Law students learn an aphorism about the development of law: Hard cases make bad law. Recent events in Colorado illustrate the point: hard circumstances invite bad decisions and establish bad precedents that chip away at our liberties. Citizens can be almost powerless to respond.
First incident: a bank robbery in Aurora, Colorado caused a gunpoint lockdown, hand cuffing, and mass detention of dozens of innocent commuters yanked from their vehicles, based only on a GPS beacon that the robber might be at a particular intersection. There was no description of the robber or the vehicle, so police drew their weapons and detained the occupants of every car stopped at the light. Police held the detainees for two hours.
In the last vehicle they searched, police found loaded guns and apprehended their man.
Second case: the horrific abduction-slaying of Jessica Ridgeway who vanished on her way to school in Westminster, Colorado. The local news and news-watching public were consumed with her disappearance and unknown fate. The state and nation mourned when an arrest was made, confession obtained, and the victim’s body recovered.
What was less reported was that police had canvassed door to door and with zero basis, they pressured homeowners to submit to aggressive searches. A friend lives in the neighborhood and reports that police and FBI came to her home, demanded entry, were brusque and insistent about her refusal, returned another day, and unpleasantly warned her they would not be as pleasant when they came back yet again.
The case was closed before that happened. Other homeowners who allowed entry reported their homes disturbed, dressers, papers, appliances, and effects probed, rifled through, scattered, and left amiss.
Any decent person is pleased a bank robber was apprehended and anguished that a little girl perished. They would do anything they could to help satisfactory outcomes in either case. But any thoughtful citizen has to be troubled about the broad net local officials cast, and the inversion of traditional American principles of justice: probable cause, particularized suspicion, a reasonable basis to question—these were not the guiding lights of the operations.
The overreach in both cases (I assert it was such) is troubling and challenging for various reasons: it stemmed from powerful public need, in causes we all support. Yet, for those affected, it reversed the normal relationship between citizen and state: innocent motorists with no indication of guilt or involvement were detained, cuffed, guns aimed at them; homeowners were pressured and intimidated to accept entry and search. If they refused, they were left in doubt and threat about the next “visit;” if they agreed, their home was violated and upheaved, and not restored.
The bedrock idea that law enforcement operates within certain standards and limits, and that citizens are protected by certain powerful barriers on state action is fading. It’s being replaced by the thought that solving the case is more important than the safeguards and liberty of innocent people.
Most troubling to me is a lack of an effective venue or mechanism to hold the officials accountable—and to press for reformed policies and standards for decision-making It is my unscientific sense that a strong majority of citizens disapprove these tactics. When I posted my criticism on Facebook, responses were about 90% against officials’ actions, 10% in favor. Friends across the political spectrum expressed concern.
But, we voice our opinions ineffectually, or with hesitation. First, everyone understands the urgency and public safety concerns motivating the responsible authorities in such exigent cases. Second, we live in a busy world. Headlines and issues stretch all the way from existential global clashes and DC policy standoffs, to pressing work concerns, and delicate parent teacher conferences. We have limited time, knowledge, and drive to go after every important thing. Third, public officials and public bodies command the high ground. They enjoy concerted information, decision-making, and execution. Engaged citizens may as well be the only person who called to express concerns about a particular incident, so far as they know.
When the next crisis incident hits, authorities will make the decisions they feel pressure to make, to do their job. Whether it turns out well or badly, a lot of citizens may feel unease. But the ratchet will turn another notch.
And the security of our homes, persons, papers and effects will be a little less sacred by the day.