This past Wednesday, the New Orleans Police Department announced that it would be holding a sobriety checkpoint in — wait for it — “the Orleans Parish area.”

This was a change. Normally the NOPD at least provides a general area that narrows down the location of the checkpoint in advance. A checkpoint will be held in “Uptown” or “Algiers” the NOPD will say, and then if you don’t want to be interrogated by police you at least have the option of trying to avoid that area.

But saying “the Orleans Parish area” doesn’t really convey anything. The NOPD can’t operate outside of Orleans Parish, the boundaries of which mark the full extent of its jurisdiction. If the NOPD issued a press release saying it was going to be performing a sobriety checkpoint in Metairie, well, that would certainly be news (particularly to the Jefferson Parish Sheriff’s Office, which probably would not appreciate it one bit). Ultimately, however, it goes without saying that anything the NOPD does takes place in Orleans Parish.

Accordingly, this is a bit of a farce. It is a farce with a long and boring legal history, though, so of course I will recount it for all of you non-lawyers who intentionally avoided law school. Think of it as payback for the 24 hours I spent taking the Louisiana Bar Examination.

The story begins in 1989. Bush Sr. became president with a “no new taxes” pledge, Paula Abdul was relatively sober and rocking the Billboard charts, and the Louisiana Supreme Court ruled that sobriety checkpoints were unconstitutional. Oh, those halcyon days of 1989…

Then came 1990. The U.S. Supreme Court released its ruling in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), approving of the use of sobriety checkpoints. The majority lamented the slaughter on our nation’s highways and basically entered into a Faustian bargain to allow sobriety checkpoints. The Court speciously reasoned that sobriety checkpoints were akin to national border checkpoints, which were held constitutional in United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

In a rare moment of clarity, Justice Stevens, joined by Justices Marshall and Brennan, issued a dissenting opinion stating the obvious:

There is a critical difference between a seizure that is preceded by fair notice and one that is effected by surprise. That is one reason why a border search, or indeed any search at a permanent and fixed checkpoint, is much less intrusive than a random stop. A motorist with advance notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy. No such opportunity is available in the case of a random stop or a temporary checkpoint, which both depend for their effectiveness on the element of surprise. […] This element of surprise is the most obvious distinction between the sobriety checkpoints permitted by today’s majority and the interior border checkpoints approved by this Court in Martinez-Fuerte. The distinction casts immediate doubt upon the majority’s argument, for Martinez-Fuerte is the only case in which we have upheld suspicionless seizures of motorists.

Thankfully, it took a while for the Supreme Court’s decision in Sitz to filter down to the Louisiana Supreme Court. However, filter it did, and in 2000 the Louisiana Supreme Court issued its ruling in State v. Jackson, 00-0015 (La. 07/06/00); 764 So. 2d 64, giving the thumbs-up to sobriety checkpoints. The Louisiana Supremes didn’t have a great deal of choice considering that the constitutional protections at issue were the same under state and federal constitutions, thus giving the final word to the U.S. Supreme Court.

By this point, however, 10 years had passed and Louisiana had the benefit of rulings from other states setting standards for sobriety checkpoints. Responding to the concerns of the dissenters in Sitz, many other states had required (or at least recommended) that “advance publicity” be given as a prerequisite to a valid sobriety checkpoint.

The Louisiana Supreme Court set four guidelines for evaluating how intrusive a sobriety checkpoint was, including (and this is verbatim): “the location, time and duration of a checkpoint, and other regulations for operation of the checkpoint, preferably in written form, established by supervisory or other administrative personnel rather than the field officers implementing the checkpoint.”

To say that this factor was poorly written is like saying that Madonna is immodest. Nobody knew what to make of it, and the Louisiana Supreme Court has never bothered to clarify to clean up the gigantic mess it created with this mass of nonsensical verbiage.

Parsing the impenetrable language, most police departments concluded that this integrated the “advance publicity” requirement adopted by other jurisdictions cited by the Court, thereby mandating publication of time and location of the sobriety checkpoint in advance so motorists could avoid it. This is why the NOPD used to publish the names of neighborhoods in advance of checkpoints. You don’t want to get caught in our “Uptown” checkpoint? Well then, avoid Uptown!

The NOPD, however, has apparently become greedy. The State Police, with statewide jurisdiction, tend to only list the name of the parish in which a checkpoint will be in their advance publication. The NOPD, with jurisdiction in only one parish, is trying to do the same thing. You can see their point. From an individual citizen’s perspective, the NOPD is right – if the State Troopers can only limit their notice to a parish, why can’t everyone? What does it matter what agency is manning the checkpoint?

In my view, it matters because the Supreme Court’s decision in Sitz was dubious at best, and the NOPD of all departments should not be pushing it. In Sitz, the sticking point was notice. Normally, the police can’t stop me in my car unless they have reasonable suspicion that I’ve committed a criminal offense. Border checkpoints are an exception to that, but they’re permanent installations and relate to customs enforcement. Also, I can avoid them by not crossing an international border (for the sake of comparison, try turning around when you come across a sobriety checkpoint). It’s far more intrusive and constitutionally-suspect to tell me that I can be stopped sans suspicion whilst driving around my own damn town, and the NOPD damn well knows that.

From what I can see, the approval of sobriety checkpoints in our courts is largely a function of popular disgust for drunk driving. It is the success of popular upheaval over established rights. We’ve reached a social agreement whereby we’re willing to tolerate having the police stop us randomly, shine lights in our eyes, ask for our papers, and rattle off questions so that we can get a better handle on the slaughter on our highways from drunk driving. It’s liberty versus safety, and we’ve made our choice.

In practice, few drunk drivers are actually caught with sobriety checkpoints, and many argue that random stops are more effective at curbing drunk driving, but the Centers for Disease Control and police departments across the nation attest to their impact as a deterrent. There is still resistance – 12 states prohibit sobriety checkpoints – but the public remains accepting.

Nonetheless, this acceptance is still an exception to established constitutional rights, and the NOPD has just decided to push the boundaries a little further and infringe just a little bit more. For a department that was just investigated for gross violations of constitutional rights, this is a disturbing choice. And for a public that has had those violations thrust upon them, it should be an unwelcome development. The NOPD should be bending over backwards now in favor of constitutional rights, not figuring out new ways to skirt the rules. We’ve been there before; let’s not go back.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.