Pushing back against a creeping
police state.
By Matt Harwood / TomDispatch
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 theWashington 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.
Legal Plunder
In July, the American Civil
Liberties Union and the ACLU of Arizona suedlaw 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.
