ACLU affiliates in Vermont, Maine and New Hampshire have filed a federal lawsuit against U.S. Customs and Border Patrol, challenging the use of checkpoints in New Hampshire.
The lawsuit, filed Tuesday, alleges that the checkpoints are unconstitutional because they are being used for general crime control, rather than to actually identify people who are in the country illegally.
“CBP points to the purpose of immigration enforcement, but these checkpoints have neither the intent nor effect of primarily finding folks who have crossed the border without authorization,” said Lia Ernst, staff attorney with the ACLU of Vermont.
The checkpoints are overwhelmingly used to search vehicles to make drug arrests, something that should typically require a warrant and probable cause, Ernst said.
CBP is allowed to conduct border checkpoints anywhere within 100 miles of the border — an area that encompasses the homes of two-thirds of the U.S. population — including the majority of Vermont.
Ernst said one major clue that agents are seeking outcomes beyond just immigration enforcement with their checkpoints is how they use dogs. She said the animals are supposedly trained to detect concealed humans, but are instead tasked with searching areas where no human body could reasonably fit. Ernsit said CBP has admitted on the stand to never once finding a concealed person with the canine searches.
A spokesperson for CBP declined to discuss the case, saying the agency does not comment on pending litigation.
The lawsuit stems from a 2017 incident in which Jesse Drewniak, a resident of Hudson, New Hampshire, was detained at a checkpoint further north in Woodstock while traveling home from a fly-fishing trip to the White Mountains — somewhere he travels more than 50 times a year during fly-fishing season.
“I found the checkpoint to be terrifying and dehumanizing,” Drewniak said in a statement. “A Border Patrol agent yelled and swore at me, and I was ultimately detained for about an hour by agents with machine guns.”
The ACLU filed a federal lawsuit following that incident, wherein 16 people were charged with possessing small amounts of drugs for personal use, mostly marijuana. In that case, the court ruled that the primary purpose of the checkpoint was the detection and seizure of drugs, thereby making the checkpoints unconstitutional under both state and federal law.
The state dismissed charges against all 16 people. However, the checkpoints have continued since that time, including a number in northern Vermont.
Ernst said typically the group doesn’t see many checkpoints during the winter months, possibly because officials try to avoid standing outside for long hours during cold weather. As spring approached this year, the time when the checkpoints would typically reemerge, Ernst said the Covid-19 pandemic seemed to prevent any checkpoints in Vermont — at least thus far.
A checkpoint was recently reported in Maine. That indicates the threat of the checkpoints’ reemergence is possible, she said.
The lawsuit asks for damages for Drewniak, as well as for the end to the checkpoints in Woodstock. Ernst said the outcome of the case won’t have any direct impact on the checkpoints in Vermont. However, she said she hopes that it could be used as precedent, should the checkpoints return to Vermont.
“And, as you know, Vermonters and Mainers regularly pass through New Hampshire, and have been ensnared in checkpoints there,” Ernst added.
Ernst said the stops “offend the basic notions” of what it means to live in a free society. In the past few months, federal agents have been deployed to arrest peaceful protesters in Portland, Oregon, and Washington, D.C.
“Checkpoints are not just minor intrusions,” Ernst said. “In your day-to-day life, you expect to be allowed free passage. These checkpoints can cause long delays, damage to vehicles, all sorts of bad outcomes.
“It’s long past time for somebody to hold CBP accountable.”