I finally finished reading Radley Balko’s book, Rise of the Warrior Cop: The Militarization of America’s Police Forces. RF did a brief preview of the book last year when it came out, but never got around to a full-blown treatment. I figured that since I was also reading it, I might as well step in and get it done. This is one of the more enlightening books that I’ve read in the last year or so, a must-read for anyone who wants to understand how we went from this . . .
To this:
Balko begins by posing the question, “Are cops constitutional?” He acknowledges that the question may seem a little nutty, but that exact question was asked by legal scholar and civil liberties activist, Roger Roots in a 2001 Seton Hall Constitutional Law Journal article. He suggests that in colonial days, much of responsibility for policing rested with private citizens rather than appointed officials and that the model for policing we have today would have been seen as constitutionally invalid by the Founders.
Law enforcement in the 18th century was more of a private matter and infractions were generally punished by the community. Public shaming and social stigma usually took care of most issues and the most incorrigible were either expelled from the community or executed. The concept of long-term incarceration was relatively unknown at the time.
Things of course had to change as the makeup of the new world changed. Villages grew into towns and then cities. As once homogenous collections of fellow citizens who were mostly alike became diverse melting pots, the traditional means of keeping people in line lost its power. Balko suggests that the Founders would probably have viewed even the nineteenth century police forces as a standing army and would have been absolutely terrified to witness a typical no-knock SWAT raid.
The Fourth Amendment to the Constitution, which had its early roots in English common law and what would later become known as the castle coctrine placed a person’s home in high regard. “A man’s home is his castle,” the saying goes and the intent is that a person should feel safe and secure in their own home.
Even during Colonial times, the odious Writ of Assistance that allowed English customs officials to enter a private residence for the purpose of searching for contraband were not as extreme as what we have today. A holder of a Writ of Assistance could not enter the home at night and was required to knock and announce and allow sufficient time for a citizen to answer before they could break down a door. The last forty years of laws and judicial review have gone a long way to undermining this feeling of sanctuary.
By the time politicians and courts were done, police could break down practically anyone’s door with impunity and escape responsibility so long as they could show that they tried their best to do things correctly. I don’t know about you, but I think that giving people an “A” for effort ends around the third or fourth grade. When you’re talking about people who kick in doors and wave lethal weapons around, you either get it right or you should get your ass handed to you. Mistakes simply cannot be tolerated.
In the early portion of the book, Balko traces the history of formal police forces going back as far as the Praetorian Guard of the Roman Empire. He paints an interesting picture, showing how things broke down back then when many of the same incentives used today were introduced to the mix. Policing as a concept took a hiatus after the fall of Rome, the notable exception being the cities in Italy that became hubs for trade.
By the middle ages, various concepts had grown up on the continent of Europe as well as in Great Britain. England gave the world the first modern police force in 1829 when Sir Robert Peel successfully convinced Parliament to create one. Peel had been advocating a force for more than a decade, but Parliament, concerned with civil rights, had resisted. It finally gave in only after ensuring that the police would be locally controlled and focused exclusively on fighting crime and protecting individual rights. They did not want the force to be an army enforcing the will of a centralized power (how things have changed in the Land of Hope and Glory).
Peel selected blue for his police uniforms so as to contrast with the red worn by the army. He also created a hierarchy based upon military ranks. His police force would become the model here in the U.S.
The book rapidly moves through the intervening decades, leading up to the 1960’s – the turning point in the drive towards Police militarization. One prominent stop was the 1930’s when General MacArthur was ordered to disperse the World War I veterans who had set up camp in Washington D.C. to protest the government’s refusal to honor its pre-war commitment and pay all veterans a war bonus.
MacArthur had no problem rolling tanks and running the vets off at the point of a bayonet. Later that year, MacArthur’s protege, George Patton would pen “Federal Troops in Domestic Disturbances” which was full of contempt for citizens and free expression. Patton recommended shooting captured rioters in the street, establishing a line and killing anyone who dared cross it. He also believed that a few dead are martyrs, while a lot of dead are an object lesson. From his perspective, if the military becomes involved, civilians should be treated like enemy combatants without the rights provided by the Geneva Convention.
Think about that perspective for a minute and don’t doubt that there are currently people in the military who hold similar views. If soldiers could be used to drive veterans out of Washington in the 1930’s, have no doubt that soldiers, ordered to put down insurrection today would likely respond similarly. But, back to the the 1960’s. It all began with a young cop named Daryl Gates.
Most people already know that the SWAT concept was born in Los Angeles in the 1960’s. It was the brainchild of Gates, who would ultimately go on to become the Chief of Police in Los Angeles. Gates didn’t start out as a gung-ho door kicker. Rather, his view was shaped by events of the turbulent 1960’s. The Watts riots, the University of Texas tower shootings, and several other events demonstrated to Gates that the police lacked the tools necessary to deal with emergent threats.
There was nothing wrong with Barney Fife patrolling the street and getting to know the neighbors, but in his view, you also needed a squad ready to deal with things when they got really unpleasant. If the SWAT concept had stopped there, things would have been fine. Gates was absolutely right — there are times when a highly trained and well-equipped force is needed to deal with seriously bad situations. The problem, however, was that SWAT grew to become so much more. Beginning with Nixon, drugs became Public Enemy Number One and Gates had just handed Nixon a perfect means to enforce his will.
In order to demonstrate his “get tough on crime” policy, Nixon began to sow fear. He got white America to fear the “black criminals amongst us.” The 1960’s was a volatile time in the civil rights struggle and middle class America wanted its government to do something. Barack Obama is often accused of using class warfare to accomplish his aims. Pit black Americans against white Americans (i.e., the Martin-Zimmerman affair), pit the “middle class” (whatever the hell that is exactly) against Wall Street, etc. But Obama is merely the most current in a long line of such opportunists. As Balko shows, class warfare has been a favorite tool of politicians dating back at least to Nixon, if not before. Nixon and later Reagan were adept at using the politics of fear to expand the police state.
Today, both of the major political parties in this country are largely pro-police militarization, but it wasn’t always that way. Republicans were more likely to approve the jackboots early on, but Democrats would eventually catch up. Nixon got the ball rolling with his war on drugs. Under his administration, the no-knock raid was authorized for police in the District of Columbia as well as for Federal Law enforcement officers nationwide. In 1974, no-knock opponents in Congress reacted to a string of botched raids and repealed the authorization. President Ford signed the bill into law in 1975. President Carter also took a much less contentious approach to aggressive enforcement, but Reagan picked up the baton and ran with it in ways Nixon could never have dreamed of.
The election of Bill Clinton in 1992 raised hopes that things would change on the drug war front with an admitted pot smoker (though not an inhaler) in the White House. But they didn’t, in fact things only got worse. Clinton put a Democratic stamp of approval on high profile militarized police tactics in a way no one had managed to do before. Emboldened, the BATF continued it’s pattern of abuse, following up on 1992’s Ruby Ridge fiasco (a Bush era event) with the sanctioned murders in Waco. While these actions were bad enough, the Clinton era would put a shocking face on the development of police militarization:
About the only positive thing you can say here is that the soldier cop wasn’t dressed in typical SWAT black. Good thing the Gonzalez family had no dogs.
George W. Bush condemned the raid on the Gonzales family, won the election, then moved onto a determined campaign to suppress states’ rights. Specifically, the passage of Medical Marijuana laws in California, which the Federal Government ignored in favor of the federal prohibitions which were still in place. Heavily armed SWAT teams would raid the homes of cancer and AIDS patients because these people, who had very little left to look forward to in life, were trying to alleviate their suffering but were violating high and mighty federal laws to do so.
One positive thing that Bush would later do would be to reduce the funding available for programs like the Byrne grants which provided federal dollars to local police in the hopes of reducing the influence the federal government had on local law enforcement. Clinton had held Byrne grant awards fairly steady at $500 million annually but Bush cut them to $170 million. Those cutbacks ended with the election of Obama. Joe Biden was a big proponent of the Byrne Grant program so the American Recovery and Reinvestment Act contained $2 billion for the Byrne Grant program – four times what Clinton had offered and by far the largest budget in the program’s history.
One of the potent ironies here is that the system has been deliberately designed to reward the wrong behavior. The Byrne Justice Assistance Grant program, which first appeared in the 1988 crime bill provides Federal dollars to local police departments based upon their needs. Unfortunately, need is determined by crime rates, so if a community is successful in lowering crime, it will lose grant money in favor of cities with higher crime rates that presumably need the money more. Under this incentive, cities are rewarded for increasing arrests. As a bonus, if the arrest involves narcotics, then the police department can receive additional funding under the asset forfeiture laws which reward participating police departments with a share of take. This money is used to purchase more toys, which are then used to make it “safer” for officers to conduct even more drug raids and continue the circle.
The justification for up militarizing police (body armor, full auto weapons, .50 machine guns, armored personnel carriers) has always been that things are getting dangerous out there and we need to protect our officers as they do their jobs. The unspoken question in all of this is whether the lack of this heavy equipment might actually encourage police to choose alternative means for getting the job done. No one will argue that body armor and/or an armored personnel carrier with a battering ram is a nice thing to have for you are dealing with a hostage rescue situation or a barricaded sniper. However, given the fact that for many SWAT teams, especially in smaller communities these sorts of issues will simply never come up, does East Nowhere, KS really need all this stuff? Is it possible that because we have provided police with the hammers, they are going to go out looking for nails?
Toys are one thing though. Training and the right SWAT personnel are something else. Balko brings us a very important point concerning the makeup and design of the SWAT team concept. SWAT teams are equipped with powerful weapons and more often than not find themselves in situations that require fast and accurate decision making in order to minimize casualties and collateral damage. For this reason, SWAT doesn’t need “cowboys”; they need highly trained and highly disciplined officers who have the experience to read a situation and to react appropriately. To achieve this level of professionalism, two things are required; a deep pool from which to select candidates and extensive ongoing training. When Daryl Gates formed the first SWAT team in Los Angeles, he had over nine thousand officers from which to pick and the team was designed to be full time, meaning that SWAT officers were on SWAT, period.
Most smaller jurisdictions feature part time SWAT teams that are composed of volunteers from the regular police force. These men and women spend most of the time in their cruisers, walking the beat, or pushing paperwork until the Bat-Phone goes off and they head to the Bat Cave station to form up for their next mission. The simple fact is that while they may receive specialized training for SWAT, it is not a full time job for them, so they are not going to be as effective as a full time SWAT unit would be. Furthermore, since they need to come pack to the station, get into their gear, and then head out as a unit, response time will be worse than if they were ready to deploy the minute the call came in. Balko also emphasizes the point that officer mentality is critical when selecting the team. The officers who most want to be on the SWAT team are usually the officers who should be excluded from membership. This is a huge issue for small police forces that decide they need a SWAT team. The total pool of candidates is not very deep, so the likelihood of getting someone on the team who poses a grave risk to the safety of the public is high. One of the sources cited in Balko’s book was at the time preparing to testify in a lawsuit against the SWAT team of a 28 person Police Department.
I’ve taken some classes up at the Sig Sauer Academy in New Hampshire, where some of its instructors are members of local SWAT teams. Out of curiosity, I took a look at what the SWAT team of the largest city in the area, Manchester, had to say about itself. From the web site:
“Every position assigned to the SWAT Unit is a collateral duty assignment and there are no full time SWAT positions….Tactical activations for the SWAT Team are primarily for high-risk warrant service operations. Most of the warrant service requests come from the Special Investigations Unit. Requests for high-risk warrant service have also been received from the FBI, DEA and ATF.”
Yep. Pretty much validates every one of Balko’s contentions; part time membership in the SWAT team composed of full-time patrol officers that is primarily used for high risk warrant service requests from the Special Investigations Unit (Narcotics) as well as the FBI, DEA, and ATF. (also mostly Narcotics and Guns).
The growth of SWAT teams has been truly staggering. By 2005, 80% of towns and cities with 25,000 to 50,000 residents had their own SWAT team, many of them made up of part timers. SWAT deployments in the early 1980s numbered about 3,000 annually nationwide. By 1995, that number had grown to just under 30,000 – a 937% rise. By 2005, 50,000-60,000 per year. Some teams were conducting as many as 700 raids a year – nearly two a day. Oddly, I don’t remember an increase in the type of crimes that SWAT was originally conceived of to fight. There was certainly no significant rise in hostage situations, barricaded suspects, or snipers. No, nearly all of the increase could be chalked up to drug enforcement. Unfortunately, since this is most of the work performed by SWAT these days, many of those officers are poorly trained or equipped for any other sort of situation.
One clear example was last year’s Boston Marathon Bombing and ensuing manhunt, which turned into a Tommy Tactical convention attended by every SWAT unit that could get their MRAP to make the trip. As if the mix of dozens of tactical teams was not confusing enough, many officers “self deployed” meaning that they suited up and went to help without any inter agency coordination. This impacted the command structure and led to cowboys with guns looking for someone to shoot. (Hmmm, now that I think about it, that’s how anti-gunners describe gun owners. How ironic.) Anyway, this massive SWAT deployment led to the sort of circle jerk that was the shootout with the brothers in the car that would end up with multiple officers being hit by other officers with at least one serious injury resulting and thousands of police rounds sprayed into residential neighborhoods. Here’s a little tip that some of the part-time SWAT boys should consider – if you make a circle around the suspect and everyone fires at him, those bullets are not going to stop just because they reach the center of the circle.
So, who watches the watchers? Well, proponents of the SWAT concept have always maintained that the court system serves as the gatekeepers. While that is nice in theory, in practice, it simply does not happen. Numerous SCOTUS decisions over the years have worn away at the protections of the Fourth Amendment. In 1995’s Wilson v. Arkansas, the court ruled that the Castle Doctrine was indeed incorporated into the Fourth Amendment, so no-knock raids were to be somewhat restricted yet declared that certain unspecified “exigent circumstances” could exist which would allow police on the scene to upgrade from “knock and announce” to “no knock” on their own authority. 1997’s Richards v. Wisconsin specifically waived the knock and announce requirement for any raid involving narcotics on the theory that the easy disposal of narcotics was an exigent circumstance. In 2003, the Supreme Court ruled that 15-20 seconds was enough of a wait time at the door before police could kick it down in United States v. Banks. 2006’s Hudson v. Michigan decided that the exclusionary rule for evidence did not apply even if the no-knock raid was illegal. So, if the cops illegally kick your door in but then find some evidence of a crime, you’re going to be someone’s bitch cellmate. (For those unsure, the exclusionary rule states that evidence gathered during an illegal search is not admissible).
In Hudson, Justice Scalia specifically stated that the Exclusionary Rule is not needed because there are other methods of holding police accountable. He cited police holding their own accountable, citizens filing formal protests, and citizen review boards. Obviously Justice Scalia lives in a different reality than the rest of us. As for the court system itself reviewing and questioning warrants before issuing them, that does not appear to be happening either. In 1999, the Denver Post conducted a review of warrants issued in the Denver area. They found that over a 12 month period, 97% of requested no knock warrants (158 out of 163) were issued and the Defense Attorneys they spoke with were surprised that the number was not even higher. Their thoughts were that the police must have really screwed things up on the five rejected warrants for them not to go through. Even more disturbing, in about 10% of the cases, a no-knock warrant was approved by the judge or magistrate even though Police had only requested a knock and announce warrant. When pressed on this point, Robert Patterson, Presiding Judge over Denver’s Criminal court system said that it was not the job of the judge to gather facts before approving the warrant. It was a formulaic process that all of the judges and magistrates followed. Furthermore, in response to the accidental no-knock approvals, he chalked it up to the fact that judges have hundreds of things to sign every day and occasionally the judge will look away for a minute and put their signature in the wrong space.
Methinks that if armed police kicked his door in one night, he might feel a bit differently about reading things before signing them. His callous disregard for the rights of the citizens he is supposed to serve is both telling and chilling.
In the end, this book carried some hard lessons for me. Politically, I’ve always leaned to the right. I can’t honestly say that I’ve ever voted for a Democrat. I may have cast votes for a Libertarian when the Republican candidate was too odious to support, but never a Democrat. From the tone of many of the commenters here, it’s safe to say that the prevailing viewpoint is that Democrats (Liberals) are Statists bent on taking away our rights while Republicans (Conservatives) are more likely to stand against them. While there is some truth to this belief, (exhibited most recently last year during the Gun Control debates in the Senate, which were only narrowly defeated by a coalition of Republican Senators acting against the Democrat majority), the fact is that both Republicans and Democrats share the blame for getting us to where we are now.
As of 2014, we have a standing army in our midst. One that is not afraid to use whatever tactics it thinks are necessary and has economic incentives to keep citizenry terrorized. We truly have something that would horrify the Founders. Furthermore, those Constitutional aspects of the Government, which we rely upon to serve as checks – The Tenth Amendment, the Separation of Powers between Executive, Legislation, and Judicial, the Bill of Rights in General – do not appear to be working either. Much of the problem we have has been formulated, funded, and foisted off on the states by a Federal Government that has overstepped it power, assisted by a Judiciary of supposedly Constitutional Scholars who have decided to re-write the Constitution from the bench.
What we have now with respect to Militarized Police does far more harm to our country than the “drug problem” it was created to help. Clearly a situation where the cure is worse than the disease. All is not lost however. If enough citizens become aware of the danger in their midst and start to hold local officials accountable, we can change things. Sure, you might not be able to directly influence what happens in Washington, but you can have some influence with what goes on in your town.
At the close of his book, Balko offers a number of suggestions that could start to reverse the erosion of the Fourth Amendment and move us back in the direction the Founders envisioned.
- End the Drug War. He does not suggest full legalization, but he does propose an end to the the heavy handed enforcement procedures and possibly decriminalize some drug offenses
- End Mission Creep. Regulatory agencies such as the Department of Education & the FDA do not need their own SWAT teams
- Increase Transparency. Encourage citizens to record police activities. Record all no-knock raids in a tamper-proof format that is subject to review by any interested citizen.
- Embrace true Community Policing
- Change Police Culture from an “us versus them” mentality back to a “serve and protect” one.
- Accountability: Make Police officers fully subject to the same laws the citizens are and hold them criminally liable when they commit egregious errors.
His most important suggestion is that more and more people need to start caring about these issues. Pick up a copy of this book. Read it. Share it with friends and family. This book was deeply disturbing to me (and I am a fairly cynical person to begin with). It’s time to get disturbed. Then its time to get involved.