# Maxwell v. City of New York > Court of Appeals for the Second Circuit · December 17, 1996 · 102 F.3d 664 URL: https://www.frixlaw.com/law-library/cases/6943749 ## Case - **Full name:** Winfred L. MAXWELL v. CITY OF NEW YORK the New York City Police Department Timothy Morley, Police Officer Angel DeJesus, Police Officer Monserrate Badillo, Police Officer Davie Arroyo, Police Officer Daniel Gonin, Police Sergeant Richard Van Leuvan, Police Sergeant and George Vasta, Police Detective, William Bratton, as Police Commissioner of the New York City Police Department Thomas Kelly, Police Lieutenant Philip Lee, Police Inspector and Thomas Gallagher, Police Chief - **Court:** Court of Appeals for the Second Circuit - **Decided:** December 17, 1996 - **Citations:** 102 F.3d 664; 1996 WL 722026 - **Precedential status:** Published - **Opinion:** Dissent by Oakes - **Judges:** Oakes, Walker, Winter - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6943749 ## How later opinions describe it (automated extraction) - finding objective intrusion slight when detention was brief and questions were “aimed solely at ascertaining” information related to the checkpoint’s legitimate purpose - finding instructions that were “detailed as reasonably possible” constitutionally adequate - noting that “checkpoints similar to the one here had been effectively used in the past by the New York City Police” ## Opinion text OAKES, Senior Circuit Judge, dissenting: I find it surprising that the majority holds — particularly at the sümmary judgment level — that the police operation here in question does not implicate the Fourth Amendment. I have long agreed with the thesis put forth by Professor Anthony Amsterdam in his Holmes Lectures at the University of Minnesota Law School 1 that “the Fourth Amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds.” 2 Accordingly, I dissent. The majority characterizes this as a stop by police “at a barricaded vehicle checkpoint.” But the “checkpoint” here is quite different from the sobriety checkpoint upheld in Michigan Department of State Police v. *669 Sitz, 496 U.S. 444 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990), or the alien checkpoint initially upheld in United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976). While the district court and the majority here may ultimately be upheld in evaluating the scheme in question under the three-pronged balancing test enunciated in Brown v. Texas, 443 U.S. 47, 50 , 99 S.Ct. 2637, 2640 , 61 L.Ed.2d 357 (1979) (gravity of crimes alleged to require checkpoint, effectiveness of checkpoint in curtailing crimes, and level of intrusion on drivers’ privacy caused by checkpoint), appropriate balancing and other analysis requires a more specific account of what this procedure involved. The Operation in question functioned only between August and October, 1992, and was known as the “Watson Avenue Special Operation” in the Bronx’s 43rd Police Precinct. It was developed with the goal of combatting, in a specific eight-square block area, various crime problems including drug trafficking, robberies, and random drive-by shootings. The Operation occurred three days per week on a random basis for approximately seven hours a day between approximately 4 o’clock in the afternoon and 11 o’clock at night, until September 23,1992. It was then extended until October 10, and on selected days ran as late as 2 a.m., because drug dealers had adjusted their activities to avoid coinciding with the Operation. It involved police barricades which were erected in a “frozen zone” between Watson Avenue and Westchester Avenue, including the side streets from Stratford Street to Elder Street, and including also the side streets Manor, Ward, and Boynton between Strat-ford and Elder. All motorists seeking access into the frozen zone encountered the manned police barricades, and while appellants’ brief asserts, and the district court found, that drivers who wished to avoid any police interrogation could drive around the area blocked by the barriers, there was no access point enabling a driver to enter the frozen zone without first being stopped by a barricade. The plaintiff alleges that he, a former New York City police officer, was seeking to visit his daughter who lived within the zone, and he was accompanied by a passenger who lived within the zone. So, let it be very clear that what we are talking about is a cordoned-off area — to be sure, a high-crime area as well — that anyone wishing to enter had to be permitted to pass through by the police officers on duty. Additionally, since markings were not posted on the roads leading up to the checkpoints, motorists had no actual knowledge of the particular checkpoint until approaching the barricades. What were the rules by which this Operation was set up? The July 30 memorandum by Police Lieutenant Kelly, the apparent architect of the Operation, provided that “barriers will be set up on side streets feeding into Watson Avenue in order to discourage drive-up purchasers from patronizing local dealers. Area residents will be allowed to enter the target area....” There were no written standards explaining which persons could and could not enter the frozen zone other than that memorándum and a memorandum of August 24, 1994, from the 43rd Precinct Commander DeRienzo to detail supervisors. That latter memo advised: “Supervisors will inform Officers manning barriers that area residents will be allowed to pass through the area, as well as delivery trucks. Those individuals who do not have a legitimate reason to enter will be instructed to utilize other routes_” Needless to say, what was or was not a “legitimate reason” depended upon the field officer’s subjective evaluation. This was conceded by Kelly himself, who also conceded that a motorist could be denied access even if the officer lacked probable cause or reasonable suspicion to believe that a vehicle’s occupants were engaged in crime; in other words, motorists could not enter the frozen zone unless they “could come up with a reasonable excuse” as to what they were going to do in the area. Thus, law abiding citizens — you or I — could be turned away at the checkpoint officer’s discretion, while even passengers in a car fitting a description of drive-by shooters might be allowed to pass if the driver said he was visiting a friend in the area and could provide his friend’s correct address. On the positive side, a delivery truck, a car full of children, a vehicle driven by a local store owner, or a car dropping off visitors to a local church might be allowed to pass through the barricade even if the driver lacked adequate *670 documentary proof that he lived in the neighborhood. These; at least, were examples given at rollcall by Kelly of non-residents who would be allowed vehicular entry into the frozen zone. Sergeants were instructed that the barricade had to be manned and “if ... the officers assigned had a question, they would handle it.” The Bronx Borough Commander testified that “it’s basically a subjective determination made by the officer as to which persons would be let in.” A supervising sergeant testified that a motorist would be denied access “if he started giving a cock- and-bull story,” and added that, “[i]t just comes down to the officer’s preference.” The purpose of the barricade was, as he said, “to keep people you don’t want in, out.” Another supervising sergeant testified that the checkpoint officer would have to use “discretion ... to size up the situation” while the motorist seeking entry “would have to convince the officer it was a legitimate visit.” Indeed, the sergeant who gave operating instructions to the young, inexperienced police officer who stopped the plaintiff-appellee in this case testified that he had not received guidance from architect Kelly in the use of discretion, and, in turn, the sergeant did not offer such guidance to the officers under his supervision. The arresting officer himself testified that he was not instructed how to reply if a motorist stated that he or she did not live in the zone but was visiting a friend or relative. He said he guessed he would let such a person through if the motorist agreed to provide his license and registration and his friend’s address within the zone, but he didn’t know the answer to the question whether he would let the person through if the motorist refused to provide the friend or relative’s name. The district court, in denying summary judgment on the plaintiffs ninth claim seeking monetary damages for the alleged violation of his Fourth Amendment rights, found that “the facts as currently presented relating to the second [Brown v. Texas ] inquiry in this three-part test—the effectiveness of the checkpoints—are incomplete and in dispute,” thereby holding that the cross-motions for summary judgment should be denied. While the Supreme Court in Sitz, 496 U.S. at 454 , 110 S.Ct. at 2487 , made it clear that an in-depth statistical examination of a checkpoint’s “effectiveness” is not warranted, there still must be some means beyond subjective evaluations by neighborhood residents of measuring whether the checkpoint reasonably advanced its stated purpose. While I agree with Judge Mukasey that only after trial could a factual determination properly be made and that portion of the test correctly be applied, and indeed until the threshold question of whether a “seizure” actually took place is resolved, it would be impossible to determine whether the frozen zone here could pass constitutional muster. However, I agree with plaintiff-appellee that entrance to the frozen zone was left to the arbitrary determination of officers in the field with no meaningful written standards of how to exercise their discretion: the “legitimate reason to enter” mentioned in the August 24 memorandum is another way of saying that the individual officer had total discretion. And it is this unfettered discretion that makes the majority’s resolution of the case, in my view, totally unsound. I say this because it seems to me that the Fourth Amendment is — or, in any event, should be — about controlling such discretion. This is a point I have tried to make in several opinions, the first for the court in a border stop case, United States v. Barbera, 514 F.2d 294 (2d Cir.1975), as well as in dissent in an airport search case, United States v. Vasquez, 612 F.2d 1338, 1352 (2d Cir.1979), and in concurrence in another airport search case, United States v. Place, 660 F.2d 44, 53 (2d Cir.1981), aff'd 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983). 3 I have also made the point in other contexts that involve the “exigent circumstances” exception in United States v. Cattouse, 846 F.2d 144, 148 (2d Cir.1988) (dissent); United States v. Martino, 664 F.2d 860, 878 (2d Cir.1981) (concurrence) (“To the individual law enforcement officer,. the circumstances for a warrantless search and seizure always ap *671 pear exigent,”) and bus stop searches in Buffalo, United States v. Glover, 957 F.2d 1004, 1015 (2d Cir.1992) (dissent). What I am concerned about is the taking of an “atomistic” approach to the Fourth Amendment as opposed to a “regulatory” approach. Amsterdam, supra n. 1, at 438. In effect, this leaves, in James Otis’s phrase, “the liberty of every man in the hands of every petty officer.” See Legal Papers of John Adams, 168 (1965). I do not think that the Fourth Amendment is simply a “collection of protections of atomistic spheres of interest of individual citizens,” Amsterdam, supra n. 1, at 367, but, rather, that it should be treated as “a regulation of governmental conduct.” Id. In other words, I think that when the Fourth Amendment speaks of “[t]he right of the people,” it is not talking about simply the personal rights of isolated individuals but may well be speaking of “the people” as in “We, the People.” The true purpose of the Amendment is to control the police when police techniques are susceptible to making unwarranted intrusions on the person being interrogated, investigated, stopped, or whatever. To my mind, the decision today goes a long way toward putting the stamp of judicial approval on overly-discretionary police practices. Unfortunately, it does so unnecessarily because here the factual record was, in a very capable district judge’s view, insufficiently developed to permit coming to sound conclusions in several respects. In this sense, the majority is essentially giving the New York City Police Department a judicial blank check to conduct similar “special operations.” . Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349 (1974) (criticizing Court decisions holding, in effect, that "whether you and I get arrested and subjected to full-scale body search or are sent upon our respective ways with a pink multiform and a disapproving cluck ... depends upon the state of the digestion of any officer who stops us — or, more likely, upon our obsequiousness, the price of our automobiles, the formality of our dress, the shortness of our hair or the color of our skin.”) Id. at 416. . Id. . Reference here should be had to Judge George Pratt’s dissent in United States v. Hooper, 935 F.2d 484, 499 (2d Cir.1991). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6943749. Public record. Not legal advice.