Federal Court Allows ACLU Case Challenging Border Patrol’s Use of Checkpoints to Proceed

Affiliate: ACLU of Maine
April 9, 2021 9:00 am

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CONCORD, N.H. – The federal district court in New Hampshire is allowing an ACLU lawsuit challenging Customs and Border Protection’s (CBP) immigration checkpoints in New England to proceed. While an individual CPB agent was dismissed from the case, the court rejected CBP’s argument that the case against CBP should be dismissed.

In its decision, the court rejected CBP’s motion to dismiss the case: “Given the recent and recurring history of checkpoints on I-93 in New Hampshire, [the Chief Border Patrol Agent’s] acknowledgment of the checkpoints’ importance to the agency in carrying out its duties, and the extensive planning and approval process that went into the 2017 reinitiation of checkpoints in New Hampshire, the court cannot conclude from the mere fact that no checkpoints are currently scheduled that additional checkpoints are unlikely.”

“Allowing this case to move forward is critical to stopping CBP’s unconstitutional practice of using immigration checkpoints to unlawfully search and seize people in New Hampshire and across New England,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire.

“It is unconstitutional under the Fourth Amendment for CBP to use interior checkpoints, nearly 100 miles from the border, as a ruse to unlawfully search and seize people for the purpose of general crime control. Yet this is exactly what CBP is doing with checkpoints in northern New England,” said Emma Bond, legal director of the ACLU of Maine. “We are pleased that we can proceed with our case to have these unconstitutional practices addressed in court.”

“In addition to being unconstitutional, these checkpoints offend basic notions about what it means to live in a free society,” said Lia Ernst, ACLU of Vermont senior staff attorney. “People in this country should not have to answer to armed and unaccountable federal agents while they are going about their daily business. Border Patrol is a rogue agency, but it is not above the law.”

As part of these immigration checkpoints, CBP has detained hundreds – if not thousands – of individuals lawfully traveling in northern New England during the summer and fall tourist seasons without any suspicion that they have committed a crime. On August 11, 2020, ACLU affiliates in New Hampshire, Maine, and Vermont filed this federal lawsuit challenging the use of unconstitutional border patrol checkpoints that frequently occur on I-93 in Woodstock, New Hampshire and elsewhere in northern New England. The case was also brought by Scott Harris, Steven Dutton, and Jeremy Walker of McLane Middleton, as well as Mark Sisti and Albert “Buzz” Scherr.

The ACLU affiliates, with client Jesse Drewniak, argue these checkpoints – conducted for the primary purpose of general crime control and drug interdiction – are beyond the scope of CBP’s authority. The lawsuit also asks that the court immediately stop CBP from conducting these illegal checkpoints in Woodstock — a small town (population 1,374) in the White Mountains that is approximately 90 driving miles from the Canadian border.

Drewniak, a United States citizen residing in Hudson, New Hampshire, was one of the persons ensnared in an August 2017 checkpoint in Woodstock. He was travelling home from a fly-fishing trip in the White Mountains, where he frequently goes during fishing season to fish, forage, hike, and swim.

This federal lawsuit follows a major ACLU victory that stemmed from illegal searches and seizures that occurred during the August 2017 checkpoint in Woodstock. In that case, sixteen people who were charged with the violation-level offense of possessing small amounts of drugs for personal use (mostly marijuana) – including Drewniak – challenged the checkpoint’s constitutionality. In May of 2018, the Plymouth Circuit Court concluded that “the primary purpose of the [August 2017 checkpoint] was detection and seizure of drugs,” thereby making the checkpoints “unconstitutional under both State and federal law.” As a result, the Court suppressed all evidence obtained from the checkpoint. The State then dismissed all charges against the 16 individuals in September of 2018.

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