Simple Rules Foiled Again
by Ari Armstrong, July 17, 2001 (posted)
My wife collects miniature lunch-boxes she sometimes carries as purses. I carry a crowbar and screwdriver in my car for roadside repairs. Does that make us criminals? It may depend on who's interpreting the Colorado statutes.
Classical liberals or libertarians tout the virtues of a simple legal system that outlaws physical violence, theft, and fraud but leaves people "otherwise free to regulate their own pursuits of industry and improvement," to quote Jefferson. Richard Epstein even wrote a book titled, Simple Rules for a Complex World. Picking up on this theme, Dee Hock, founder of Visa, said, "Simple, clear purpose and principles give rise to complex, intelligent behavior. Complex rules and regulations give rise to simple, stupid behavior."
Sheriff Bill Masters of Telluride says there are so many laws on the books that not even peace officers can keep track of them all. "Trying to identify the laws that are important becomes a nightmare for all involved in the system," he said. He urges the legislature, "Pass only the laws that are really necessary. Keep them few in number, and make them easy enough for a child to read and understand." Masters noted that the four simple words from Mount Sinai, "Thou shall not steal," have proliferated into over 24,000 words in the Colorado Revised Statutes.
And those statutes just got a little longer. Shoplifting has always been a crime. It should always be a crime. Shoplifters steal not only from the store, but from all of us by driving up prices. But was it really necessary for the legislature to create a distinct crime of carrying a bag which MAY be used for shoplifting?
The Colorado legislature can't leave well enough alone, it seems. Just as a person can be charged with murder or attempted murder, it makes sense to identify crimes of shoplifting and attempted shoplifting. However, the new law goes far beyond that. Now, it's illegal to line any article of clothing or any bag with aluminum foil. Further, it's illegal to use any "theft detection shielding device," which "includes, but is not limited to, any laminated or coated sack or container that is capable of avoiding detection by a theft detection device."
I figured that if a bag lined with aluminum foil would block a detection device, so would my wife's lunch-box purses. To learn more about the law, I called Cheri Jahn, one of the sponsors of bill 1221. She said that to be found guilty of a violation you'd have to have an "intent" to shoplift. When I noted that intent can be difficult to determine, she said that a person would have to take some specific action to indicate they were trying to shoplift. The obvious follow-up question, then, was why the new law is needed. If a person has to actually attempt to shoplift, isn't that already a crime?
Unfortunately, Jahn's interpretation of the law is not the only one available. On June 28, JoAnne Groff, president of the Colorado Retail Council, told the Rocky Mountain News, "With this law in effect, we don't have to wait until they take something out of a store." On July 1, Chris Howes, vice-president of the same Council, told the *Denver Post*, "We liken these devices to burglary tools... If you're caught in the store with them, it's obvious they're designed to shield anti-shoplifting devices and you can be prosecuted even before anything is stolen."
But is it "obvious" that a metal lunch-box purse is intended to be used innocently rather than to commit a crime? Certainly if somebody with a lunch-box purse concealed an article from a store inside the purse, that would be a reasonably clear intention to shoplift. So why do we even need to discuss the type of bag?
I also called the law's lead sponsor, Al White. He too likened "theft detection shielding devices" to burglary tools. He said they include bags, overcoats, and boxer-shorts lined with aluminum foil. I asked him about my wife's purse -- is that a "theft detection shielding device?" He replied, "I would think not." He said interpreting the law to include my wife's purse would be a "ludicrous extreme." He said the risk for abuse is "minimal or non-existent."
White said a store clerk would have to have "firm ground" to send the police after a person suspected of shoplifting. He also noted that "an attempt to hide [products] on your person" is already a crime. Which returns us to our initial question: why was the new law necessary?
Many laws have been abused in the past. In Texas, the seat-belt law was used as a pretext to arrest and jail Gail Atwater, who was driving at a snail's pace down a lonely road with her children looking for a lost toy. The Supreme Court decided the arrest was acceptable. During this past session, our legislature also passed a law intended to curb racial profiling by the police. Racial profiling is a problem precisely because police can pull a person over on a wide range of legal pretexts. An innocent-looking federal law imposing a $200 gun tax precipitated the events surrounding the tragic deaths at Waco and Ruby Ridge. And let's not forget that one need not be convicted of a crime in order to be harassed, detained, arrested, or financially burdened.
State Senator Stephanie Takis, who picked up bill 1221 in the Senate, also told the *Post* the foil-lined bags are a "theft tool, like a crowbar." Along with crowbars, what other kinds of tools are used by thieves? How about screwdrivers, hammers, and pocket knives?
By the way, it's a FELONY to carry "burglary tools," defined as "any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking" (CRS 18-4-205). Given that broad definition, do you know anybody who's NOT a felon?
When one pulls up the code on burglary tools on the internet (http://www.state.co.us/gov_dir/stateleg.html), a 1997 court case is mentioned which establishes "innocent possession" of tools is not a crime. In other words, you have to actually attempt a theft in order to be convicted. For some reason, prosecutors seem to think that charging a person with several technical violations for a single crime is somehow the better course, and the legislature goes along.
A free society is characterized by a simple legal code that's universally known, easy to understand, and fair. A police state is marked by reams of redundant, ambiguous, unnecessary laws that people don't understand or even know about. In a police state, everyone is technically "guilty" of some crime or other, and it's left up to police and prosecutors to decide whom to go after. While cultural shifts usually stretch over long periods of time, it's not too early to ask which type of system we wish to move towards.