By Tom McKay December 30, 2015
In the wake of searing criticism alleging Chicago Mayor Rahm Emanuel turned a blind eye to — and in some cases allegedly covered up — a series of bloody police shootings under his tenure, the mayor has announced the Chicago Police Department will begin requiring all officers to be trained in the use of and equipped with Taser technology.
"The policy changes center around de-escalation tactics to reduce the intensity of a conflict or a potentially violent situation at the earliest possible moment, emphasizing that the foremost goal is to protect the safety of all involved," Emanuel said in a press conference on Tuesday, according to USA Today.
According to ABC 7, other changes include encouraging officers to call backup before heading into dangerous situations and extending the minimum amount of time an officer has to spend on desk duty following a shooting from 72 hours to 30 days.
The change of policy is motivated by more than a desire to protect Chicago citizens from unnecessary police violence. Chicago officers shot a man named Ronald Johnson in the back on Oct. 12, 2014. Days later, on Oct. 20, city Officer Jason Van Dyke shot a black teenager, Laquan McDonald, 16 times in the back — and Emanuel's office fought to keep the dashboard camera video, which would later prove crucial in bringing murder charges against the officer, under wraps for 13 months.
Earlier this month, the mayor publicly apologized and called McDonald's death "totally avoidable" around the same time his job approval ratings plummeted to 18 percent. Emanuel was up for re-election during the timing of the investigation into McDonald's death, leading some to argue he covered it up for political gain and call for hisresignation.
This weekend, Chicago officers shot and killed 19-year-old Quintonio Legrier and 55-year-old Bettie Jones, a mother of five and a bystander. Both victims were black.
Though Tasers and other less-lethal weapons offer an alternative to firearms when dealing with suspects, they have also been linked to hundreds of deaths between the years of 2001 and 2013 in the United States.
Experts also say the devices can be abused by departments with lax rules on when the devices can be deployed.
"I think the biggest problem with stun guns is because they are perceived as not-so-deadly force, the constraints on using them are less," Donna Lieberman, executive director of the American Civil Liberties Union's New York City chapter, told the Los Angeles Times. "The reluctance to use them is far less."
"These should be restricted to only those situations where an officer is protecting himself from violence," Justin Mazzola, Amnesty International deputy director of research, told Mic. But instead, they're "being used as a compliance tool" against suspects who are not necessarily dangerous but are disobeying officers' commands.
Simply introducing a new type of weaponry to the police force is also far less than many members of the Chicago community are asking for, especially considering Chicago police have been linked to lethal Taser abuse before.
"This community is under siege, and the police department has two sets of rules, one for blacks and one for whites," Greater St. John Bible Church pastor and local activist the Rev. Ira Acree told USA Today. "It's not just as simple as 'Let's put Tasers on police officers.' But because of the erosion of trust in the community, [Rahm]'s always in a reactionary mode."
How the Law Protects Police Who Kill
Despite the political pressure to prosecute cops in cases like Tamir Rice’s, the current system grants enormous leeway to officers who employ lethal force.
• DAVID A. GRAHAM
Although 2015 will go down as the year when the United States began grappling with the problem of police violence, it ended with a trio of defeats for reformers.
First, a jury in Baltimore was unable to come to a verdict in the trial of Officer William Porter, one of several officers charged in the death of Freddie Gray. Several days later, a grand jury in Waller County, Texas, decided that there had been no crime committed in the death of Sandra Bland in a jail cell there. Finally, and most gallingly to many observers, on Monday a grand jury in Cuyahoga County decided not to indict two officers in the shooting death of 12-year-old Tamir Rice.
Taken together, these cases—and particularly the Baltimore and Cleveland cases—demonstrate yet again the difficulty involved in holding police accountable when civilians are killed. Even as there is greater awareness about the toll that police killings take, police are seldom prosecuted, and when they are, they are seldom convicted. That was the case before Michael Brown’s death in August 2014, and it remains true today. The reasons for that are various. Prosecutors are reluctant to bring charges against police, because they rely on officers to gather information and serve as witnesses in other cases. Juries tend to be deferential to officers.
There are also legal protections: In Graham v. Connor, the Supreme Court ruled that events “must be judged from the perspective of a reasonable officer, rather than with the 20/20 vision of hindsight.” Finally, even when the facts seem clear-cut, the law grants police wide latitude. Although many people who watched dash-cam footage of Bland’s arrest were horrified by Trooper Brian Encinia’s conduct, police experts who reviewed the footage, including some who criticized Encinia’s judgment in no uncertain terms, generally felt he had acted within his legal authority. Many departments employ “use-of-force matrices,” which detail what steps an officer may take during an incident, in some cases giving them the right to use more aggressive action than might be necessary or seem justified to an outside observer.
This was particularly apparent in the Rice case. The boy was shot by an Officer Timothy Loehmann just seconds after he arrived on the scene, sent by a dispatcher who told him there was a report of a man pulling out a gun and pointing it at people. Surveillance footage of the death galvanized and appalled the nation. The 12-year-old being gunned down by the officer so abruptly seemed to exemplify overuse of deadly force, while the ensuing events—Rice’s sister was prevented from reaching him, and officers did little to save his life—clinched the case as a signal injustice. As more information emerged about Loehmann, including his abbreviated, troubled career with another Ohio police department, there seemed to be widespread recognition that he shouldn’t have been wearing a badge and that he had acted inappropriately when he shot Rice.
The problem is that although Loehmann’s actions may have seemed obviously inappropriate to a layman, that doesn’t mean that they actually violated the law. Three independent reports, commissioned by Cuyahoga County Prosecutor Timothy McGinty all found that the Loehmann and his partner Frank Garmback had acted within proper protocols and rules for officers. (One reportused particularly unfortunate and offensive language, likening Rice’s loss of life to the potential end of Loehmann’s career.) The grand jury’s decision not to indict is simply the latest evidence that no statutory crime may have been committed.
In announcing the grand jury’s decision, McGinty made that argument: What happened was terrible, but I can’t prove it was a crime. “The state must be able to show that the officers acted outside the constitutional boundaries set forth by the Supreme Court of these United States,” he said, and while Rice’s death was a “tragedy,” McGinty said, “it was not, by the law that binds us, a crime.”
That isn’t to say that McGinty couldn’t have procured an indictment—if not necessarily a conviction—if he’d taken a more aggressive strategy. The DA has come in for harsh criticism throughout the case. He took an extremely long time to bring the case before a grand jury—so long, in fact, that Rice’s family and activists dredged up an obscure Ohio law to get a municipal judge to issue at warrant for the officers, circumventing the McGinty’s process. (They received an unsatisfying split decision: A judge ruled that there was probable cause to arrest the officers, but that the law did not actually authorize him to issue warrants.)
Activists and other observers accused McGinty of issuing the three independent reports as a way to justify a future failure to indict—a suspicion that Monday’s announcement will only reinforce. McGinty also failed to convict Officer Michael Brelo in the 2012 deaths of Timothy Russell and Malissa Williams, two residents gunned down after a mistaken chase. In short, McGinty seems at best soft on police and at worst ineffective as a prosecutor. “It has been clear for months now that Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment,” Rice’s family said in a statement.
But one tough lesson of the William Porter case is that however lethargic McGinty’s approach may have seemed, a more aggressive approach is no guarantee of different results. Whether prosecutors move glacially and timidly or quickly and boldly, it’s hard to hold police accountable because of the way the law is written and the system works. Baltimore City State’s Attorney Marilyn Mosby did practically everything differently: She moved with incredible speed to bring charges against the officers involved in the death of Freddie Gray, and she brought an aggressive slate of charges—including a depraved-heart murder charge against one officer. She quickly obtained indictments from a grand jury and prepared to take the cases to trial.
But once the first trial began, the difficulties facing prosecutors became clear. A central element of the state’s case was an accusation that Porter had failed to restrain Gray with a seatbelt. Yet Porter’s team mounted a convincing argument that although Porter may have violated written policies, what he did was in line with general practice for Baltimore cops. The law was murky enough that it was tough to obtain a conviction, and some analysts felt that prosecutors were lucky to get a hung jury rather than simply an acquittal.
Further evidence for the gap between legal standards for a crime and civilian judgment about proportionality comes from the fact that even though officers are seldom prosecuted for violence, many cities—including Baltimore and Cleveland—have made large payouts to victims and their families, either as a result of civil verdicts or as settlements to end or forestall civil suits. McGinty himself suggested that the civil system might provide some recourse for Rice’s family. “We, too, want justice for Tamir,” he said. The grand jury’s decision “doesn't mean the legal system is done,” he said, adding that civil courts might provide the accountability to the family “that they deserve.”
If the failure to indict in Cleveland is a defeat for police-reform activists and Black Lives Matter, it is also a defeat for some of the movement’s critics who have espoused “responsibility politics” for African Americans who criticize the justice system. In October, I noted Harvard Law Professor Randall Kennedy’s call for activists to set aside victims of police violence like Michael Brown, whose reputation could be more easily impugned because of his alleged involvement in a robbery before he was shot. Proponents of respectability politics “preferred to rally attention around Tamir Rice, the black twelve-year-old who was playing with a toy gun in a park when he was precipitously shot dead by a policeman in Cleveland, rather than a figure like Michael Brown,”Kennedy wrote earlier this year.
The fact that no one was indicted in Rice’s death shows the shortcomings of that approach. While there are many death at the hands of police, there are few perfect victims, victims whose deaths are so clear-cut, so appalling, so unjustified, that a conviction is a slam dunk. Many of the people who come into contact with the long arm of the law may have committed crimes; others may simply have acted unwisely, like Rice brandishing his toy gun with the orange tip removed. None of this justifies extrajudicial execution by the state, which is what Rice—along with Samuel Dubose and Walter Scott and many others—received.
Rice’s family and other activists are calling on the Department of Justice to step in and take up the case. But as the DOJ’s investigation into Michael Brown’s death showed—and as the department hinted Monday—federal civil-rights cases are extremely difficult, and tend to require an even higher standard of proof than a simple criminal prosecution, making it unlikely that Washington will deliver justice in this case.
Although the anger of police reformers and Black Lives Matters activists ran high in 2015, there was also, at times, a naïvely optimistic underpinning to their protests. They were built around the belief that if only there were reliable statistics on deaths in the hands of police, if only there was more awareness about deaths, if only more political pressure could be brought to bear on prosecutors, then the criminal-justice system could deal with police-inflicted deaths. That hope was encouraged by the Walter Scott case, in which Officer Michael Slager was fired and charged with murder almost immediately after a video of Scott’s shooting was made public.
The results this month in Baltimore and Cleveland give reformers a roadmap to follow in 2016. It’s not enough to just enforce the laws as they exist now—though that, too, is essential. Reducing police abuse will also require political efforts to change the laws and protocols that determine how police can act and what actions are justified. Until those changes are made, stomach-churning incidents like Rice’s death will continue to go without indictments or convictions.
How can we expect real police reform when prosecutors are willing to send such a clear message in the Tamir Rice case that, however egregious the error, no one will ever be punished?
By Rachel Lu
Michael Brown was (plausibly) lunging for an officer’s weapon when Officer Darren Wilson shot and killed him. Eric Garner didn’t pose much of a threat, but he wasresisting arrest, and the tactics used to subdue him wouldn’t have been life-threatening but for a particular medical condition. Twelve-year-old Tamir Rice was just playing with a toy pistol in a Cleveland public park when the police gunned him down in broad daylight.
No charges will be brought against the officers involved.
This is a disturbing case. It cannot reasonably be dismissed as a trumped-up grievance-fest, or even just a tragedy of errors. Rice died as a consequence of a serious police error, in a county with a history of overaggressive, undisciplined policing.
Human Resources Screwed Up
Ironically, Officer Timothy Loehmann’s salvation may have been the sheer volume of screw-ups that contributed to Rice’s death. In explaining why Loehmann was exonerated, Prosecutor Tim McGinty described the situation as “a perfect storm of human error.” Quite a number of people do seem to have demonstrated shocking incompetence here. Let’s do a run-down.
Loehmann’s emotional issues made him unreliable with a firearm.
We can start with the person who hired Loehmann to work for the Cleveland police. Loehmann had left his previous job with a suburban police department in what appeared to be a “quit or be fired” situation. He had mental health and maturity issues, and his deputy chief expressed the opinion that neither time nor training could make him a capable cop. His biggest problem? His emotional issues made him unreliable with a firearm. He became “distracted” and “weepy” even during a training session.
After losing his first job, he applied unsuccessfully to multiple other departments and finally got hired in Cuyahoga County. Within a few months on the job, he’d killed a preteen armed with a toy.
So Did The Dispatcher
Next we could look to the dispatcher, Beth Mandl, who informed Loehmann and his partner Frank Garmback that an armed man in a public park was frightening local residents. The person who called in this tip had told the dispatcher the suspect looked like a juvenile, and that the gun was likely a fake.
Doesn’t that sound like the sort of information the responding officers should have? Apparently Mandl didn’t think so.
Mandl’s background should also have raised concerns, given that she had been fired from her last dispatcher job in 2008. Last summer she quit her job with the Cleveland police, though only after failing to come to work for three months, without explanation.
So Did the Partner
It’s heartbreaking to think this tragedy might have been averted if the officers had been fully informed. Still, given that they thought they were dealing with an armed adult, wouldn’t you expect the officers in charge to exercise some caution in approaching the situation?
Less than two seconds after the officers’ arrival, the twelve-year-old was on the ground.
Footage from the scene shows that Rice was alone in the park. If bystanders were indeed alarmed by his actions, they had evidently had the good sense to get some distance. The police weren’t so prudent. Garmback drove directly up to Rice and, seeing hands somewhere around his mid-section, Loehmann emerged from the squad car firing. Less than two seconds after the officers’ arrival, the twelve-year-old was on the ground.
Loehmann now claims he warned Rice three times to show his hands. No witnesses heard this. More importantly, watch the video for yourself. (Start at the one-minute mark, and it’ll take you ten seconds, literally!) Decide whether that claim is plausible. Could Loehmann possibly have had time to issue such a command, let alone three?
Did I Mention Cleveland Has a History of Police Aggression?
When reading about high-profile cases like this, you may find yourself wondering: are we making too much of the occasional mistake? Was this mostly a freak incident?
The evidence suggests that the culture of a justice system makes a huge difference in officers’ behavior.
Usually the answer is “no.” Of course we should all appreciate that policing is dangerous, and that we can’t expect people to have perfect judgment in their split-second decisions. But the evidence suggests that the culture of a justice system makes a huge difference in officers’ behavior. Incidents like this arise far more frequently in regions with a history of police brutality and prosecutorial abuse. Cleveland definitely qualifies.
As it happens, Rice’s shooting in November 2014 preceded by mere days the release of a Department of Justice report on the Cleveland police. The report details a litany of problems, among them unexplained (and unconstitutional) stops and searches, and punitive physical aggression against suspects who were already handcuffed or otherwise restrained.
The DOJ observed that the Cleveland police seemed to have adopted a militaristic “us against them” mentality with respect to the local population, even noting little details, such as a public sign at a local station designating it the “forward operating base.” They noted, as well, that officers seemed to be poorly trained in the use of their weapons, often firing them “in a manner and in circumstances that place innocent bystanders in danger,” and using “dangerous and poor tactics to try to gain control of suspects.”
Justice found that Cleveland Internal Affairs does almost nothing to respond to use-of-force complaints.
In what is possibly the most shocking detail in the report, Justice found that Cleveland Internal Affairs does almost nothing to respond to use-of-force complaints. The report states, “A member of the Office of Professional Standards, which, among other duties, has been charged with investigating use of deadly force incidents, stated that the office has not reviewed a deadly force incident since 2012.”
When controversial cases arise, prosecutors rightly point out that police behavior can be inappropriate without being criminal. It isn’t their job (they might suggest) to ensure that the police are doing their jobs well.
Evidence suggests, however, that prosecutorial laxity and over-aggressive police forces tend to go together. We already know that Cleveland’s Internal Affairs office isn’t bothering much about police aggression. If prosecutors are likewise looking for ways to go easy on the police, “freak tragedies” like the death of Tamir Rice are foreseeable, not freakish.
One more detail of the DOJ’s report may be of interest. It said (to paraphrase), “Hey, didn’t we issue a report like this ten years ago? Have you done anything to address all these problems that we documented back in 2004? It doesn’t seem like it.” Interesting.
Who Should Go Down For This?
What actually happened on that fateful day in November? As usual, there are a mess of conflicting claims on the table about the incident itself. Multiple reports commissioned by the prosecutor’s office assert the shooting was reasonable. The ones commissioned by Rice’s family attorneys say it wasn’t. McGinty claims Rice was drawing his toy weapon when Loehmann fired. Another report says Rice’s hands were in his pockets and that he couldn’t have had time to draw.
This seems to imply the police can legally shoot anyone at all, provided they can piece together a remotely plausible case that they felt threatened.
Three cheers for the experts, eh? But we shouldn’t let officials hide in these ambiguities. A boy is dead, owing to massive incompetence on the part of law enforcement. And if, as McGinty has suggested, this behavior is within the bounds of the law, that would seem to imply that the police can legally shoot anyone at all, provided they can piece together a remotely plausible case that they felt threatened.
Apparently this holds even when it was unnecessary for the officers to put themselves at such close range in the first place, or if the suspect was just a seventh-grader with hands moving somewhere around his midsection.
Concerned citizens are right to be upset that this incident has resulted in no charges of any kind, against anyone. No reasonable person suggests this is first-degree murder, but is it right to dismiss even much lesser charges, such as involuntary manslaughter, or dereliction of duty? McGinty isn’t even willing to bring an indictment for one of those charges? How can we expect real police reform when prosecutors are willing to send such a clear message that, however egregious the error, no one will ever be punished?
Loehmann isn’t the only guilty party, however. There’s lots of blame to go around, which is why we should be hearing phrases like “take responsibility,” not “perfect storm of human error.” Cleveland’s justice system has real problems, and now the whole world knows it. Let’s not be satisfied until we see real movement towards reform.
Rachel Lu is a senior contributor at The Federalist. As a Robert Novak Fellow, she is currently researching criminal justice reform. Follow her on Twitter.
People Are Waking Up to the Darkness in American Policing, and the Police Don’t Like It One Bit
By Matthew Harwood
This piece originally appeared at TomDispatch.com.
If you’ve been listening to various police agencies and their supporters, then you know what the future holds: anarchy is coming — and it’s all the fault of activists.
In May, a Wall Street Journal op-ed warned of a “new nationwide crime wave” thanks to “intense agitation against American police departments” over the previous year. New Jersey Governor Chris Christie went further. Talking recently with the host of CBS’s Face the Nation, the Republican presidential hopeful asserted that the Black Lives Matter movement wasn’t about reform but something far more sinister. “They’ve been chanting in the streets for the murder of police officers,” he insisted. Even the nation’s top cop, FBI Director James Comey, weighed in at the University of Chicago Law School, speaking of “a chill wind that has blown through American law enforcement over the last year.”
According to these figures and others like them, lawlessness has been sweeping the nation as the so-called Ferguson effect spreads. Criminals have been emboldened as police officers are forced to think twice about doing their jobs for fear of the infamy of starring in the next viral video. The police have supposedly become the targets of assassins intoxicated by “anti-cop rhetoric,” just as departments are being stripped of the kind of high-powered equipment they need to protect officers and communities. Even their funding streams have, it’s claimed, come under attack as anti-cop bias has infected Washington, D.C. Senator Ted Cruz caught the spirit of that critique byconvening a Senate subcommittee hearing to which he gave the title, “The War on Police: How the Federal Government Undermines State and Local Law Enforcement.” According to him, the federal government, including the president and attorney general, has been vilifying the police, who are now being treated as if they, not the criminals, were the enemy.
Beyond the storm of commentary and criticism, however, quite a different reality presents itself. In the simplest terms, there is no war on the police. Violent attacks against police officers remain at historic lows, even though approximately 1,000 people have been killed by the police this year nationwide. In just the past few weeks, videos have been released of problematic fatal police shootings in San Francisco and Chicago.
While it’s too soon to tell whether there has been an uptick in violent crime in the post-Ferguson period, no evidence connects any possible increase to the phenomenon of police violence being exposed to the nation. What is taking place and what the police and their supporters are largely reacting to is a modest push for sensible law enforcement reforms from groups as diverse asCampaign Zero, Koch Industries, the Cato Institute, The Leadership Conference, and the ACLU (my employer). Unfortunately, as the rhetoric ratchets up, many police agencies and organizations are increasingly resistant to any reforms, forgetting whom they serve and ignoring constitutional limits on what they can do.
Indeed, a closer look at law enforcement arguments against commonsense reforms like independently investigating police violence, demilitarizing police forces, or ending “for-profit policing” reveals a striking disregard for concerns of just about any sort when it comes to brutality and abuse. What this “debate” has revealed, in fact, is a mainstream policing mindset ready to manufacture fear without evidence and promote the belief that American civil rights and liberties are actually an impediment to public safety. In the end, such law enforcement arguments subvert the very idea that the police are there to serve the community and should be under civilian control.
And that, when you come right down to it, is the logic of the police state.
Due Process Plus
It’s no mystery why so few police officers are investigated and prosecuted for using excessive force and violating someone’s rights. “Local prosecutors rely on local police departments to gather the evidence and testimony they need to successfully prosecute criminals,” according to Campaign Zero . “This makes it hard for them to investigate and prosecute the same police officers in cases of police violence.”
Since 2005, according to an analysis by the Washington Post and Bowling Green State University, only 54 officers have been prosecuted nationwide, despite the thousands of fatal shootings by police. As Philip M. Stinson, a criminologist at Bowling Green, puts it, “To charge an officer in a fatal shooting, it takes something so egregious, so over the top that it cannot be explained in any rational way. It also has to be a case that prosecutors are willing to hang their reputation on.”
For many in law enforcement, however, none of this should concern any of us. When New York Governor Andrew Cuomo signed an executive order appointing a special prosecutor to investigate police killings, for instance, Patrick Lynch, president of the Patrolmen’s Benevolent Association, insisted: “Given the many levels of oversight that already exist, both internally in the NYPD [New York Police Department] and externally in many forms, the appointment of a special prosecutor is unnecessary.” Even before Cuomo’s decision, the chairman of New York’s District Attorneys Association calledplans to appoint a special prosecutor for police killings “deeply insulting.”
Such pushback against the very idea of independently investigating police actions has, post-Ferguson, become everyday fare, and some law enforcement leaders have staked out a position significantly beyond that. The police, they clearly believe, should get special treatment.
“By virtue of our dangerous vocation, we should expect to receive the benefit of the doubt in controversial incidents,” wrote Ed Mullins, the president of New York City’s Sergeants Benevolent Association, in the organization’s magazine,Frontline. As if to drive home the point, its cover depicts Baltimore State Attorney Marilyn Mosby under the ominous headline “The Wolf That Lurks.” In May, Mosby had announced indictments of six officers in the case of Freddie Gray, who died in Baltimore police custody the previous month. The message being sent to a prosecutor willing to indict cops was hardly subtle: you’re a traitor.
Mullins put forward a legal standard for officers accused of wrongdoing that he would never support for the average citizen — and in a situation in which cops already get what former federal prosecutor Laurie Levenson calls “a super presumption of innocence.” In addition, police unions in many states have aggressively pushed for their own bills of rights, which make it nearly impossible for police officers to be fired, much less charged with crimes when they violate an individual’s civil rights and liberties.
In 14 states, versions of a Law Enforcement Officers’ Bill of Rights (LEOBR) have already been passed, while in 11 others they are under consideration. These provide an “extra layer of due process” in cases of alleged police misconduct, according to Samuel Walker, an expert on police accountability. In many of the states without a LEOBR, the Marshall Project has discovered, police unions have directly negotiated the same rights and privileges with state governments.
LEOBRs are, in fact, amazingly un-American documents in the protectionsthey afford officers accused of misconduct during internal investigations, rights that those officers are never required to extend to their suspects. Though the specific language of these laws varies from state to state, notesMike Riggs in Reason, they are remarkably similar in their special considerations for the police.
“Unlike a member of the public, the officer gets a ‘cooling off’ period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated ‘at a reasonable hour,’ with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only ‘for reasonable periods,’ which ‘shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.’ Unlike a member of the public, the officer under investigation cannot be ‘threatened with disciplinary action’ at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.”
The Marshall Project refers to these laws as the “Blue Shield” and “the original Bill of Rights with an upgrade.’’ Police associations, naturally, don’t agree. “All this does is provide a very basic level of constitutional protections for our officers, so that they can make statements that will stand up later in court,” says Vince Canales, the president of Maryland’s Fraternal Order of Police.
Put another way, there are two kinds of due process in America — one for cops and another for the rest of us. This is the reason why the Black Lives Matter movement and other civil rights and civil liberties organizations regularly call on states to create a special prosecutor’s office to launch independent investigations when police seriously injure or kill someone.
The Demilitarized Blues
Since Americans first took in those images from Ferguson of police units outfitted like soldiers, riding in military vehicles, and pointing assault rifles at protesters, the militarization of the police and the way the Pentagon has been supplying them with equipment directly off this country’s distant battlefields have been top concerns for police reformers. In May, the Obama administration suggested modest changes to the Pentagon’s 1033 program, which, since 1990, has been redistributing weaponry and equipment to police departments nationwide — urban, suburban, and rural — in the name of fighting the war on drugs and protecting Americans from terrorism.
Even the idea that the police shouldn’t sport the look of an occupying army in local communities has, however, been met with fierce resistance. Read, for example, the online petition started by the National Sheriffs’ Association and you could be excused for thinking that the Obama administration was aggressively moving to stop the flow of military-grade equipment to local and state police agencies. (It isn’t.) The message that tops the petition is as simple as it is misleading: “Don’t strip law enforcement of the gear they need to keep us safe.”
The Obama administration has done no such thing. In May, the presidentannounced that he was prohibiting certain military-grade equipment from being transferred to state and local law enforcement. “Some equipment made for the battlefield is not appropriate for local police departments,” he said. The list included tracked armored vehicles (essentially tanks), bayonets, grenade launchers, camouflage uniforms, and guns and ammo of .50 caliber or higher. In reality, what use could a local police department have for bayonets, grenade launchers, or the kinds of bullets that resemble small missiles, pierce armor, and can blow people’s limbs off?
Yet the sheriffs’ association has no problem complaining that “the White House announced the government would no longer provide equipment like helicopters and MRAPs [mine-resistant ambush-protected vehicles] to local law enforcement.” And it’s not even true. Police departments can still obtain both helicopters and MRAPs if they establish community policing practices, institute training protocols, and get community approval before the equipment transfer occurs.
“Helicopters rescue runaways and natural disaster victims,” the sheriff’s association adds gravely, “and MRAPs are used to respond to shooters who barricade themselves in neighborhoods and are one of the few vehicles able to navigate hurricane, snowstorm, and tornado-strewn areas to save survivors.”
As with our wars abroad, think mission creep at home. A program started to wage the war on drugs, and strengthened after 9/11, is now being justified on the grounds that certain equipment is useful during disasters or emergencies. In reality, the police have clearly become hooked on a militarized look. Many departments are ever more attached to their weapons of war and evidently don’t mind the appearance of being an occupying force in their communities, which leaves groups like the sheriffs’ association fighting fiercely for a militarized future.
In July, the American Civil Liberties Union and the ACLU of Arizona sued law enforcement in Pinal County, Arizona, on behalf of Rhonda Cox. Two years before, her son had stolen some truck accessories and, without her knowledge, fitted them on her truck. When the county sheriff’s department arrested him, it also seized the truck.
Arriving on the scene of her son’s arrest, Cox asked a deputy about getting her truck back. No way, he told her. After she protested, explaining that she had nothing to do with her son’s alleged crimes, he responded “too bad.” Under Arizona law, the truck could indeed be taken into custody and kept or sold off by the sheriff’s department even though she was never charged with a crime. It was guilty even if she wasn’t.
Welcome to America’s civil asset forfeiture laws, another product of law enforcement’s failed war on drugs, updated for the twenty-first century. Originally designed to deprive suspected real-life Scarfaces of the spoils of their illicit trade — houses, cars, boats — it now regularly deprives people unconnected to the war on drugs of their property without due process of law and in violation of the Fifth and Fourteenth Amendments. Not surprisingly, corruption follows.
Federal and state law enforcement can now often keep property seized or sell it and retain a portion of the revenue generated. Some of this, in turn, can be repurposed and distributed as bonuses in police and other law enforcement departments. The only way the dispossessed stand a chance of getting such “forfeited” property back is if they are willing to take on the government in a process where the deck is stacked against them.
In such cases, for instance, property owners have no right to an attorney to defend them, which means that they must either pony up additional cash for a lawyer or contest the seizure themselves in court. “It is an upside-down world where,” says the libertarian Institute for Justice, “the government holds all the cards and has the financial incentive to play them to the hilt.”
In this century, civil asset forfeiture has mutated into what’s now called “for-profit policing” in which police departments and state and federal law enforcement agencies indiscriminately seize the property of citizens who aren’t drug kingpins. Sometimes, for instance, distinctly ordinary citizenssuspected of driving drunk or soliciting prostitutes get their cars confiscated. Sometimes they simply get cash taken from them on suspicion of low-level drug dealing.
Like most criminal justice issues, race matters in civil asset forfeiture. This summer, the ACLU of Pennsylvania issued a report, Guilty Property, documenting how the Philadelphia Police Department and district attorney’s office abused state civil asset forfeiture by taking at least $1 million from innocent people within the city limits. Approximately 70% of the time, those people were black, even though the city’s population is almost evenly dividedbetween whites and African-Americans.
Currently, only one state, New Mexico, has done away with civil asset forfeiture entirely, while also severely restricting state and local law enforcement from profiting off similar national laws when they work with the feds. (The police in Albuquerque are, however, actively defying the new law, demonstrating yet again the way in which police departments believe the rules don’t apply to them.) That no other state has done so is hardly surprising. Police departments have become so reliant on civil asset forfeiture to pad their budgets and acquire “little goodies” that reforming, much less repealing, such laws are a tough sell.
As with militarization, when police defend such policies, you sense their urgent desire to maintain what many of them now clearly think of as police rights. In August, for instance, Pinal County Sheriff Paul Babeu sent afundraising email to his supporters using the imagined peril of the ACLU lawsuit as clickbait. In justifying civil forfeiture, he failed to mention that a huge portion of the money goes to enrich his own department, but praised the program in this fashion:
“[O]ver the past seven years, the Pinal County Sheriff’s Office has donated $1.2 million of seized criminal money to support youth programs like the Boys & Girls Clubs, Boy Scouts, YMCA, high school graduation night lock-in events, youth sports as well as veterans groups, local food banks, victims assistance programs, and Home of Home in Casa Grande.”
Under this logic, police officers can steal from people who haven’t even been charged with a crime as long as they share the wealth with community organizations — though, in fact, neither in Pinal County or elsewhere is that where most of the confiscated loot appears to go. Think of this as the development of a culture of thievery masquerading as Robin Hood in blue.
Contempt for Civilian Control
Post-Ferguson developments in policing are essentially a struggle over whether the police deserve special treatment and exceptions from the rules the rest of us must follow. For too long, they have avoided accountability for brutal misconduct, while in this century arming themselves for war on America’s streets and misusing laws to profit off the public trust, largely in secret. The events of the past two years have offered graphic evidence that police culture is dysfunctional and in need of a democratic reformation.
There are, of course, still examples of law enforcement leaders who see the police as part of American society, not exempt from it. But even then, the reformers face stiff resistance from the law enforcement communities they lead. In Minneapolis, for instance, Police Chief Janeé Harteau attempted to have state investigators look into incidents when her officers seriously hurt or killed someone in the line of duty. Police union opposition killed her plan. In Philadelphia, Police Commissioner Charles Ramsey ordered his department to publicly release the names of officers involved in shootings within 72 hours of any incident. The city’s police union promptly challenged his policy, while the Pennsylvania House of Representatives passed a bill in November to stop the release of the names of officers who fire their weapon or use force when on the job unless criminal charges are filed. Not surprisingly, three powerful police unions in the state supported the legislation.
In the present atmosphere, many in the law enforcement community see the Harteaus and Ramseys of their profession as figures who don’t speak for them, and groups or individuals wanting even the most modest of police reforms as so many police haters. As former New York Police Department Commissioner Howard Safir told Fox News in May, “Similar to athletes on the playing field, sometimes it’s difficult to tune out the boos from the no-talents sipping their drinks, sitting comfortably in their seats. It’s demoralizing to read about the misguided anti-cop gibberish spewing from those who take their freedoms for granted.”
The disdain in such imagery, increasingly common in the world of policing, is striking. It smacks of a police-state, bunker mentality that sees democratic values and just about any limits on the power of law enforcement as threats. In other words, the Safirs want the public — particularly in communities of color and poor neighborhoods — to shut up and do as it’s told when a police officer says so. If the cops give the orders, compliance — so this line of thinking goes — isn’t optional, no matter how egregious the misconduct or how sensible the reforms. Obey or else.
The post-Ferguson public clamor demanding better policing continues to get louder, and yet too many police departments have this to say in response: Welcome to Cop Land. We make the rules around here.
Matthew Harwood is senior writer/editor of the ACLU. His work has appeared atAl Jazeera America, the American Conservative, the Guardian, Guernica,Salon, War is Boring, and the Washington Monthly. He is a TomDispatchregular.
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