by Radley Balko
The Christopher Commission made a number of recommendations, but one made much more of a splash than the others: it recommended that Daryl Gates be removed as chief of police. Gates announced his intent to resign on July 13, 1991, three days after the Christopher report came out. But by the time the LA riots broke out the following April, Gates was still in office.
Sparked by a jury’s decision to acquit the LAPD officers who beat Rodney King, the riots themselves lasted four days, although there were flare-ups of violence in the days that followed. In all, 13,500 troops from the California National Guard, the Third Battalion First Marine, and the Fortieth Infantry Division and Seventh Infantry Division of the US Army were sent in to stop the violence. There were 53 fatalities, over 2,000 injured, and property damage of more than $1 billion.
The Watts riots in 1965 had made Daryl Gates a rising star within the LAPD. The helplessness that Gates and his officers felt while getting shot at by snipers in what had become an urban war zone had inspired him to create and push for the SWAT team, his most influential and lasting legacy. Twenty-seven years later, the riots after the Rodney King verdict effectively ended Gates’s career. By then, SWAT teams across America numbered in the thousands. Most of them weren’t responding to riots or Black Panther barricades or shootings like the one on Surry Street—most SWAT teams were spending most of their time breaking down doors on drug raids.
Though rioting gave birth to Gates’s legacy in 1965, his proudest legacy was powerless to stop the rioting in 1992. Order wasn’t restored until the National Guard showed up. One other big difference between Watts and the 1992 riots: far more Americans were beginning to see problems with police brutality. When Gallup asked, “Do you think there is police brutality in your area?” in 1967, just 6 percent said yes. In July 1991, it was 39 percent.17
On June 28, 1992, Gates resigned from the Los Angeles Police Department—this time for real.
AS NOTED PREVIOUSLY, AFTER IMPLEMENTING MANY OF the community policing practices proposed by Norm Stamper, San Diego was seeing some progress. Crime had started to go down in the city even as it continued to rise elsewhere in the country, and police-community relations were improving. By 1992, Stamper was Burgreen’s right-hand man. Burgreen asked Stamper to conduct an audit of the entire department, instructing his top deputy to “concentrate on our warts.” After conducting his audit, Stamper made a number of proposals, but one of them was particularly interesting. He wanted to “demilitarize” the department.
Stamper knew of a few smaller police departments that had tried demilitarizing to various degrees, with mixed results. Back in 1970 the town of Lakewood, Colorado, built a new department from the ground up. Police Chief Pierce Brooks wanted a department that looked more like it was part of the community than an outside force charged with keeping the community in line. So the cops wore slacks and blazers instead of military-like uniforms. Instead of using Army ranks like sergeant or lieutenant, they took titles like “field advisor.” Rank-and-file cops were called “agents.” The Lakewood experiment was short-lived: by 1973, they were back to using traditional titles and the conventional police blues. Similar efforts in Menlo Park and Beverly Hills, California, hadn’t gone quite as far, but had been somewhat more successful.
Stamper’s proposal was relatively mild by comparison. As he writes in his book Breaking Rank:
I knew there’d be a shit-rain of opposition—military titles are a cultural icon in civilian policing, as much a part of the cop culture as mustaches, sidearms, and doughnuts. But, win or lose, I thought it was important to air the rationale behind “demilitarization.” I hoped to encourage a departmentwide dialog on the principles of a more “democratic,” less militaristic police force. And since language structures reality, I was convinced that our military nomenclature stood between us and the community.18
Stamper’s idea was to change the titles of “sergeant,” “lieutenant,” and “captain” to titles less evocative of the military. He suggested looking to federal law enforcement: the FBI, for instance, had “agents,” “special agents,” and “supervisors.” Burgreen was dubious, not because he necessarily disagreed, but because he knew the idea would be dead on arrival within the department. He gave Stamper two months to try it out.
Burgreen was right. The department erupted in protest. Letters to the editor of the department’s internal newsletter howled with derision. The San Diego Union-Tribune got wind of the idea and spat on it in an editorial.
Stamper had a few supporters, but only a few. (One of them, oddly enough, was former Reagan attorney general Ed Meese.) Stamper writes in his book about one lieutenant who initially scoffed at the proposal, but later came around. “The more I thought about it the more I realized, we’re not the military, we’re cops. We’re community cops. We ought to have titles that make sense to the community. What does ‘lieutenant’ or ‘sergeant’ mean to the average citizen?”
A related question: what effect do such titles have on the average cop? Still, as Stamper writes, of the department’s 2,800 employees, “the lieutenant’s change of heart brought the number of converts up to approximately eleven.”
Stamper’s proposal didn’t involve demilitarizing police tactics. He wasn’t suggesting that they disband the SWAT teams, or get rid of their guns, or even switch to slacks and blazers. All he was proposing was that they ditch the military titles and jargon. And there was no way it was ever going to happen.19
But Stamper wasn’t the only high-ranking law enforcement official growing concerned about militarization in the 1990s. In a 1993 article for the FBI’s Law Enforcement Bulletin, Lt. Tom Gabor of the Culver City, California, Police Department argued that SWAT teams were becoming too ubiquitous and being used in ways that were inappropriate for police work. Gabor wrote that the massive rise in deployments of SWAT teams across the country was more about “justifying the costs of maintaining [the] units” than about maintaining public safety. Even as early as 1993, Gabor had already noticed that “in many organizations, patrol leaders feel pressured to call for SWAT assistance on borderline cases, even though field supervisors believe that patrol personnel could resolve the incident.”20
In Wisconsin, Marquette County sheriff Rick Fullmer actually disbanded his department’s SWAT team in 1996. “Quite frankly, they get excited about dressing up in black and doing that kind of thing,” Fullmer told the Madison Capital Times. “I said, ‘This is ridiculous.’ All we’re going to end up doing is getting people hurt.”21
In New Haven, Connecticut, Police Chief Nick Pastore was facing growing pressure to collect military gear from the Pentagon and to use his SWAT team in situations where he thought it was inappropriate. Pastore told the New York Times that outfitting cops in battle garb “feeds a mind-set that you’re not a police officer serving a community, you’re a soldier at war. I had some tough-guy cops in my department pushing for bigger and more hardware. They used to say, ‘It’s a war out there.’ They like SWAT because it’s an adventure.” Pastore also worried about the martial rhetoric. “If you think everyone who uses drugs is the enemy, then you’re more likely to declare war on the people.”22 In another interview, with The Nation, Pastore pointed out that before he took over, New Haven’s SWAT team was being called out several times a week. “The whole city was suffering trauma,” he said. “We had politicians saying ‘The streets are a war zone, the police have taken over,’ and the police were driven by fear and adventure. SWAT was a big part of that.”23 After Pastore took over, New Haven’s SWAT team was called out just four times in all of 1998. Lo and behold, reserving the SWAT team for true emergencies didn’t lead to a criminal takeover of New Haven. In fact, the city’s crime rate dropped at a brisker pace than that of the rest of Connecticut (which also dropped)—from 13,950 incidents in 1997 to 9,455 in 2000.24
In Colorado, the Denver Post ran an article in 1995 about three area deaths from no-knock drug raids in the area in thirty-three months—including a sixteen-year-old boy, a deputy sherif
f, and a fifty-four-year-old grandfather of eight. “Such raids are very dangerous,” said Pitkin County sheriff Robert Braudis. “They are the closest thing I can think of to a military action in a democratic society.” Braudis explained that it was far safer to conduct surveillance, to learn a suspect’s routine, and to then do “a quick, quiet arrest when a suspect is in the open.” As for possible destruction of evidence, he said that his department would have the water shut off before serving a warrant (by knocking at the door and waiting for an answer). In some cases, they had arranged for a plumber to set up a “catch net” to capture anything flushed after police arrived to serve the warrant. But Braudis said that his concern went beyond the SWAT tactics. “The ‘war on drugs’ is an abysmal failure,” he said. “Even the term creates a dangerous war mentality.”25
In 1998 the city of Albuquerque, New Mexico, commissioned an outside investigation after a series of questionable shootings and SWAT incidents. In one case that made national news, a SWAT officer said to his colleagues, “Let’s go get the bad guy,” just before the team went to confront thirty-three-year-old Larry Walker. The “bad guy” wasn’t a terrorist, a killer, or even a drug dealer, but a depressed man whose family had called the police because they feared he might be contemplating suicide. The SWAT team showed up in full battle attire, including assault rifles and flash-bang grenades. They found Walker “cowering under a juniper tree,” the New York Times later reported, then shot him dead from forty-three feet away. The city brought in Sam Walker, a well-regarded criminologist at the University of Nebraska, to evaluate the police department’s use of lethal force. Walker was astonished by what he found. “The rate of police killings was just off the charts,” Walker told the Times. The city’s SWAT team, he said, “had an organizational structure that led them to escalate situations upward rather than de-escalating.” The city then brought in Toledo, Ohio, police chief Jerry Galvin to take over its police department. Galvin immediately disbanded the SWAT team, toned down the militarism, and implemented community policing policies. He told the Times, “If cops have a mindset that the goal is to take out a citizen, it will happen.”26
THE ELECTION OF BILL CLINTON IN 1992 GAVE HOPE TO some in the drug reform community that an admitted pot smoker who had some ties to the counterculture during his college days might bring a less aggressive and less militaristic approach to federal drug policy. Those hopes were dashed pretty quickly.
Clinton and his appointees weren’t as bellicose as Reagan and Bush or Meese and Bennett, but the policies that Clinton implemented showed little understanding or appreciation of the Symbolic Third Amendment. In 1993, for example, the Justice Department and the Defense Department entered into a formalized technology and equipment sharing agreement. Not only were American police forces becoming more militarized, the thinking went, but in places like Korea the US military was taking on more of a policing role. It only made sense for the two institutions to work more closely together. Attorney General Janet Reno explained this strategy in a speech to defense and intelligence specialists. “So let me welcome you to the kind of war our police fight every day,” Reno said. “And let me challenge you to turn your skills that served us so well in the Cold War to helping us with the war we’re now fighting daily in the streets of our towns and cities across the nation.”
In 1997 the resulting Department of Justice and Department of Defense Joint Technology Program released a report on the new agency’s anniversary. Many of the projects the program developed seem relatively innocuous, such as using police and military experience to develop better body armor or developing technology to locate snipers, which could be of benefit to both institutions. But the report also includes some more troubling projects, such as developing “less lethal, faster acting pyrotechnic devices such as flash-bang grenades” and “a gas-launched, wireless, electric stun projectile with a self-contained power supply” that “adheres to clothing and imparts a strong electric shock.” The report discusses developing sound cannons for use in crowd control and a project to develop “miniature, low-cost, wireless, modular devices that can locate, identify, and monitor the movement of selected individuals.”
Most concerning, however, is the language in which the report describes the relationship between the police and the military. While acknowledging at the outset that the two institutions have very different roles, the report asserts that those distinctions are eroding, particularly with respect to the war on drugs and the war on terrorism.
In one particularly troubling passage, the report cautions that both institutions need to be less transparent about the use of force. Another factor in how the military and law enforcement apply force, the report notes, is the greater presence of members of the media, who are observing, if not recording, situations in which force is applied. Even the lawful application of force can be misrepresented to or misunderstood by the public. More than ever, the report concludes, the police and the military need to be highly discreet to keep applications of force out of the public eye.27
There were other indications that Clinton didn’t appreciate the distinction between the military and civilian policing. He nominated Barry McCaffrey—an actual retired general—to be his drug czar. There was also his “troops to cops” program, which subsidized police departments for hiring returning veterans. While there is nothing inherently wrong with allowing veterans to apply to become police officers, providing a federal grant enabling them to do so risked incentivizing police departments to give a pass to vets hardened or traumatized by war who might be psychologically unfit for the job. But more broadly, the program demonstrated a belief that the two jobs are similar—that because both troops and cops carry guns, wear uniforms, and are authorized to use force, anyone trained as a soldier naturally makes a good cop. This is certainly possible. But there’s little about military service that would make a soldier a better candidate to become a police officer than other applicants—at least as the job of police officer is properly understood. And there’s a good argument to be made that soldiers who have seen combat ought to get extra scrutiny before they’re given a badge and a gun.
Clinton was also responsible for one policy in particular that not only encouraged paramilitary raids on low-level offenders—even users—but by its very nature also directed such raids only at the poor. In March 1996, an ABC News crew went along on a no-knock SWAT raid in Toledo, Ohio. The fourteen-member squad performed a “dynamic entry” into the house, threw its occupants to the ground at gunpoint, then tore the place apart in a drug search. They found less than an ounce of pot in the bedroom of a teenager who lived in the house with his family. You might think that ABC News broadcast the raid to show an abuse of police power, that the raiding SWAT team felt embarrassed about using such force for such a petty crime. But in fact the raid was broadcast because it was considered a successful enforcement of a new federal policy.
The home the police had raided was public housing. Under the Clinton administration’s new “one strike and you’re out” policy, any drug offense—even a misdemeanor—committed in public housing supported by federal funding was grounds for eviction. The policy applied even if the drug offense was committed by someone who didn’t live in the home or was committed without the tenant’s knowledge.28 It was a popular idea. After all, why should taxpayers subsidize the drug habits of people on public assistance? Of course, there was no similar policy for recipients of corporate welfare, or for elected officials who received government paychecks. No matter. The ABC News report characterized the raid as a small victory in the war on drugs.29
PRIOR TO 1995, THE US SUPREME COURT HAD ALWAYS considered cases involving the knock-and-announce rule (and there hadn’t been very many of them) either under the rule’s common-law tradition or under the section of the US Criminal Code describing the conditions under which a federal agent is permitted to force his way into a private residence.30 Though the knock-and-announce requirement is included in that law, the Court had yet to state that the rule—and
thus the Castle Doctrine—was included in the protections against unreasonable search and seizure afforded by the Fourth Amendment. Justice Brennan had argued for that position in Ker v. California but fell one vote short of getting a majority.
In the 1995 case Wilson v. Arkansas, the Court unanimously ruled that the rule is part of the tapestry of the Fourth Amendment.31 Justice Clarence Thomas relayed the long common-law history of the rule, as well as the events prior to the American Revolution that gave rise to the Fourth Amendment. But Thomas also noted the common-law exceptions to the rule—exceptions that, as Brennan pointed out in Ker, didn’t really exist prior to 1962 but that US courts, Congress, and state legislatures had since recognized anyway. Thomas cautioned that the Court’s ruling “should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Here he was referring to the two most widely recognized “exigent circumstances” that allow police to ignore the knock-and-announce rule: destruction of evidence and the threat of harm to police officers. After waxing historic on the long and storied tradition of the Castle Doctrine and the knock-and-announce rule, Thomas had finally ruled—with unanimous agreement from his colleagues—that the rule is part and parcel of the Fourth Amendment . . . but then took note of the exceptions to the rule that would allow police to all but ignore it.