Border area checkpoints raise questions of intent

When it announced last month it would begin stopping motorists at randomly placed roadblocks throughout the Rio Grande Valley, the Department of Public Safety cited roadway safety as the rationale for conducting its first regulatory checkpoints in two decades.

The tactic came as a surprise to many. State troopers hadn’t conducted such checkpoints since at least 1994, when a Texas court effectively prohibited most law enforcement roadblocks in the state.

Since then, legislators have consistently rejected attempts to expand the legal authority for them. And while a 2011 court ruling reopened the door to so-called regulatory checkpoints, where officers check for valid licenses, insurance and registration, state and federal courts have strictly limited their use.

In a release announcing the operation, DPS officials said the unusual measure was necessary in the Rio Grande Valley, in particular, because of “unsafe driving behaviors” and the “number of vehicle crashes” in the region. The agency set up numerous roadblocks in late September and early October as part of a wider law enforcement surge in the Rio Grande Valley.

But an American-Statesman analysis of Texas Department of Transportation data shows that the counties singled out by DPS — including Hidalgo and Cameron — have low crash rates compared with several other population centers in the state. 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 spokesman Tom Vinger said crash data was not used as a deciding factor for the checkpoint locations, and instead emphasized their use in targeting unlicensed and uninsured drivers. According to DPS, the area, which has large numbers of undocumented immigrants, led the state in no driver’s license citations and is second to Houston for no insurance tickets.

But while studies have found unlicensed drivers generally have more fatal crashes than licensed drivers, both Hidalgo and Cameron counties had fatal crash rates below the state average in 2012, based on per capita crashes , which are used by the National Highway Traffic Safety Administration to measure public health impact. Statistics provided by the state using the vehicle miles traveled metric, Cameron ranks 33rd out of 39 counties with more than 100,000 residents, while Hidalgo ranks 13th.

And 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.

Law enforcement officials in the Rio Grande Valley have praised the operations, saying they have helped track down drivers with outstanding warrants and unpaid traffic tickets, as well as free up local officers for more investigative work.

And DPS has taken an aggressive stance in defending the checkpoints. The agency said the reason for the tactic is straightforward: “(T)he goal of enforcing traffic regulatory compliance is to make the roadways safer for all travelers.”

On Saturday, the San Antonio Express-News reported that DPS has stopped using the checkpoints and discontinued a broader enforcement push in the Valley.

Some border officials had questioned whether the department’s stated reason for installing checkpoints in the Rio Grande Valley was genuine. “Where are the checkpoints in Houston?” asked Rep. Terry Canales, D-Edinburg, pointing to Harris County, which ranks first among Texas counties for uninsured drivers and had a higher overall crash rate than the Rio Grande Valley.

DPS and other state leaders have long accused the federal government of failing to control what they say is an increasingly dangerous Texas-Mexico border. The checkpoints were part of a larger short-term operation in the Rio Grande Valley targeting criminal activity including human and drug smuggling, stash house operations and home invasions.

“The federal government has proven incapable of fighting the increased drug and human trafficking plaguing this region,” Lt. Gov. David Dewhurst, who visited the checkpoint operation last month, said in a press release. “I’m proud to say that Texas law enforcement is showing Washington how to secure the border by coordinating the efforts of local, state and federal law enforcement entities.”

But what role the checkpoints have played in that initiative has become the subject of a formal inquiry from Canales and could lead to legal challenges from civil liberties groups.

Canales said some in his district are “concerned that (the checkpoints) are some sort of subterfuge to see how far they can push their limits into federal jurisdiction.” He also questioned what he called the lack of public discussion proceeding DPS’s decision to use the checkpoints: “What bothered me most was the deafening silence with which they implemented the program.”

Jim Harrington, the head of the Texas Civil Rights Project, which has been exploring a legal challenge to the checkpoints, said DPS would have to show they are setting up regulatory checkpoints aimed at cracking down on unsafe driving in a fair and methodical way.

“You have to enforce them on everybody,” he said. “If there are other counties with worse statistics and are not part of the (enforcement) program then you have lost that objectivity that would justify regulatory checkpoints.”

‘Libertarian strain’

Texas has long had an ambivalent position on law enforcement roadblocks. Most checkpoints in the state were prohibited by a 1994 Texas Court of Criminal Appeals opinion that declared police could not deploy sobriety checkpoints unless they were approved by a “politically accountable governing body at the state level.”

And while law enforcement agencies have periodically lobbied lawmakers to legalize both sobriety and contraband checkpoints, the Legislature has shown no appetite to increase those powers. The state remains one of only 12 that specifically prohibit setting up random roadblocks to catch drunk drivers.

“There’s still a strong libertarian strain in the politicians of both parties in Texas when it comes to this kind of thing,” said Shannon Edmonds, legislative liaison for the Texas District and County Attorneys Association.

While the 1994 opinion was aimed at driving-while-intoxicated checkpoints, state officials have interpreted it to prohibit other roadblocks as well. In 2008, when DPS asked the Texas Attorney General if it could stop motorists to check their driver’s licenses, the public safety department acknowledged “it is reasonable to presume” the requirements for sobriety checkpoints extend to regulatory checkpoints.

But the idea of creating new checkpoints sparked backlash from border officials and lawmakers, who worried they weren’t legal and would put DPS troopers in the role of immigration agents. The agency withdrew its request before the attorney general could rule on its legality.

Three years later, the Texas Court of Criminal Appeals weighed in on the issue again. The City of El Paso had begun stopping motorists to check for valid driver’s licenses, but had been sued by a man arrested for having drugs after being stopped at a roadblock. In 2011, The Texas Court of Criminal Appeals ruled the police had the authority to conduct driver’s license checkpoints as long as they weren’t a pretext for conducting general criminal checks or searches for drugs, weapons and money.

One of the justices also scolded the El Paso police department for using a drug dog at the checkpoint: “Drug dogs are trained to detect the presence of illegal drugs; they are less useful for sniffing out expired driver’s licenses,” wrote Judge Cheryl Johnson.

The decision left officers to walk a fine line. “An officer never has to turn a blind eye to evidence of an additional crime, but the courts have said you can’t create a driver’s license checkpoint and use it as a pretext … for rooting around for other stuff,” Edmonds said.

Lawmakers considered broadening DPS’s search powers at southbound checkpoints during the 2011 legislative session.

Texas law allows authorities to conduct southbound checkpoints within 250 feet of the Mexican border to look for stolen vehicles entering Mexico. A bill sponsored by Eddie Lucio (D-Brownsville) would have allowed DPS to expand its searches farther into Texas to include checkpoints on roads leading to the border, seeking money and guns. The measure died and wasn’t reintroduced in 2013.

Matt Simpson, a policy strategist for the ACLU of Texas who lobbied against the bill, said state lawmakers have yet to give DPS clear guidelines on establishing checkpoints. “We need for the Legislature to set the ground-rules,” he said. “Up until now, (the constitutionality of) driver’s license checkpoints have been inferred.”

Added Canales, an attorney: “The legality of the checkpoints is not a well-settled issue.”

Divided community

It’s not clear yet what DPS’s new checkpoints in the Rio Grande Valley have accomplished. The agency has declined to give details of how many arrests patrol officers have made or citations they’ve given out, or if property has been confiscated. The agency has promised a full accounting of its roadblock activities when they wrap up the operation.

The tactic has divided the community. Supporters are hoping the checkpoints improve what the McAllen Monitor called “erratic road maneuvers” and “out of hand” bad driving in the region. “(W)e see unsafe driving as more of a violation on citizens’ rights when we can’t get from one place to another unscathed or unshaken in this great state of ours,” the newspaper editorialized.

Yet indignant protesters in the Rio Grande Valley have accused DPS officers of targeting low-income communities with high numbers of undocumented immigrants, who tend to lack driver’s licenses and insurance. John-Michael Torres, a spokesman for La Union del Pueblo Entero, said the checkpoints have caused panic in immigrant neighborhoods, where he said some nervous residents are staying in their homes and avoiding the roads. Residents have created several Facebook pages to alert each other when checkpoints appear — according to local reports they have largely been on secondary roads on the outskirts of Valley cities — so they can select alternate routes.

“Public transportation barely exists in the Rio Grande Valley,” he said. “You have to drive whether you have a driver’s license or not.”

Torres said that because state law prohibits undocumented immigrants from getting driver’s licenses, some unlicensed motorists in the area can’t get into compliance even if they wanted to.

“The people who support this effort in the Valley are by and large concerned with drivers without licenses and insurance,” Canales, the legislator, said. “But if that is the issue, then checkpoints aren’t going to resolve the problem. They’re not going to stop illegal immigration.”

Data reporter Ann Choi contributed to this report.

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