Orin Kerr, back from his debauchery in New Jersey, has started to dissect the DC Checkpoint plan.  This plan is ‘for a ‘military style checkpoint’ to stop gun violence” by having cops stop every car entering a cordoned off neighborhood, delightfully called a “Neighborhood Safety Zone” (because “Loss of Constitutional Rights Zone” doesn’t sounds nearly as appetizing).

According to the Washington Post :

The checkpoint will stop vehicles approaching the 1400 block of Montello Avenue NE, a section of the Trinidad neighborhood that has been plagued with homicides and other violence. Police will search cars if they suspect the presence of guns or drugs, and will arrest people who do not cooperate, under a charge of failure to obey a police officer, officials said.

Orin concludes that under existing precedent, this scheme is unconstitutional.  But since I’m less of a slave to precedent (and don’t believe that judges are nearly as careful in parsing precedent as Orin does), I’ve got a different beef.

Since when does anyone have to explain to a cop why he wants to drive his car into any neighborhood in America?  We are endowed with the right to travel freely throughout these beautiful United States.  We need not obtain the permission of the police to take scenic drives through bucolic downtown Washington, D.C.  And most importantly, we do not need to answer the questions posed by police officers when there is no basis to believe that we, specifically and individually, have done anything wrong.

Orin’s second post on the plan expands his view of what’s wrong with this hair-brained scheme.  Clearly, the hangover is abating.

Can a police officer order you to move along — that is, to leave the area — without any suspicion that you’ve committed a crime?

Also,

What are the Due Process limits on criminalizing failure to obey an officer? In particular, is there a constitutional requirement that the person understands that failure to obey is a crime? Citizens generally have no idea when they have to do what an officer tells them to do, and I would think there is some sort of Due Process requirement of fair notice that the order has to be obeyed before an arrest can be made.

Now we’re getting somewhere.

Just because some cop somewhere decides that whatever pops into his head at any moment becomes good cause for arresting otherwise law-abiding citizens does not give rise to a legitimate arrest.  The power to arrest is huge.  The power to take away our freedom is huge.  But this goes even farther.  Let’s say some poor fool disagrees with an officer’s decision that his explanation (as if he owed the cop an explanation) for being somewhere is inadequate.  The cops decides that he’s going to arrest this person who has done nothing more than refuse to surrender his citizenship to this cop.  The cop in turn decides that this fine motorist needs a little tuning up. 

The story ends with citizen beaten, arrested and imprisoned, all because he took umbrage with being told that he is not entitled to drive down a road built with taxpayer funds unless he OBEYS a police officer, is dutifully obsequious and satisfies this cop with his explanation.  Mind you, this isn’t happening in Moscow or Beijing, but in the cradle of freedom, Washington, D.C.

I’m sure that Orin will see, as soon as he removes that silly-looking orange and black beanie cap with the propeller on top that’s covering his blood-shot eyes, that this isn’t merely wrong because it nips around the edges of some precedent or raises questions of adequate notice.  This is a fundamental wrong, flying smack in the face of basic freedoms. 

Why do we keep thinking that cops get to make us do anything they want, and we must obey?  We really have to resist this very dangerous notion that they are the rulers and we are the ruled.