZ checkpoints, accordingly, are a reasonable means to advance the program's deterrent purpose.
Moreover, the limited statistical evidence available to date indicates that the checkpoints are also productive. During the first Trinidad NSZ, four crimes were committed. The District notes that this represents a 13% decrease off the average over the nine previous five-day periods. (Def.'s Opp'n Br. at 37.) Plaintiffs counter that two of the four crimes committed during the Trinidad NSZ were violent crimes, which represents a 10% increase in violent crime over the nine previous five-day periods. (Pl.'s Supp. Br. at 4-5.) The primary purpose of the checkpoints, however, is not to deter crime generally, but to deter violent crime facilitated by the use of a vehicle. And here, no violent crimes involving the use of a vehicle occurred while the NSZ was in effect. (Greene Decl. ¶ 12; Def.'s Opp'n Br., Ex. 6, NSZ After Action Report at 9-10.) The checkpoints, therefore, duly advanced the program's purpose.
The final factor in the Brown reasonableness test requires an analysis of the intrusiveness of the roadblock stops. Here again, the analysis weighs in the District's favor. An individual's expectation of privacy in an automobile and the freedom to operate it wherever one wishes are significantly different from one's expectation of privacy and freedom in one's own home. Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074. In short, the level of intrusion must be weighed in the context
A checkpoint's "objective" intrusion is "measured by the duration of the seizure and the intensity of the investigation." Sitz, 496 U.S. at 452, 110 S.Ct. 2481. Here, as the parties themselves agree, the stops were brief. Indeed, the District contends (and plaintiffs do not disagree) that motorists denied entry are turned away from the checkpoint in a minute or less and those who pass through do so in a matter of seconds. (Sanders Decl. ¶¶ 7-8.); cf. Lidster, 540 U.S. at 427, 124 S.Ct. 885 (upholding stops requiring a brief wait in line and contact with police lasting a few seconds); Sitz, 496 U.S. at 448, 451, 110 S.Ct. 2481 (upholding stops lasting 25 seconds); Martinez-Fuerte, 428 U.S. at 547, 96 S.Ct. 3074 (upholding stops lasting up to five minutes).
The scope of the officers' inquiry for each motorist is also minimal. Officers request identification and proof of the motorist's stated reason for entry sufficient to "verify the accuracy of the reason." (SO-08-06 # 3 ¶ V.L.4.) While that proof could include a telephone number at the address to which the operator seeks entry (which the officer can use to verify the operator's stated reason for entry) or an invitation to a "verified organized civic, community, or religious event" within the NSZ, (Id.), posing such questions is not per se impermissible conduct at a vehicle checkpoint. See Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074 (upholding border patrol stops where motorists were required to "respon[d] to a brief question or two and possibly ... produc[e] a document evidencing a right to be in the United States"). Nor is it unprecedented. Indeed, the Second Circuit in Maxwell v. City of New York faced an almost identical situation and found that a "request for evidence of a legitimate reason to enter [a] barricaded area [is] not significantly intrusive." 102 F.3d at 667 (upholding checkpoint program designed to deter drive-by shootings by only allowing individuals with a legitimate reason to enter the neighborhood).
More importantly, no motorist stopped at a NSZ checkpoint is required to respond to the officer's inquiry. The Special Order specifically prohibits officers from compelling motorists to provide information. (SO-08-06 # 3 ¶ V.L.4.) Failure to provide a "legitimate reason" is not a criminal offense and officers are instructed to allow a motorist to turn away from the checkpoint if the motorist does not wish to submit to the officer's inquiry. (Greene Decl. ¶ 8; Prelim. Inj. Hr'g Tr. at 52:23-25, 53:1, July 9, 2008.) Moreover, motorists are free to park their car outside the NSZ and enter the NSZ on foot without being subject to any law enforcement inquiry. (SO-08-06 # 3 ¶ IV.G.) Indeed, officers are instructed to proactively inform operators denied entry that they have this option. (Greene Decl. ¶ 8; Sanders Decl. ¶ 9.) These facets of the inquiry temper to a significant degree its intrusiveness.
The checkpoints' "subjective intrusiveness" is also minimal. The checkpoints are publicized, posters warn motorists approaching the checkpoint that a stop is
Finally, the NSZ checkpoint program is drafted to minimize the discretion vested with the officers implementing the program. See Brown, 443 U.S. at 51, 99 S.Ct. 2637 (reasonableness under the Fourth Amendment requires that "the seizure... be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers"); Prouse, 440 U.S. at 661, 99 S.Ct. 1391 (finding system of vehicle spot checks unconstitutional on account of "standardless and unconstrained discretion" afforded police officers). The Special Order provides a highly-detailed set of rules governing the preconditions for every NSZ and the conduct of everyone from the Chief of Police to the individual officers staffing the checkpoints. Cf. McFayden, 865 F.2d at 1313 (traffic roadblock minimized discretion where field officers were given specific instructions and stopped vehicles in a "systematic and preplanned fashion"). Moreover, officers are required to complete a training session on the program before they are allowed to staff a checkpoint. (SO-08-06 #3 ¶ IV.D; Lanier Decl. I ¶ 7.) In fact, the only instance where officers retain any significant discretion in executing this program is when an operator's stated reason falls within an ambiguity in the list of "legitimate reasons" for entry. But, because the list is drafted with specificity and is disseminated to the public, the discretion that is necessarily inherent in such a list is quite restricted. Cf. Maxwell, 102 F.3d at 668 (finding instructions that were "detailed as reasonably possible" constitutionally adequate).
Accordingly, for all of these reasons, I conclude that plaintiffs have not established a substantial likelihood that the NSZ checkpoint program subjects motorists to unreasonable seizures in violation of the Fourth Amendment. Having also found that the NSZ checkpoint program does not have as its primary purpose the District's "general interest in crime control," I find that plaintiffs have not established the likelihood of success on the merit s necessary to warrant the extraordinary relief of a preliminary injunction.
II. Irreparable Harm
Plaintiffs next contend that a preliminary injunction is necessary because they otherwise will suffer the irreparable harm of having their constitutional rights violated when, and if, they are stopped during a future invocation of the NSZ checkpoint program. (Pls.' Mot. for Prelim. Inj. at 3.) The District, not surprisingly, disagrees, arguing that it is pure speculation as to when, if ever, the next roadblock may occur, and, in any event, because plaintiffs fail to demonstrate a substantial likelihood of success on the merit s, there is no constitutional violation to enjoin. (Def.'s Opp'n Br. at 11-16.) I agree.
Our Circuit has provided that in cases involving plaintiffs seeking injunctive relief for alleged constitutional violations the plaintiffs' claim for irreparable harm is directly contingent on their showing a substantial likelihood of success on the merits. See Delaware & Hudson Ry. Co. v. United Transp. Union, 450 F.2d 603, 619-20
Our Circuit has set a high standard for irreparable harm. Chaplaincy of Full Gospel Churches, 454 F.3d at 297. Indeed, injunctive relief "will not be granted against something merely feared as liable to occur at some indefinite time." Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (quoting Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931)). In short, plaintiffs must demonstrate that the injury is of such "imminence" that there is a clear and present need for equitable relief to prevent irreparable harm. Id. Past constitutional violations, therefore, are not sufficient alone to satisfy the irreparable harm requirement; the violation must be either ongoing or threatened. Wagner v. Taylor, 836 F.2d 566, 576 n. 76 (D.C.Cir.1987); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 301; Veitch v. Danzig, 135 F.Supp.2d 32, 37 (D.D.C.2001); Hamlyn v. Rock Island County Metro. Mass Transit Dist., 960 F.Supp. 160, 163 (C.D.Ill.1997) ("[T]hose cases which have held that a constitutional wrong constitutes an irreparable injury involve some continuing or future injury ....") (citing cases). They have not done so here.
Simply stated, this court is in no position to predict when the factual preconditions for a NSZ roadblock, which are considerable, will again exist, if ever.
Finally, with respect to the data gathering and storage practices permitted in the first Special Order but prohibited thereafter, plaintiffs have not established a substantial risk that MPD will re-institute those practices if a future NSZ roadblock is established. While the District's prohibition of this practice does not per se moot plaintiffs' challenge to the District's data collection practices on the merits, City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) ("It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice."), plaintiffs have not established a credible threat that the District will, during the pendency of this litigation, reverse course and engage in practices it presently prohibits. For this reason, to the extent plaintiffs have not already withdrawn their request for a preliminary injunction requiring the District to expunge all data collected to date, such request is also denied.
III. Public Interest and Public Injury
Finally, having failed to establish either a substantial likelihood of success on the merits or irreparable harm, the Court finds no need to engage in an analysis of the remaining factors. 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
Thus, for all of the above reasons, the Court DENIES plaintiffs' Motion for a Preliminary Injunction. An appropriate Order will issue with this Memorandum Opinion.