4th Amendment? It was here a minute ago...

A disconcerting number of stories over the past few months concern abuses by police: whether it’s showing up en masse in riot gear and spraying military grade pepper spray against peaceful demonstrators in New York, Chicago, UC-Davis, and elsewhere, or escalating New York City’s stop and frisk policies that generally result in nothing more than completely innocent (89%... and the majority of the arrests that were made were of the rather squishy disturbing the peace variety) non-white (91%) people getting hassled by a collection of euphemistically-termed “peace officers” strutting around showing each other how tough they are, with little if any concern for actually preventing or punishing honest-to-God criminal behavior.

In 2003, about 1 in 266 of these stops resulted in actually finding a gun. That rate of return would lead any sane person to discontinue the policy, even apart from other concerns. New York City Resident Idiot Blowhard Mayor Michael Bloomberg, of course, doubled down, actually encouraging more of the tactic, complete with its attendant constitutional issues and racial overtones. By last year, with over three times as many stops, the “success rate” (if we can call it that) plummeted to 1 in 879.

Bloomberg defends this clearly problematic practice by claiming, disingenuously at best, that some 560,000 murders have been prevented by these goon tactics. To say that this figure is absurdly inflated is, of course, obvious, although one suspects that there has been some positive benefit to creating a situation in which to be young (ages 14-24), male, and black or Hispanic is to be an automatic suspect: people who meet all three of those criteria represent less than 5% of the population, but they account for nearly 42% of stop-and-frisk episodes.

Yes, such people are disproportionately likely to commit crimes, too, but the essence of the American legal system and (wait for it) one of the signature tenets of western conservative philosophy is that individuals ought to be considered as such rather than as representatives of groups: not all urban 18-year-olds named Enrique are criminals, and they shouldn’t be treated as if they are.

More to the point: I. Don’t. Care.

If you search literally everybody without any provocation, chances are pretty good you’ll catch someone with a gun or drugs or an outstanding warrant. But the price is too high except in the McCarthyite universe inhabited by arrogant buffoons like Mike Bloomberg. Really, if the price of “law and order” is a state in which the authorities can do whatever the hell they want, I’ll take a little risk.

We are not yet at a point at which I, as a law-abiding citizen, have more to fear from the police, the TSA, US Immigration and similar agencies than I do from random felons. As long as I’m a good little boy and don’t do something outrageous like exercise my 1st amendment rights, I’m probably OK. But my chances of facing unprovoked hassling from someone in uniform are actually considerably higher now than when I was a long-haired post-adolescent with a draft card I hadn't yet decided what to do about. (Luckily, that decision was made for me.)

In short, the attacks on 4th Amendment injunctions against unreasonable search and seizure are even more profound than those on 1st Amendment guarantees of freedom of assembly. This was never more apparent than a recent case in Aurora, Colorado. Aurora, you may recall, is where they charged a six-year-old with sexual harassment for quoting from the lyrics to a popular song. They do grow ‘em stupid there, apparently.

This time, the police held over 40 people for over two hours because they had information—a “virtual certainty” in the words of Moron in Charge Police Chief Dan Oates—that an armed bank robber was in one of twenty or so vehicles stopped at a red light. So, naturally, the cops stopped everyone. But, as they say in the late-night infomercials, that’s not all. Let Officer Frank Fania tell it: “Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car. They all granted permission, and once nothing was found in their cars, they were un-handcuffed.”

Permission. Yeah, you’ve been handcuffed for no good reason, prior to being told what the hell is going on, by a police force that has just demonstrated that they don’t think they have to follow any rules. You know that you’ve been held up already for two hours while the cops strut their ability to hold ordinary law-abiding citizens without cause. Despite police bungling, you may yet be able to salvage your job, catch your flight, make it to your kid’s concert if you don’t do your shopping first, as you’d planned to do. You’re not really likely to make a reasoned decision about whether to stand on the part of your 4th-amendment rights that haven’t already been violated. You just want this stupidity to end. Notice also that “un-handcuffed” is different from “apologized to and told they were free to go.” A sloppier operation would be difficult to imagine.

When the case first made news, that bizarre quote from Chief Oates caught my attention. How could there be a “virtual certainty” if there was no description of the suspect? In other words, if the suspect is a 45-year-old white male, then I can understand a brief detention of white men who might be 45-ish. But all adults, for two hours? Not a chance.

Later, it came to light that the tip was actually in the form of a tracking device. This, of course, makes the situation even worse. It means that the police could simply have followed the suspect to his destination, which would have almost certainly been less crowded and, by extension, less dangerous for the public.

The smug declaration by police Officer Fania that “The result of the whole ordeal is that it paid off. We have arrested and charged a suspect” misses the point altogether. I don’t know whether Fania is that stupid or that disingenuous, but the fact that no one was hurt and the suspect was apprehended in this case was simply luck, not the product of effective police work.

The constitutional catastrophe, it turns out, was promptly pointed out. Jim Miller, described in the TV piece as a “legal expert” (whatever that means) points out that the “officers… who were involved involved couldn’t point to any of these people they stopped and say, ‘here’s my articulable suspicion for believing that you did something wrong.’”

Justin Marceau, who teaches law at Denver University, amplifies the point, noting that any detention of a person beyond a minute or two means the person has been seized:

What if the tip had been that the robber lived on my block– no other information? Could they detain and handcuff everyone who lives on my block in the hope of catching one bank robber? No, they couldn’t. The Fourth Amendment is pretty clear. I don’t have a problem saying the police violated these people’s Fourth Amendment rights.

Marceau also points out that none of the initial statements from the police expressed any particular interest in public safety. By this observation, neither he nor I, I’m sure, mean to suggest the police weren’t concerned about safety issues, but rather that the detention of dozens of people they knew to be innocent (they just didn’t know which one might not have been) was not prompted by safety concerns. This becomes relevant because it therefore does not allow an exception to normal constitutional protection the way random roadblocks to catch drunk drivers would. (I think that should be illegal, too, but I do see the argument.)

They said they did it to catch a bank robber. If their purpose was to catch a criminal then they need probable cause or reasonable suspicion for each person they detain. If 19 people were detained to catch one, then a one in nineteen chance that a person might be a criminal is not reasonable suspicion. Under settled law, this went way beyond what police are allowed to do.

Of course, the city attorney and “numerous other attorneys” think everything is just peachy. Apparently one becomes city attorney in Aurora when one is too stupid to be an elementary school principal.

Eugene Volokh, the constitutional specialist whose Volokh Conspiracy blog is on my blogroll, also weighed in on this case, noting that “Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or—in the context of a brief investigative stop—‘particularized suspicion’ to believe that the person is dangerous to the investigators.” He cites legal precedent—Manzanares v. Higdon and Ybarra v. Illinois, for those of you keeping score at home—and concludes

…even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop—perhaps, depending on the circumstances, including a patdown for weapons—I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.

It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion. I should hope that the police department and its elected superiors will also face some political blowback. Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people—in a situation where it was certain that the great bulk of the people were indeed innocent—for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.

Yeah. What he said.

So, anyway, I thought this was going to be the “can you freaking believe this?” episode for the week. Then, between starting and finishing this piece, I read about the guy who had a diabetic seizure on his way home from Bible study, crashed his car, and was pepper-sprayed, clubbed and Tasered by police. To death. If these allegations are proven to be even within hailing distance of the truth, I take back what I said earlier about not yet being at the point where we have more to fear from the police (in the broad sense of that term) than we do from random criminality. We’re there. Enjoy the view.