(A lawyer weighs in on the civil rights implications of Governor Patrick's ban. Andrea is a former Miami-Dade Prosecutor and a current defense attorney. - promoted by Rob "EaBo Clipper" Eno)
As funny as jokes about Braveheart-esque protests of Governor Patrick's Executive Order No. 543 may be, the debate should not end with two diametrically opposed camps absolutely for or against the use of executive power in a public emergency. Whether the exercise of executive power was justified should only begin the inquiry as to whether Executive Order No. 543 itself was proper.
The impending snowstorm created a safety concern that arguably justified an order restricting motor vehicle travel, enforcement of which would require stopping drivers on the road, a warrantless "seizure" implicating the Fourth Amendment absent suspicion of another crime or even a traffic infraction.
OUI checkpoints provide a parallel - we deem the safety concern of keeping intoxicated drivers off the road serious enough to justify similar warrantless seizures without suspicion of crime or a traffic infraction.
OUI checkpoints, however, are conducted pursuant to strict guidelines contained in State Police Order TRF-15. The constitutionality of checkpoints depends upon adherence to these guidelines, in that they remove discretion from law enforcement officers. Safeguards include: requiring data to determine locations of checkpoints, assuring safety of motorists, suggesting minimally invasive non-threatening greetings by the initial stop officer, adherence to procedures approved by supervisory channels, and specification of the intervals at which vehicles will be stopped.
Executive Order No. 543, to the contrary, was a bare abrogation of constitutional standards for seizure of vehicles and drivers, delegating blanket authority and discretion to law enforcement officers without reference to any guidelines safeguarding against racial profiling, end-runs around warrant requirements, targeting of individuals under investigation, or enforcement in accordance with public safety and individual rights.
Executive Order No. 543 allowed law enforcement officers to park on the street of a person suspected of an unrelated crime in which the evidence was insufficient for a warrant, and wait for the target to get in his or her car in order to conduct a pretextual seizure based on the Executive Order. Whether anyone was charged with violation of Executive Order No. 543 is of little consequence compared to the more insidious question of how many people were arrested for other crimes based on stops justified only by the Executive Order. Without reading every police report narrative scrawled during the force and effect of Executive Order No. 543, there is no way to know.
Concluding that anyone stopped based on violation of the Executive Order should have reasonably expected to be subject to seizure assumes everyone had notice of its issuance, which depended largely on access to cable or the internet. Thus, seizures based on the Executive Order had the potential to disproportionally impact the poor and those engaged at non-desk jobs.
If support of the Executive Order is partisan due to Governor Patrick's Democratic political affiliation, it certainly is a great example of the political spectrum coming full circle. A proposal for the promulgation of guidelines to ensure constitutional safeguards against undue law enforcement discretion and authority would likely be welcomed by many atypical Republican voters.
It is not Governor Patrick's use of executive power to restrict travel during a snowstorm that is so constitutionally concerning; it is the unfettered discretion and authority he bestowed upon law enforcement to abandon constitutional standards for search and seizure, subjecting anyone driving a car to an investigative stop without procedural safeguards. This may seem trivial to those unconcerned with police interactions, but a very real threat to those who live in neighborhoods where police harassment is common and Executive Order No. 543 vitiated well-settled Fourth Amendment search and seizure standards for the weekend.