Rise of the Warrior Cop
Page 38
Some commentators like University of Tennessee law professor Glenn Reynolds have suggested that SWAT teams that conduct forced-entry raids be held to a strict liability standard. If they raid the wrong house, they’re liable for damages no matter what; whether the mistake was due to a bad informant, a mistyped address, or just a bad investigation wouldn’t matter. Such a policy would be difficult to apply in many cases. For example, if police claim in the affidavit that they’re looking for a large stash of heroin but raid a house that turns up only a small amount of pot, would that be considered a “wrong house” raid? Still, adopting the policy just for cases of clear, unambiguous mistakes would probably encourage more caution, more restraint, and fewer errors.
THE MOST DIFFICULT CHANGE IS THE ONE THAT’S PROBABLY necessary to make any of these others happen. The public needs to start caring about these issues. The proliferation of “cop watch” sites, citizen-shot video of police misconduct, and coverage of police abuse incidents by a bevy of online media is encouraging. Another good sign is the fact that this growing skepticism of police has been accompanied by a decline in violence against police officers themselves. Activists are fighting police abuse with technology and information, not with threats and violence. But while exposing individual incidents of misconduct is important, particularly to the victim of the misconduct, it’s more important to expose the policies that allow misconduct to flourish. Bad systems will continue to turn out bad results. And bad systems will never be reformed until and unless policymakers and politicians (a) are convinced there is a problem, and (b) pay a political price for not addressing it. Yes, trends that develop over years or decades can gradually normalize things that we might not have tolerated had they been imposed on us all at once. But it’s still rather remarkable that domestic police officers are driving tanks and armored personnel carriers on American streets, breaking into homes and killing dogs over pot. They’re subjecting homes and businesses to commando raids for white-collar and even regulatory offenses, and there’s been barely any opposition or concern from anyone in Congress, any governor, or any mayor of a sizable city. That, more than anything, is what needs to change.
CONCLUSION
The war on drugs . . . I liken it to the Vietnam War. Hit and miss, there is no clear win—we don’t know if we’re gaining ground or not. What we want to do is we want to change our strategy. We want to make this more like a Normandy invasion.
—FORMER CLAYTON COUNTY, GEORGIA SHERIFF VICTOR HILL
The way these people were treated has to be judged in the context of a war.
—HALLANDALE, FLORIDA, ATTORNEY RICHARD KANE, AFTER CITY POLICE MISTAKENLY RAIDED EDWIN AND CATHERINE BERNHARDT
I have my own army in the NYPD—the seventh largest army in the world.
—NEW YORK CITY MAYOR MICHAEL BLOOMBERG
Officers’ safety comes first, and not infringing on people’s rights comes second.
—PHILADELPHIA POLICE DEPARTMENT SPOKESPERSON FRAN HEALY
My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we’ll put them on the ground, take the gun away and then decide whether you have a right to carry it.
—MILWAUKEE POLICE CHIEF ED FLYNN, DESCRIBING HOW HIS OFFICERS WOULD HARASS LEGAL GUN OWNERS, IN SPITE OF WISCONSIN STATE LAW
Given that the Founders could never have anticipated police as they exist today, maybe Are cops constitutional? is the wrong question. A better one might be Are today’s police forces consistent with the principles of a free society?
It’s difficult to say that they are. Police today are armed, dressed, trained, and conditioned like soldiers. They’re given greater protections from civil and criminal liability than normal citizens. They’re permitted to violently break into homes, often at night, to enforce laws against nonviolent, consensual acts—and even then, often on rather flimsy evidence of wrongdoing. Negligence and errors in judgment that result in needless terror, injury, and death are rarely held accountable. Citizens who make similar errors under the same circumstances almost always face criminal charges, usually felonies.
Police today share a bond tighter than that shared by soldiers who fight in wars together. There’s a strict code of omerta that’s enforced more ruthlessly and thoroughly than in any other non-criminal profession. Cops who rat out other cops tend not to remain cops for very long. Lying and exaggerating in police reports and on the witness stand isn’t just common, it’s routine and expected. It’s a part of the job.
Today, there are entire communities in which a large percentage of residents refuse to talk to police, under any circumstances. These so-called “Stop Snitch’n” movements are often derided by politicians and police officials, but there’s a pretty astonishing revelation driving them: There are large swaths of the population who fear the people who are supposed to protect them from criminals more than they fear the criminals.
As I’ve written and spoken on this issue over the years, I’ve even had current and former members of the military tell me the object to the word militarization—not because they disagree with the basic premise of what’s happened to police departments in recent years, but because from their own experience, the military is more accountable and disciplined than many police departments today. Several have even told me that military raids on residences where they suspected insurgents may be hiding are done more carefully and with more deference to the rights of potential innocents than some of the SWAT raids they see and read about today. The police today may be more militarized than the military.
Police officers today are a protected class, one no politician wants to oppose. Law enforcement interests may occasionally come up short on budgetary issues, but legislatures rarely if ever pass new laws to hold police more accountable, to restrict their powers, or to make them more transparent.
In short, police today embody all of the threats the Founders feared were posed by standing armies, plus a few additional ones they couldn’t have anticipated.
This isn’t to say we’re in a police state, a term that’s often misused. Generally speaking, we’re free to travel. We don’t face mass censorship. We still have habeus corpus. And the odds of any single person being victimized by a wrong-door raid, shot or beaten by a cop, or otherwise victimized by militarized police violence are slim to nil. But perhaps we have entered a police state writ small. At the individual level, a police officer’s power and authority over the people he interacts with day to day is near complete. Absent video, if the officer’s account an incident differs from that of a citizen—even several citizens—his superiors, the courts, and prosecutors will nearly always defer to the officer. If other officers are nearby, there are policies in place—official and unofficial—to encourage them to back one another up. Even if the officer does violate the citizen’s rights, the officer is protected by qualified immunity.
In the Introduction, I noted that this is not an anti-cop book. And it isn’t. Despite all of this, there are still good cops. A lot of them. But we have passed laws and policies that have elevated police officers above the people they serve. As Tim Lynch of the Cato Institute has written, you could make a good argument that police should be held to a higher standard than regular citizens. And you could make a good argument they should be held to the same standard. But it’s hard to conceive of a convincing argument that they should be held to a lower one. But that’s exactly what we’ve done.
Systems governed by bad policies and motivated by incentives will produce bad outcomes. Today, laws, policies, and procedures select for personalities attracted to aggressive, antagonistic policing; isolate police from the communities they serve; and condition police officers to see the people they serve—the people with whom they interact every day—as the enemy. We shouldn’t then be surprised when cops then begin to see a world divided between cops and their families . . . and everybody else.
Perhaps most distressing of all, not only does the military continue to provide surplus weapons to domestic police agencies
, but thanks to the Department of Homeland Security grants, military contractors are now shifting to market resources toward police agencies. Worse, a new industry appears to be emerging just to convert those grants into battle-grade gear. That means we’ll soon have powerful private interests, funded by government grants, who will lobby for more government grants to pay for further militarization—a police industrial complex. It’s a threshold that will be difficult to un-cross.
No, America today isn’t a police state. Far from it. But it would be foolish to wait until it becomes one to get concerned.
NOTES
Introduction
1. Roger Roots, “Are Cops Constitutional?” Seton Hall Constitutional Law Journal 11 (2001): 685–757.
2. Ibid., p. 757.
3. Samuel Walker, Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1998), pp. 25–28.
4. Roots, “Are Cops Constitutional?” p. 689.
5. Ibid., p. 692.
6. Timothy Egan, “Soldiers of the Drug War Remain on Duty,” New York Times, March 1, 1999.3.
Chapter 1: From Rome to Writs
1. The Rome narrative is from Sandra J. Bingham, “The Praetorian Guard in the Political and Social Life of Julio-Claudian Rome,” PhD diss., University of British Columbia (August 1997); Robert H. Langworthy and Lawrence F. Travis III, Policing in America, 3rd ed. (Englewood Cliffs, NJ: Prentice-Hall, 2003), pp. 40–42; and “Praetorian Guard,” Globalsecurity.org, available at: http://www.globalsecurity.org/military/world/spqr/army-praetorian-guard.htm (last accessed December 26, 2012).
2. The history of British policing through the nineteenth century is from Langworthy and Travis, Policing in America, pp. 54–58; and Erik H. Monkkonen, “History of Urban Police,” in Modern Policing, ed. Michael Tonry and Norval Morris (Chicago: University of Chicago Press, 1992), pp. 547–580.
3. Cicero quoted in William Blackstone, “Of Offenses Against the Habitations of Individuals,” ch. 16 in Commentaries on the Laws of England, book 4 (1753).
4. Olmstead v. United States, 277 US 438 (1928) (Brandeis, dissenting).
5. Semayne’s Case, 77 Eng. Rep. 194, 195 (KB 1603).
6. Richard Burn, Justice of the Peace and Parish Officer 87, 6th ed. (1758).
7. Case of Richard Curtis, 168 Eng. Rep. 67 (Crown 1757).
8. The Otis narrative is summarized from James M. Farrell, “The Writs of Assistance and Public Memory: John Adams and the Legacy of James Otis,” New England Quarterly 79 (4, 2006): 533–556; and James R. Ferguson, “Reason in Madness: The Political Thought of James Otis,” William and Mary Quarterly 36 (1979): 194–214.
9. John Adams, The Works of John Adams, Second President of the United States, vol. 2, app. A (Boston: Little, Brown & Co., 1850), pp. 523–525. The Adams quote also appears in Jedidiah Morse, Annals of the American Revolution (s.n., 1824), p. 225.
Chapter 2: Soldiers in the Streets
1. Engblom v. Carey, 677 F.2d 957 (1979). The US Court of Appeals for the Second Circuit ruled that the Third Amendment is incorporated to the states, that under the amendment National Guard troops are “soldiers,” and that tenants are included as “owners.”
2. See Tom W. Bell, “‘Property’ in the Constitution: The View from the Third Amendment,” William and Mary Bill of Rights 20 (2012); and Tom W. Bell, “The Third Amendment: Forgotten but Not Gone,” William and Mary Bill of Rights 2 (1, 1993): 117.
3. Robert A. Gross, “Public and Private in the Third Amendment,” Valparaiso University Law Review 26 (1, 1991): 215–221.
4. The history of quartering in England is from William S. Fields and David T. Hardy, “The Third Amendment and the Issue of Standing Armies,” American Journal of Legal History (Temple) 35 (4, 1991): 393–431.
5. Gary B. Nash, The Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America (New York: Viking, 2005), p. 44.
6. Fields and Hardy, “The Third Amendment and the Issue of Standing Armies,” p. 416.
7. John Philip Reid, Constitutional History of the American Revolution (Madison: University of Wisconsin Press, 1986), p. 194.
8. Oliver Morton Dickerson, Boston Under Military Rule, 1768–1769: As Revealed in a Journal of the Times (Chapman & Grimes, 1936).
9. Alexander Hamilton, “Federalist No. 8: The Consequences of Hostilities Between the States,” November 20, 1787.
10. The standing army debate is from Fields and Hardy, “The Third Amendment and the Issue of Standing Armies”; and from The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, 2nd ed., vol. 3, ed. Jonathan Elliot (Burt Franklin, 1888).
11. The Shays’ Rebellion narrative is from Christopher Collier and James Lincoln Collier, Decision in Philadelphia: The Constitutional Convention of 1787 (New York: Ballantine Books (1987), pp. 12–13.
12. Charles G. Loring, closing argument in the Thomas Sims hearing, April 8, 1851, available at: http://archive.org/stream/trialthomassims00circgoog#page/n4/mode/2up (accessed September 5, 2012).
13. Jacqueline Jones, Saving Savannah: The City and the Civil War (New York: Random House, 2008), p. 9. As a tradesman, Sims had received better treatment than most slaves and could earn wages for his work. Even though he was required to give his wages to his mother, who was required to give them to Potter, he could have accumulated enough money before running away to bribe enough crew members to get himself to Boston.
14. The text of the Fugitive Slave Act of 1850 is available at: http://www.usconstitution.net/fslave.html (accessed September 1, 2012).
15. For an excellent history of the hearings of Thomas Sims and Anthony Burns and of the consequences of the Fugitive Slave Act of 1850, see Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860 (Chapel Hill: University of North Carolina Press, 1970).
16. The Burns narrative is from Charles Emery Stevens, Anthony Burns: A History (John P. Jewett and Co., 1856), available at: http://docsouth.unc.edu/neh/stevens/stevens.html (accessed September 16, 2012); Albert J. Von Frank, The Trial of Anthony Burns: Freedom and Slavery in Emerson’s Boston (Cambridge, MA: Harvard University Press, 1998); and Chuck Leddy, “Boston Combusts: The Fugitive Slave Case of Anthony Burns,” Civil War Times (May 2007).
17. Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878 (DIANE Publishing, 1996), p. 134.
18. Ibid.
19. Puleo, A City So Grand, p. 33.
20. Coakley, The Role of Federal Military Forces, p. 137.
21. Ibid., p. 136.
22. Ibid.
23. “Official Opinions of the Attorneys General of the United States, Advising the President and Heads of Departments in Relation to Their Official Duties,” vol. 6 (R. Farnham, 1856), pp. 466–474, available at: http://books.google.com/books?id=xY5JAQAAIAAJ&dq (accessed September 16, 2012).
24. The Reconstruction narrative is from Coakley, The Role of Federal Military Forces, pp. 129–140.
Chapter 3: A Quick History of Cops in America
1. Samuel Walker, Popular Justice, 2nd ed. (New York: Oxford University Press, 1998), p. 16.
2. Ibid., p. 170.
3. Eric Burns, Spirits of America: A Social History of Alcohol (Philadelphia: Temple University Press, 2004) p. 229.
4. Burns, Spirits of America, p. 229.
5. The history of early policing in the United States is from Walker, Popular Justice; Roger Lane, “Urban Police and Crime in Nineteenth-Century America,” and Eric H. Monkkonen, “History of Urban Police,” both in Modern Policing, ed. Michael Tonry and Norval Morris (Chicago: University of Chicago Press, 1992); Robert H. Langworthy and Lawrence F. Travis III, Policing in America (Englewood Cliffs, NJ: Prentice-Hall, 2003); Burns, Spirits of America; and Samuel Walker and Charles M. Katz, The Police in America, 7th ed. (New York: McGraw-Hill, 2011).
6. See Walker, Popular Justice, pp. 173–175.
8. The Bonus March is summarized from Roger Daniels, The Bonus March: An Episode of the Great Depression (Westport, CT: Greenwood Publishing, 1971).
9. “The Bonus Army: How a Protest Led to the GI Bill,” Radio Diaries (National Public Radio), November 11, 2001, available at: http://www.npr.org/2011/11/11/142224795/the-bonus-army-how-a-protest-led-to-the-gi-bill (accessed August 10, 2012).
10. “1932 Bonus March,” GlobalSecurity.org, available at: http://www.globalsecurity.org/military/ops/bonus-march.htm (accessed September 1, 2012).
11. George S. Patton, “Federal Troops in Domestic Disturbances” (1932), available at: http://www.pattonhq.com/textfiles/federal.html.
12. Ibid.
13. Douglas MacArthur, remarks at a news conference, Washington, DC, July 28, 1932, transcript available at: http://www.wwnorton.com/college/history/america7/content/multimedia/ch29/research_01c.htm (accessed September 15, 2012).
14. US War Department, Basic Field Manual, vol. 7, Military Law, August 1, 1935, pt. 3, “Domestic Disturbances,” pp. 14, 31–67, cited and summarized in Laurie and Cole, The Role of Federal Military Forces, p. 364.