by Radley Balko
Ending any of the federal drug war policies that set all of this in motion would be a step in the right direction.
Halt the Mission Creep
There is no need for regulatory agencies at any level to be conducting SWAT raids. The Department of Education and the Food and Drug Administration don’t need their own SWAT teams. SWAT teams shouldn’t be raiding American Legion halls to break up charity poker games. They shouldn’t be raiding any poker games. Nor should they be used to confront Tibetan monks who have overstayed their visas, or sent to storm the offices of doctors suspected of overprescribing painkillers.22 And the idea of SWAT teams enforcing underage drinking laws, performing occupational licensing inspections, or checking that beer bottles are adequately labeled ought to be so self-evidently preposterous as to be laughable.
That heavily armed assault forces are sent to perform such tasks ought to shock the conscience. The people making these kinds of decisions should lose their jobs. More broadly, the amount of force the government uses to enforce a given law should be based on a reasonable assessment of the threat posed by the person suspected of committing the crime, not by what sort of message the government wants to send about how seriously it takes whatever crime it happens to be enforcing.
Transparency
Cheye Calvo’s bill in Maryland is a good start toward greater transparency. Other states should duplicate it. But there are other policies that would make police departments more transparent and less isolated and detached from their communities. The remarkable advances in and democratization of smart-phone technology have enabled a large and growing portion of the population to record the actions of on-duty police officers. Rather than fighting it, police officials and policymakers ought to embrace this development. Legislatures should pass laws that not only clearly establish a citizen’s right to record on-duty cops but provide an enforcement mechanism so that citizens wrongly and illegally arrested have a course of action. As even many police officials have pointed out, such policies not only expose police misconduct, leading to improvements, but can also provide exonerating evidence in cases where police officers have been wrongly accused.
All forced-entry police raids should be recorded in a tamper-proof format, and the videos should be made available to the public through a simple open records request. If the political will to do so existed, this could be done efficiently and inexpensively. Even better: equip the officers participating in a raid with cameras mounted on their helmets, jackets, or guns. Not only would recording all raids help clear up disputes about how long police waited after knocking, whether police knocked at all, or who fired first, but the knowledge that every raid would be recorded would also encourage best practices among the SWAT teams. Additionally, recordings of raids would provide an accurate portrayal of how drug laws are actually enforced. It’s likely that many Americans aren’t fully aware of just how violent these tactics can be. Perhaps many would still support tactical raids for drug warrants even after being exposed to videos of actual drug raids. But if the drug war is being waged to protect the public, the public should be able to see exactly how the war is being waged.
Police departments should track warrants from the time they’re obtained to the time they’re executed, in a database that’s accessible to civilian review boards, defense attorneys, judges, and, in some cases, the media (acknowledging that the identities of confidential informants need not be revealed). Botched raids should be documented, including warrants served on the wrong address, warrants based on bad tips from informants, and/or warrants that resulted in the death or injury of an officer, a suspect, or a bystander. Police departments should also keep running tabs of how many warrants are executed with no-knock entry versus knock-and-announce entry, how many required a forced entry, how many required the deployment of a SWAT team or other paramilitary unit, and how many used diversionary devices like flash-bang grenades. They should also make records of what these raids turned up. If these tactics are going to be used against the public, the public at the very least deserves to know how often they’re used, why they’re used, how often things go wrong, and what sort of results the tactics are getting.
Local police departments that receive federal funding should also be required to keep records on and report incidents of officer shootings and use of excessive force to an independent federal agency such as the National Institute for Justice or the Office of the Inspector General.
We also need easy-to-find, publicly accessible records of judges and search warrants (and where applicable, prosecutors). The public deserves to know if all the narcotics cops in a given area are going to the same judge or magistrate with their narcotics warrants, or if a given judge hasn’t declined a warrant in twenty years. As more and more courts use computer software to process warrants, it will get easier to compile this sort of information and make it available to the public.
Community Policing
Police departments and policymakers should embrace real community policing. That doesn’t mean sending off millions of dollars in federal grants that merely say “Community Policing” on the envelope. Nor does it mean calling the deployment of SWAT teams to clear out entire neighborhoods “community policing” because such actions involve both “police” and a “community.” Instead, it means taking cops out of patrol cars to walk beats and become a part of the communities they serve. It means ditching statistics-driven policing, which encourages the sorts of petty arrests of low-level offenders and use of informants that foment anger and distrust.
“The emphasis on statistics in the war on drugs is really what encourages the Fourth Amendment cheating,” says Stephen Downing, the former deputy chief at the LAPD. “Everyone wants to be successful at what they do. Police officers are no different. But we have this drug war. And in order to get the goods—the grants and such, which earn you good reviews and promotions—you have to meet your quotas. So you want to get in before the drugs are flushed down the toilet. So you lie about what goes on at the door. You take shortcuts to get your warrant before the drugs are moved. It’s the bad policy that forces that to happen. The big shots will say to the public, ‘We have all these rules and we enforce them. There are no quotas.’ But then internally they’ll say, ‘Why do you only have two arrests this month?’ It’s a system that creates cheaters. The quota system just doesn’t work without cheating.”23
Changing Police Culture
Changing a culture sounds like a tall order. And it probably is. “I think there are two critical components to policing that cops today have forgotten,” says the former Maryland cop Neill Franklin. “Number one, you’ve signed on to a dangerous job. That means that you’ve agreed to a certain amount of risk. You don’t get to start stepping on others’ rights to minimize that risk you agreed to take on. And number two, your first priority is not to protect yourself, it’s to protect those you’ve sworn to protect. But I don’t know how you get police officers today to value those principles again. The ‘us and everybody else’ sentiment is strong today. It’s very, very difficult to change a culture.”24
But high-ranking police officials and the policymakers who oversee them could start by simply not perpetuating the problem. Consider those recruitment videos discussed previously. Think back to high school or college and consider who among your classmates would have been excited by that sort of video. Now think about who among your classmates would have been attracted to a video depicting cops walking a beat, attending meetings of neighborhood groups, or learning the skills necessary to deescalate a potentially dangerous situation instead of shooting the problem away. These are two very different personality types.
“It’s really about a lack of imagination and a lack of creativity,” says Norm Stamper. “When your answer to every problem is more force, it shows that you haven’t been taught and trained to consider other options.”25
The thing is, when law enforcement officials face suspects who present a genuine threat to officer safety, they do tend to be more creativ
e. When the FBI finally located Whitey Bulger in 2010 after searching for him for sixteen years, the reputed mobster was suspected in nearly twenty murders and was thought to be armed with a huge arsenal of weapons. Of all the people who might meet the criteria for arrest by a SWAT team, you’d think Bulger would top the list. He was also aging, in poor physical health, and looking at spending the rest of his life in prison. If ever there was a candidate to go out in a blaze of cop-killing glory, it was Whitey Bulger. And yet instead of sending a tactical team in to tear down Bulger’s door, the FBI did some investigating and learned that Bulger rented a public storage locker. They called him up, pretending to be from the company that owned the facility, and told Bulger someone might have broken into his locker. When he went to the facility to investigate, he was arrested without incident.
Why can’t investigators handle common drug offenders the same way? A big reason is a lack of resources. If your department is serving several drug warrants a day, you just aren’t going to have the personnel to come up with that sort of plan for each one. A second reason is that drug offenders simply aren’t all that likely to shoot at cops, and it’s easier to use violent tactics against people who aren’t going to fire back. It’s by no means a universal rule, but often when police do face a genuinely violent suspect like an escaped fugitive with a violent history, a suspect in a series of violent crimes, or a barricade or hostage situation, they don’t immediately storm the place. They set up a perimeter or try to figure out other ways to make the arrest safely. This again isn’t possible with drug warrants—there are just too many of them. But because drug dealers aren’t all that dangerous, it works out to raid them instead.
Police today are also given too little training in counseling and dispute resolution, and what little training they do get in the academy is quickly blotted out by what they learn on the street in the first few months on the job. When you’re given an excess of training in the use of force but little in using psychology, body language, and other noncoercive means of resolving a conflict, you’ll naturally gravitate toward force. “I think about the notion of command presence,” Stamper says. “When you as a police officer show up at a chaotic or threatening or dangerous situation, you need to demonstrate your command presence—that you are the person in command of this situation. You do this with your bearing, your body language, and your voice. What I see today is that this well-disciplined notion of command presence has been shattered. Cops today think you show command presence by yelling and screaming. In my day, if you screamed, if you went to a screaming, out-of-control presence, you had failed in that situation as a cop. You’d be pulled aside by a senior cop or sergeant and made to understand in no uncertain terms that you were out of line. The very best cops I ever worked around were quiet. Which isn’t to say they were withdrawn or passive, but they were quiet. They understood the value of silence, the powerful effect of a pause.”
Stamper adds that these things aren’t emphasized anymore. “Verbal persuasion is the first tool a police officer has. The more effective he or she is as a communicator, the less likely it is he or she is going to get impulsive—or need to.”26
Neill Franklin suggests that deteriorating physical fitness at police departments can also lead to unnecessary escalations of force—another argument in favor of foot patrols over car patrols. “When I was commander of training in Baltimore, one of the first things I did was evaluate the physical condition of the police officers themselves,” Franklin says. “The overweight guys were the guys who knew very little about arrest control and defensive strategy. Being a police officer is a physically demanding job. You can’t be so out of shape. When you are, you’re less confident about less lethal force. It can get so that the only use of force you’re capable of using is a firearm. You also fear physical confrontation, so you’re more likely to reach for your firearm earlier. Getting cops in shape is a confidence builder, and it gets people away from relying too much on the weapons they have on their belt.”27
More generally, politicians should also be held accountable when they use war rhetoric to discuss crime and illicit drugs. Words do have an impact on the way police officers approach their jobs, and the way they view the people with whom they interact while on patrol. If we want to dissuade them from seeing their fellow citizens as the enemy, we need to stop our political leaders—the people who set the policies and appropriate the budgets for those officers—from referring to their fellow citizens as the enemy.
Accountability
In numerous states across the country, police unions have lobbied legislatures to pass variations on a “law enforcement bill of rights.” Though they vary from state to state, the general thrust of these laws is to afford police officers accused of crimes additional “rights” above and beyond what regular citizens get. Or as Reason magazine’s Mike Riggs puts it, the intent of such laws is “to shield cops from the laws they’re paid to enforce.” These laws have made it nearly impossible to fire bad cops in many jurisdictions, and worse, they have instilled in them the notion that they’re above the law—and above the regular citizens they’re supposed to serve. Investigations of how bad cops are able to stay on the job have become a perennial newspaper undertaking. Recent exposés have tackled the flawed systems in Florida, Georgia, Louisiana, West Virginia, and Chicago.
Part of the problem is that union-management negotiations in law enforcement are decidedly different from those in the private sector. For one, there’s little downside for a mayor or city council to give everything away. Voters rarely get angry at politicians for being too generous with the police. But when city officials face tight budgets, they can use accountability as a negotiating chip, offering more job protections for cops accused of wrongdoing in exchange for concessions on pay or benefits. A CEO who negotiates away his ability to hold his employees accountable is likely to feel the repercussions on his bottom line—it affects him directly. When city officials make it more difficult to fire bad cops, they are rarely affected that way. At worst, a lawsuit might take a bite out of a city budget. But no cops will be harassing or beating the politicians themselves. That happens to other people.
Police unions also help enforce the “Blue Code of Silence,” the unwritten rule that police officers never rat out or testify against other police officers. A stark example from several years ago in New Mexico involved, oddly enough, former race car driver Al Unser Sr. In 2006 Albuquerque police officer Sam Costales testified against some deputies from the Bernalillo County Sheriff’s Department. The deputies had gotten into a confrontation with Unser that resulted in Unser’s arrest and criminal charges. Costales had witnessed the incident. At Unser’s trial, he testified that Unser did not assault or threaten officers from the Bernalillo County Sheriff’s Department, as claimed in police reports. Costales’s testimony helped Unser win an acquittal.
None of the Bernalillo deputies was disciplined. But one officer was: Sam Costales. His own chief opened an internal affairs investigation of him. Costales’s transgression: he wore his police uniform when he testified in Unser’s case. Albuquerque cops apparently are permitted to wear the uniform when they’re testifying for the prosecution, but not when they’re testifying for the defense. At that point, the Albuquerque police union got involved—but not to protect Officer Costales. He may have been disciplined for telling the truth, but for the union he committed the far more serious offense of telling an unflattering truth about his fellow cops. James Badway, secretary of the Albuquerque Police Officers Association, apologized for Costales’s actions in an email message to the Bernalillo sheriff:
As Secretary of the APOA I feel it is my duty and responsibility to apologize to you and your officers. Ofc. Sam Costales does not represent APD/APOA. The majority of our officers look at the BCSO as our brother and sisters in blue. We are embarrassed and ashamed of Ofc. Costales’s testimony in the Unser trial. If there is anything we can do to rebuild the damage caused by Sam please let me know.28
Only in law enforcem
ent would a union rep apologize to the management for the actions of one of its members. Former narcotics cop Russ Jones says that unions reinforce the notion among cops that it’s just them and their brother cops against the world. “Police unions have really gotten to the point where they protect bad police officers, and they shield management from having to take any responsibility,” Jones says. “Everybody involved in the bargaining wins. The citizens end up the losers, in all aspects.”29
Perhaps the biggest problem with police unions, however, is that they present a major obstacle to real reform. Their political clout is difficult to surmount. Democrats don’t cross them because of the traditional alliance of unions and public employees. Republicans rarely cross them because of the party’s law-and-order reputation. But awareness of their formidable influence and likely opposition to any accountability efforts is at least a start.
Good ideas for accountability policies include civilian review boards, but only if they have subpoena power, are granted the authority to impose discipline, and can’t be overruled by arbitrators. Unfortunately, there aren’t many in the country that have those powers. And as we saw with the death of Alberta Spruill and other cases, even a major, headline-grabbing scandal isn’t enough to establish credible civilian oversight.
The most productive accountability policy—and thus the most controversial and least likely to be adopted—would be to impose more liability on police officers who make egregious errors. Under the qualified immunity from civil lawsuits currently afforded to police under federal law, a police officer can’t be sued for mere negligence—or even for gross negligence that results in a fatality. To even get into court against a police officer, a plaintiff must show not only that a police officer intentionally violated the plaintiff’s constitutional rights, but that said rights were well established at the time they were violated. With this protection, police officers aren’t required to keep informed on the latest court decisions that pertain to their job. In fact, in a perverse way, it even discourages police departments and officers from doing so. A cop who is aware that he was violating someone’s rights is much more likely to be found liable than a cop who isn’t.