Shawn Mitchell

Sinclair Lewis was so 20th Century.

Progressives have effectively burnt the cross and the flag already. Thus, old-style patriotism and religiosity can’t even win elections in heartland states- just ask Senators Akin and Mourdoch.

No, that’s not where the threat festers. When tyranny comes to America, it will be advanced by earnest public officials, enforcing intrusive rules declared necessary to stamp out social problems and purify us of bad consumer choices. The oppression generally will be applauded by elites and educated people. Whether or not it prevails and becomes the new normal depends on the rest of us, our outrage, and the effectiveness and staying power of our response.

But, those folks who are anxiously monitoring Washington and a president who ill-conceals that, to him, the Constitution presents more of an obstacle than a genius bulwark for freedom, might be missing an important point.  Yes, Washington is out of control. For liberty to prevail, it must be confronted, restrained, and redirected. But, so too, our local authorities and institutions can trample our liberties, our privacy, and our domestic tranquility.

Law students learn an aphorism about the development of law: Hard cases make bad law. An incident or two last year in my home state of Colorado illustrate the point: hard circumstances invite bad decisions and establish bad precedents.  Citizens can be almost powerless to respond.

First incident: a bank robbery in Aurora, a suburb of Denver, caused a gunpoint lockdown, hand cuffing, and mass detention of dozens of commuters yanked from 40 vehicles, based only on a phone tip 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 40 vehicles 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, in a horrific abduction-slaying, a middle school girl vanished on her way to school in a western suburb of Denver. 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 a social network the responses (not politically representative of all of society, I concede) were about 90% against, 10% in favor.

But, we hold or voice our opinions ineffectually, or with hesitation. First, everyone understands the urgency and benevolence of the motives of the responsible authorities in such exigent cases. Second, in a busy world with headlines and issues stretched all the way from existential global clashes and DC policy standoffs, to pressing work concerns, and delicate parent teacher conferences, there is 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.


Shawn Mitchell

Shawn Mitchell was elected to Senate District 23 in the Colorado General Assembly in November of 2004. Shawn is an attorney at private practice in Denver and Adams County.
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