The Logic of the Police State
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 by convening 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 as Campaign 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 called plans 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 protections they 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, notes Mike 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 president announced 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 citizens suspected 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 divided between 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 a fundraising 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 at Al Jazeera America, The American Conservative, the Guardian, Guernica, Salon, War is Boring, and Washington Monthly. He is a TomDispatch regular.
Copyright 2015 Matthew Harwood