by Radley Balko
The officers with SWAT and dynamic-entry experience interviewed for this book say raids are orders of magnitude more intoxicating than anything else in police work. Ironically, many cops describe them with language usually used to describe the drugs the raids are conducted to confiscate. “Oh, it’s a huge rush,” Franklin says. “Those times when you do have to kick down a door, it’s just a big shot of adrenaline.” Downing agrees. “It’s a rush. And you have to be careful, because the raids themselves can be habit-forming.” Jamie Haase, a former special agent with Immigration and Customs Enforcement who went on multiple narcotics, money laundering, and human trafficking raids, says the thrill of the raid may factor into why narcotics cops just don’t consider less volatile means of serving search warrants. “The thing is, it’s so much safer to wait the suspect out,” he says. “Waiting people out is just so much better. You’ve done your investigation, so you know their routine. So you wait until the guy leaves, and you do a routine traffic stop and you arrest him. That’s the safest way to do it. But you have to understand that a lot of these cops are meatheads. They think this stuff is cool. And they get hooked on that jolt of energy they get during a raid.”54
THE 1996 ELECTION MAY HAVE REPRESENTED A TURNING point in public opinion about marijuana. Despite heavy campaigning by the office of Clinton’s drug czar, Barry McCaffrey, and the federal government in general, California voters overwhelmingly passed a ballot initiative to legalize marijuana for medical purposes. Arizona voters passed an even more permissive law, but the state legislature effectively repealed it the following year. Over the next sixteen years, seventeen more states and the District of Columbia would pass medical marijuana laws—eleven of them through ballot initiatives. And all of this led to the historic 2012 election results, in which voters in Washington State and Colorado legalized the drug outright.
But the federal government wasn’t about to let sick people just start smoking pot without a fight. After the 1996 election, McCaffrey called a press conference to denounce California voters. “Nothing has changed,” McCaffrey said. “This is not a medical proposition. This is the legalization of drugs that we’re concerned about. . . . This is not medicine. This is a Cheech and Chong show. And now what we are committed to doing is to look in a scientific way at any proposition that would bring a new medicine to the assistance of the American medical establishment.”55 Naturally, there was no such medicine in the offing.
Months later the Clinton administration announced that doctors who recommended pot to their patients would not only lose their DEA licenses, but could also face criminal charges. In 2000 a federal judge chastised the Clinton administration for threatening doctors who even mentioned the medical benefits of marijuana to their AIDS and cancer patients.
The medical marijuana fight also began what would become a new and especially disturbing chapter in the story of police militarization in America—the use of heavy-handed paramilitary raids to send a political message. When the DEA began raiding marijuana suppliers in California, and then also in the states that subsequently legalized the drug, they generally raided suspects who were either well-known supporters of pot or people who they believed had enormous supplies of the drug. The latter were people running businesses, operating openly under state law. Many of them had obtained business licenses and permits, as well as permission from local law enforcement. These were not dangerous people. The use of tactical teams and frightening raids to shut down medical marijuana suppliers in California was about sending a clear, unambiguous message to other pot suppliers around the state: openly defy the federal government, and you can expect the blunt force of federal power to be brought down upon you.
One of those early raids was on a medical marijuana farm run by Todd McCormick and Peter McWilliams in the Los Angeles neighborhood of Bel Air. Both men had become advocates of the drug after using it to treat symptoms of their own serious illnesses. McCormick smoked pot to treat the pain associated with a cancer treatment that had fused two of his vertebrae. McWilliams had both AIDS and non-Hodgkin’s lymphoma brought on by AIDS. Smoking marijuana relieved his nausea, which helped him keep down the medication he took both to manage his AIDS and during his chemotherapy for the cancer. McWilliams was also a self-help author, and had become an outspoken civil liberties activist. With respect to pot, he made no attempt to hide the fact that while it was saving his life, it also made him feel good. The pot helped him keep down his medicine, dulled the pain associated with his conditions, and took his mind off the fact that he was suffering from them.
None of that was enough to get McCormick and McWilliams out from under the boot of the federal government. McWilliams describes the first moments of the raid:
A hard pounding on the door accompanied by shouts of “Police! Open up!” broke the silence, broke my reverie, and nearly broke down the door. I opened the door wearing standard writer’s attire, a bathrobe, and was immediately handcuffed. I was taken outside while Drug Enforcement Administration (DEA) agents ran through my house, guns drawn, commando-style. They were looking, I suppose, for the notorious, well-armed, highly trained Medical Marijuana Militia. To the DEA, I am the Godfather of the Medicine Cartel. Finding nothing, they took me back into my home, informed me I was not under arrest, and ordered me—still in handcuffs—to sit down. I was merely being “restrained,” I was told, so the DEA could “enforce the search warrant.”56
The two men were unquestionably growing marijuana—the police found some four thousand plants. The entire operation was legal under California law, but because they were brought up on federal charges and tried in federal court, a jury wouldn’t be allowed to hear anything about California law. McWilliams was also barred from telling the jury that, according to his doctors, marijuana was keeping him alive.
Because all of that information would be kept from any potential jury, McWilliams really had no choice but to plead guilty and hope for leniency. After his arrest, McWilliams’s mother put her house up as collateral to help post his bail. One of the conditions of McWilliams’s bail was that he refrain from smoking marijuana. Federal prosecutors told McWilliams’s mother that if he failed a drug test or was caught with even a trace of pot in his possession, they’d take her house. So to protect his mother, McWilliams refrained from using the drug.
He died before he could be sentenced. McWilliams was found dead in his apartment on June 14, 2000. Overcome with nausea, he had choked and aspirated on his own vomit. Tributes popped up all over the political spectrum—conservative icon and pot champion William F. Buckley devoted a column to eulogizing McWilliams. Drug war reformers and libertarians snapped up his book—and probably his most lasting legacy—Ain’t Nobody’s Business if You Do, an eloquent defense of John Stuart Mill’s harm principle.
And yet to those on the other side—the federal prosecutors who went after him, the DEA agents who raided him, Barry McCaffrey, Janet Reno, and Bill Clinton—Peter McWilliams was just more collateral damage.57
WHEN BILL CLINTON TOOK OFFICE IN 1993, CRIME IN America was still climbing. The concept of community policing was growing increasingly popular. Ideally, community policing is the sort of thing implemented by law enforcement officials like Norm Stamper in San Diego, Nick Pastore in New Haven, and, as we’ll see, Joseph McNamara in San Jose. Rather than taking a “call-and-response” approach to policing—which focuses on aspects of policing like increasing response times to 911 calls—cops walk regular beats. They go to community meetings. They know the names of the principals of the schools in their district, and they know and consult with community and neighborhood leaders. It’s a more proactive form of policing, but one that stresses making cops a part of the places they work.
In 1994 Clinton started a new grant program under the Justice Department called Community Oriented Policing Services, or COPS. For its inaugural year, Clinton and leaders in Congress (most notably Sen. Joe Biden) funded it with $148.4 million. The next year funding jumped to $1.42 billion, and it stayed in the neighborhood of $1.5 billion th
rough 1999. COPS grants were mostly intended to go to police departments to hire new police officers, ostensibly for the purpose of implementing more community-oriented policing strategies.
The problem was that there was no universal definition of community policing. Most law enforcement officials and academics agree that community policing is a more proactive approach to policing than call-and-response, but within that general agreement is a huge range of approaches.
The style of community policing embraced by officials like Pastore and Stamper aims to make police a helpful presence in the community, not an occupying presence. But theirs is not the only way to be proactive about law enforcement. Street sweeps, occupation-like control of neighborhoods, SWAT raids, and aggressive anti-gang policies are also proactive. These police activities are aggressive, often violent, and usually a net loss for civil liberties, but they are proactive.
When Clinton, Biden, and other politicians touted the COPS program, they did so with language that evoked the Peace Corps approach (though both Clinton and Biden also supported policies that promoted militarization). Although Clinton described the goal of COPS as “build[ing] bonds of understanding and trust between police and citizens,” it wasn’t clear if he or any other politician really believed this. The majority of the funding in COPS grants was given simply to hire more police officers. The program said little about how those officers should be used, or what sort of attitude they should bring to the job.
Moreover, while Congress regularly makes federal funding contingent on states passing a particular law or policy (think speed limits or drunk driving laws tied to federal highway funding), it’s much more difficult to dictate how a police department puts a big federal grant to work in day-to-day operations. And so as the COPS program threw billions at police departments under the pretense of hiring whistling, baton-twirling Officer Friendlies to walk neighborhood beats, rescue kittens, and maybe guest-umpire the occasional Little League game, many police agencies were actually using the money to militarize.
One of the first to notice what was going on was Portland journalist Paul Richmond. “The unfortunate truth about community policing as it is currently being implemented is that it is anything but community based,” Richmond wrote in a 1997 article for the alternative newspaper PDXS.58 Instead, he wrote, in Portland the grants had resulted in “increased militarization of the police force.” Richmond also found in Portland that, ironically (or perhaps not), a federal program touted as a way to encourage local police to get more involved with local communities was actually federalizing local law enforcement. At the same time Clinton was pushing COPS, the administration and Democrats in Congress were pushing policies like “troops to cops” bills, management training programs for police agencies based on federal models of policing, and a bill that would allow local police departments to fund community policing programs with asset forfeiture money obtained through the Justice Department’s Equitable Sharing Program—the program that allows local police departments to ignore state forfeiture laws by teaming up with the federal government. Another bill would have established a 2,500-person “Federal Rapid Deployment Force”—essentially a small standing army—that states and cities could call upon to swoop in for special crime- and drug-fighting missions. The same bill would also have directed yet more funding to create joint federal-state-local antidrug task forces.
Richmond found that while the overall cops-to-citizens ratio fell in the early 1990s, in Portland, between 1989 and 1994, the number of officers in the city’s tactical operations department jumped from two to fifty-six. The two officers in charge of the city’s tactical teams had formerly been in charge of the city’s Department of Community Policing. Richmond also obtained a copy of the city’s “Community Policing Strategic Plan,” passed by the city council in 1994. Among the plan’s objectives was to increase the police department’s involvement with the federal ATF and the Oregon National Guard. It included implementing at a local level Clinton’s “one strike and you’re out” plan for drug use in public housing, which allowed for raids on public housing tenants, followed by their possible eviction, based on no more than an anonymous tip. Richmond was alarmed that so many progressives in the city were embracing the community policing plan based on little more than its pleasant-sounding name and that it was coming from a Democratic administration in Washington and administered by a progressive city government. The devil was in the details, and no one had bothered to look at the details.
Little of this would have surprised Peter Kraska. All of the police departments he surveyed that had a SWAT team “also claimed to place high emphasis on the democratic approach to community policing.”59 Kraska found that when most law enforcement officials heard “community policing,” they thought of the militarized zero-tolerance model. To them the idea of a police agency simultaneously militarizing and implementing community policing policies was perfectly reasonable.
In fact, two out of three departments Kraska surveyed said their SWAT team was actually part of their community policing strategy. Surprising as that may seem at first glance, it went hand in hand with the increasing use of these tactical teams for routine patrols.
In 2001 a Madison Capital Times investigation found that sixty-five of Wisconsin’s eighty-three local SWAT teams had come into being since 1980—twenty-eight of them since 1996, and sixteen in just the previous year. In other words, more than half of the state’s SWAT teams had popped up since the inaugural year of the COPS program. The newer tactical units had sprung up in absurdly small jurisdictions like Forest County (population 9,950), Mukwonago (7,519), and Rice Lake (8,320). Many of the agents who populated these new SWAT teams, the paper found, had been hired with COPS grants. A local criminologist was incredulous: “Community policing initiatives and stockpiling weapons and grenade launchers are totally incompatible.”60 Perhaps that was true in theory, but not in how community policing was being practiced.
Of course, Byrne grants and the 1033 program had also contributed to the SWAT-ification of the Dairy State. The paper found that in the 1990s, Wisconsin police departments hauled in over 100,000 pieces of military equipment valued at more than $18 million. Columbia County alone—home to all of 52,000 people—made out with 5,000 military items valued at $1.75 million. Some of the bounty was benign, items like computers and office equipment, but it also included “11 M-16s, 21 bayonets, four boats, a periscope, and 41 vehicles, one of which was converted into a mobile command center for the SWAT team.” Columbia County also received “surveillance equipment, cold weather gear, tools, battle dress uniforms, flak jackets, [and] chemical suits.” The county put its tactical team to use by sending it to “Weedstock” in nearby Saulk County, an event where cops in full SWAT attire intimidatingly stood guard while “hundreds of young people gather[ed] peacefully to smoke marijuana and listen to music.”
Moreover, the Capital Times found that the state distributed the Byrne grants, COPS grants, and block law enforcement grants it received from Washington to local police agencies based solely on their drug policing statistics. The size of the disbursements was directly tied to the number of city or county drug arrests. Each drug-related arrest, the paper found, brought in $153 to each local police department. Jackson County quadrupled its drug arrests between 1999 and 2000. Correspondingly, the county’s state-distributed federal law enforcement subsidies quadrupled too. Several jurisdictions brought in enough in grants alone to more than cover the cost of starting a SWAT team.
This is how the game is played. Drug arrests brought in federal money. Federal money and 1033 let police departments buy cool battle garb to start a SWAT team, which they justify to local residents by playing to fears of terrorism, school shootings, and hostage takings. But those sorts of events are not only rare, they don’t bring in any additional money. Drug raids bring in more federal funding, plus the possibility of asset forfeiture. All in the name of community policing.
During the 2008 campaign, Barack Obama and Joe Biden—but especia
lly Biden—credited the COPS program as the reason behind America’s historic crime drop that began in 1994. Biden’s campaign website during the 2008 primaries exclaimed, “In the 1990s, the Biden Crime Bill [an incarnation of the final bill establishing COPS] added 100,000 cops to America’s streets. As a result, murder and violent crime rates went down eight years in a row.” The Justice Department’s inspector general put the new cops number closer to 60,000, and a Heritage Foundation analysis found that, accounting for attrition, the total number of cops on the streets increased between 6,000 and 40,000. More to the point, there’s little evidence that the crime drop was a result of the program. A 2005 report by the Government Accountability Office found that while the violent crime rate dropped 32 percent between 1993 and 2000, at most, the COPS program accounted for 2.5 percent of that decrease, and at a cost of $8 billion. A 2007 analysis in the peer-reviewed academic journal Criminology concluded that “COPS spending had little to no effect on crime.”61
In 2007 I was asked to speak about police militarization at a “crime summit” hosted by Rep. Bobby Scott of Virginia, the Democratic chairman of the House Subcommittee on Crime. During a question-and-answer session, someone asked about community policing and the possibility of restoring full funding to the COPS grants. (The Bush administration had phased the program out.) Everyone seemed to be in favor of the “Peace Corps” model of community policing, and they also seemed to believe that this was what the COPS grants were funding. Pointing to the Madison Capital Times investigation and Kraska’s research, I explained that these idealized visions of community policing didn’t appear to have much to do with how the grants were actually being used. Representative Scott stopped me.
“Are you telling me that our community policing grants are being used to start and fund . . . SWAT teams?”
I responded that, yes, that was what Kraska and the Madison paper had found.