That’s A Lot of ‘Cuffs

The police in Aurora, Colorado, faced a fascinating dilemma,  From the Aurora Sentinel, the police closed down an intersection after a bank robbery, stopped about 20 cars and held about 40 people.

The incident started around 3:50 p.m. Saturday when police say the robber barged into a Wells Fargo Bank at East Hampden Avenue and South Chambers Road and pointed a gun several people in the bank.

The robber, who was wearing a mask that covered virtually all of their face, then fled the area.

Oates said officers determined that the robber had to be in one of 19 vehicles headed east on East Iliff Avenue near South Buckley Road at about 4:20 p.m. The intersection is about two miles northeast of the bank.

Oates declined to say exactly how officers knew the suspect was going to pass through the intersection, but stressed that investigators were certain he would.

While the details may be muddled, it appears that they stopped the cars, handcuffed the occupants and then sought (and obtained) consent to search the vehicles. They eventually found the person they believe to be the bank robber.

The police action was dictated by two things, the certainty that the robber would be found in one of the cars and the absence of any description of the person or the vehicle that would allow the police to limit their stop and search to only those fitting the description.  For the sake of argument, let’s assume that the police claim of “virtual certainty” is accurate and well-founded.

Constitutional?

Eugene Volokh says bullocks.

I’m not a Fourth Amendment expert, but I’m pretty sure this is unconstitutional. 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.

What is true for a search pursuant to a warrant is likewise true for warrantless seizures, such as the ones that occurred here. And 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.

Strangely, my natural inclination toward suppression isn’t tingling here. Ignoring (as I do) Eugene’s opening disclaimer (his version of “I don’t nothin’ about birthin’ no babies), this bizarre scenario seems to present the only reasonable way for the police to have dealt with the situation.

Say the basis for the certainty that the armed bank robber was at the intersection was based upon a tracking device hidden with stolen currency, such that the cops knew within 100 feet where the robber would be found, and given the number of other vehicles and people at the intersection making it impossible to follow all the vehicles until each could be isolated, and given that the robber was armed, what alternative did they have?

Clearly, to stop and inquire of every vehicle/person without first assuring that they wouldn’t pull out the gun and blow some cop away (or a few others at the intersection who happened to be in the line of fire) wouldn’t work. The police aren’t obliged to be killed before they can take appropriate measures to secure their safety.  So placing each person in handcuffs first, as a precaution, despite having no particular suspicion that they are the bank robber beyond the happenstance of their being at the same intersection seems, well, the only reasonable thing to do.

It’s not that Eugene didn’t see the problem.

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.

If the police delayed their investigation, and thus held innocent people in custody for a moment longer than necessary, the point would be well-taken.  But there is no claim of dilatory tactics, even though it may have taken more than an hour to find the culprit.

And what of the “dozens of innocent people?”  Certainly the number of people who found out what it’s like to feel steel around their wrists is shocking, but does that alter the equation?  Suppose there were only two cars at the intersection. Would that change the calculus? Are the rights of the nice innocent folks in the other car less worthy of constitutional protection?

The alternative option was for police to let the bank robber continue on in the hope that he would eventually be susceptible to isolation, and then that police could get to him, that he would still be findable, and that it would be under conditions where he could be stopped without endangering others.  The variables involved present a number of questions that may have made this option untenable, but more to the point, they had an available means of capturing him at hand and would have had to forgo it without knowing whether the alternative would come to pass.

It’s a tough call. The commenters to Eugene’s post overwhelmingly favor his position, that this was an unconstitutional stop and seizure, and that the police should be liable to the innocent people stopped without individualized suspicion.

Notably, had I been one of the people stopped (and not the bank robber), I don’t think I would have taken issue with the choice.  My having lost an hour of my time, and sat there cuffed, would have struck me as completely understandable under the circumstances.  Inconvenient. Maybe even painful and humiliating. Maybe.  But as a citizen, I would have supported the choice.

And yet, it’s breaking my heart not to scream about the outrageous police conduct.  I suspect many will rip me a new one for my view here, but the police tactics strike me as reasonable under the circumstances, and contrary to Eugene’s view, I don’t find the price too steep to pay under these circumstances.

22 comments on “That’s A Lot of ‘Cuffs

  1. Nate

    Not to rip, but to gently disagree.

    We’re assured that the police were certain that the suspect was in the area, in one of the cars. But we’re not provided any indication on how they arrived at that certainty. It could have been a tracking device, concealed in the money. It could also have been a simple hunch, magnified to “certainty” in much the same way that officers do on a regular basis when they say that their training and experience dictated that otherwise innocent behavior is clearly indicative of criminal activity.

    And that’s the issue, for me at least. If the police had something that indicated the suspect was among those cars, then I can go along with you. But even in my short career, I’ve seen too many instances of mountains made of out of mole hills. I’m not prepared to believe that the “virtual certainty” was anything more than “he drove that way, and we didn’t see him turn left.”

  2. SHG

    That’s why I remove the issue as a variable. If it turns out that they didn’t have the goods, then it isn’t even close.

  3. Robert Hewes

    Do I assume correctly that if they had found, say, drugs in one of the stopped cars, then you’d be in favor of the suppression? If so, I think I’d have to agree with you.

  4. SHG

    I would have, but that would be my personal choice. Then again, ain’t nothing in my care anyone cares about. Not even me.

  5. SHG

    I want to say that anything they found outside the scope of the reason for the stop should be suppressed, but it’s a problematic argument if the driver gave consent to search.

  6. Kathy Manley

    It seems like a very slippery slope. What if it was 100, or 1000 people who were detained? Where do you draw the line? If you know the robber is somewhere in a house on a particular street? Or in a particular town?

  7. SHG

    It’s a very slippery slope. Entering houses has distinct issues. A thousands people seems far too broad an area to identify reasonably. Yet they are excellent issues and troubling problems. Very slippery indeed.

  8. Paul

    Greetings,

    The slope is damned near vertical. My opinion is that the line was crossed over once the handcuffs went on. It was no longer a “safety of the officer” issue, but “keep these people secured until we search all the cars, and we will let the courts decide” issue. The police believed that ONE of the FORTY people was the suspect in question, and they arrested (do you suppose that if a person attempted to leave that they would not be charged with resisting arrest or worse?) 39 people that they KNEW had to be innocent. The line was crossed.

    Paul

  9. SHG

    You are absolutely right, there wasn’t a chance in the world they would have let someone leave. This was full blown custody.

  10. Burgers Allday

    My concern is that something might accidentally fall out of the policeman’s pocket when he is in the car searching it, and the policeman might not realize he has dropped something until he looks down and sees the contraband on my floorboards. I guess there is some debate about whether that could really happen or not. Some say that policemen are too careful to allow an accident like that to occur. Others say “accident” is not the correct word to use in this context.

  11. SHG

    There’s room for paranoia in every argument. Sometimes, they just want to find a bank robber.

  12. Onlooker

    Couldn’t they have found a way to do this without cuffing everybody, once they determined they weren’t armed?

    I realize the logistics for that many people could be difficult, especially considering that one of them was a(n) (formally) armed robber, but waiting for an hour and a half not cuffed is quite different than being in cuffs.

  13. Charles Morrison

    I must admit that I was surprised to see how you came out on this issue, but I respect and admire your ability to see yourself as just a citizen and not as a criminal defense attorney in this context, especially given that you authored this as part of this defense-oriented blog. And, this didn’t happen in your neighborhood, to boot. I have a tendency (probably flaw) to always view these stories through the eyes of a defense attorney only and not as a citizen living and raising kids in my town. Maybe that ability comes with experience as I am one of those young lawyers that certainly knows nothin’ about making babies.

    You almost convinced me. The problem I have is that if this were upheld it is only moving us further towards the courts’ focusing on the “unreasonable” portion of the 4th amend and further away from the “based upon probable cause” part. Over the last few decades the court has more and more reduced the 4th amendment test to a balancing of “societal interests” at stake versus the extent or level “invasion or intrusion of privacy” on the part of the individual – often completely forgetting about that pesky other phrase of the 4th requiring probable cause. We have seen that in the administrative searches, checkpoints, etc. I happen to feel the focus on reasonableness under the circumstances is worrisome and moves us closer to the day when if the cops really, really need to achieve some goal, almost anything is fair game. After all, what is a weekend in jail when a baby has been kidnapped or worse? Isn’t society’s interest great and the level of invasion minimal when considering all the other days of our lives we do not spend in jail? One day soon that unpleasant event will be behind you, right?

  14. SHG

    I’m not clear on why it needed to take as long as it did, at least to frisk and know that they weren’t armed, and then they could have held them, without cuffs and away from the vehicles, until the car searches were done. Maybe they didn’t have enough cops to do so, but it’s not entirely clear.

    I’m reminded of people who argue that a cop could have shot someone in the leg rather than in center mass. It works great on TV, but not in real life.

  15. SHG

    I agree, there are a lot of slippery slope aspects to my position here. Sometimes, there is an emergency that is sufficiently compelling to resort to reasonableness. It’s not an overarching answer, but just my reaction to the peculiar circumstances here. 

  16. CLH

    I have no problem with what the police did up until one point- when they decided to leave people handcuffed for that long. It’s not just a “little painful”, handcuffs freaking hurt, especially if (like me) you’re a big person. I have only ever been handcuffed a few times, and that was for training in handcuffing other people. I always remembered that after about ten minutes, my wrists were inevitably bleeding. I’m not a typical case (I’m 6’3″, 315lbs), but regardless, they leave bruises, and are very painful. The hands are twisted back till they are facing each other, and especially with the link-less cuffs, they force your arms and shoulders back, and when your shoulders try to return to the normal position, it applies some pretty extreme pressure to the wrists. And you can only keep pressure off your wrists for so long- after a few minutes, the muscle between your shoulder blades cramps up, and then it’s hell either way you go. I always remembered that when I was involved in handling captured insurgents in Iraq. After the immediate situation was resolved to the point where they did not represent a danger to us, I always changed their cuffs out for waist restraints and leg irons, to reduce the damage done to wrists. In cases where people were detained for inspection of industrial areas or their homes (and don’t get me started on THAT lunacy- there’s a reason we’re not liked even by people who directly suffered under old regimes)I either had them sit facing away, in a chair if possible, or against a support if not, with hands above their heads. That prevented the pain of the cuffs in the first place. I was, unfortunately, the only person in my unit who even took that into consideration. As far as the rest of it goes, they probably had a good and compelling reason to stop these people, detain them BRIEFLY to ensure they were unarmed, and then to RELEASE at least their cuffs.

  17. SHG

    I have it in my mind that they didn’t close the cuffs too tight, given that they new that the vast majority of people stopped would end up being innocent and cut loose.  Notably, no one has come forward to complain, at least not yet.

  18. John P.

    Perhaps the next time this town has a violent crime they should simply arrest/detain everyone in the city… until they find the actual criminal…

    That’s where this is playing out logically….

  19. LTMC

    Scott wrote:

    “Suppose there were only two cars at the intersection. Would that change the calculus? Are the rights of the nice innocent folks in the other car less worthy of constitutional protection?”

    This situation presents a problem that is derivative of Blackstone’s ratio (or as I prefer, Maimonides ratio, wherein he interpreted Exodus 23:7 as commanding a 1000 to 1 trade-off, rather than Blackstone’s 10-to-1). Here, a bunch of people were detained with what appears to be zero individual, particularized suspicion. While the inconvenience of their detention may seem a worth trade-off to catch a serious criminal, recall also that Blackstone made no exception for dangerous crimes: it is precisely these sort of crimes where overzealous law enforcement is more likely to lead to the violation of citizen’s rights, because of their desire to stop a dangerous felon from getting away. In this light, I don’t think changing the number of people stopped weakens the voracity of the principle.

    Legally speaking, I think Eugene is on the mark. Although the Supreme Court has done its best to weaken Fourth Amendment protections to the point where everything short of arbitrary, malicious conduct by police is constitutionally reasonable, in this case, the actions of the police seem blatantly unconstitutional. These people were full-blown seized without individualized suspicion. I’m unaware of any case that allows police to detain people without individualized suspicion pursuant to a “trial-by-elimination” strategy. And the fact that consent to the searches appeared to take place after they were detained in handcuffs makes is extremely likely that they can get the evidence suppressed under Florida v. Royer.

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