Tomgram: Matthew Harwood, Welcome to Cop Land
By Matthew Harwood
Posted on December 20, 2015, Printed on December 20, 2015
http://www.tomdispatch.com/blog/176084/
Sometime in late November, after the Paris terror attacks but before the one
in San Bernardino, I was walking to New Yorks Grand Central Station to
catch the subway home. In front of one of its main entrances, the police had
set up shop, blocking off part of an avenue. The crew I stumbled upon may,
in fact, have been part of the new counterterrorism unit that the New York
Police Department had just rolled out. Whatever the case, the cops were
up-armored in a purely military fashion (even if their togs were fashionably
black and blue) and carrying weaponry the likes of which I had never seen
before on the streets of my hometown. Amid flashing lights, they stood there
with dogs on leashes looking not like the police but figures from some
dystopian, futuristic sci-fi flick. Nothing in particular seemed to be
happening so, after a few minutes, I entered the vast terminal, passing
scattered pistol-packing soldiers in camo, evidently guarding the
just-before-rush-hour crowds. It was certainly a spectacle, but also just
part of the new American normal.
So consider what Im about to mention less than newsworthy amid all the
reports on the militarization of the countrys police and their brutal
behavior. And yet its the sort of tiny news story that once upon a time
would have been striking. Now, few will even notice. Policing headlines
these days, after all, gravitate to graphic videos of cold-blooded police
killings in places like Los Angeles, San Francisco, and Chicago. (There were
70 fatal shootings by the Chicago Police Department alone between 2010 and
2014. As Margaret Talbot pointed out in the New Yorker, only Phoenix,
Philadelphia, and Dallas had a higher number per capita.)
When it comes to the arming of the police in a country in which rural
sheriffs proudly sport battlefield-grade mine-resistant ambush protected
vehicles, or MRAPs, and new militarized urban police units like that one in
New York City are being outfitted with Colt M4 semiautomatic assault rifles
and machine guns, a report that 20 campus cops at Bostons Northeastern
University are going to be armed with semiautomatic rifles qualifies as
distinctly ho-hum news. Or thought of another way, it catches the everyday
reality of a country whose police have been up-arming with a kind of passion
since 9/11. I can, of course, remember the unarmed campus cops of my own
college days and, believe me, weve traveled a long road from policing
panty raids to facing on-campus mass shootings in a country now so
over-weaponized that it seems as if both the police and the citizenry are in
an undeclared arms race.
In these years, the militarization of the police has taken place amid a
striking upsurge of protest over police brutality, abuses, and in particular
the endless killing of young black men, as well as a parallel growth in both
the powers of and the protections afforded to police officers. As
TomDispatch regular Matthew Harwood, who has been covering the
militarization of the police for this site, reports today, all of this could
easily add up to the building blocks for a developing police-state frame of
mind. If youve been watching the national news dominated by panic and
hysteria over domestic terrorism, including the shutting down of a major
urban school system over an outlandish hoax threat of a terror attack, or
the recent Republican debate over national security, which turned out to
mean only ISIS and immigration, can there be any question that the way is
being paved for institutionalizing a new kind of policing in this country in
the name of American security and fear? Tom
The Logic of the Police State
People Are Waking Up to the Darkness in American Policing, and the Police
Dont Like It One Bit
By Matthew Harwood
If youve been listening to various police agencies and their supporters,
then you know what the future holds: anarchy is coming -- and its 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 CBSs Face the Nation, the Republican presidential
hopeful asserted that the Black Lives Matter movement wasnt about reform
but something far more sinister. Theyve been chanting in the streets for
the murder of police officers, he insisted. Even the nations 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, its 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 its 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
Its no mystery why so few police officers are investigated and prosecuted
for using excessive force and violating someones 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 Patrolmens 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 Cuomos decision, the
chairman of New Yorks 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 Citys Sergeants Benevolent Association, in the
organizations 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: youre 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 individuals 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,
dont 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 prosecutors 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 countrys
distant battlefields have been top concerns for police reformers. In May,
the Obama administration suggested modest changes to the Pentagons 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 shouldnt 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 isnt.) The message that
tops the petition is as simple as it is misleading: Dont 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 peoples 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 its 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 sheriffs
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 dont 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 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 sheriffs department
arrested him, it also seized the truck.
Arriving on the scene of her sons 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 sons alleged crimes, he responded too bad.
Under Arizona law, the truck could indeed be taken into custody and kept or
sold off by the sheriffs department even though she was never charged with
a crime. It was guilty even if she wasnt.
Welcome to Americas civil asset forfeiture laws, another product of law
enforcements 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 whats now called
for-profit policing in which police departments and state and federal law
enforcement agencies indiscriminately seize the property of citizens who
arent 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 attorneys
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 citys 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 dont 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 Sheriffs 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 havent 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
Americas 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 citys 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 dont 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 its
told when a police officer says so. If the cops give the orders, compliance
-- so this line of thinking goes -- isnt 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 the Washington Monthly. He is a TomDispatch
regular.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turses Tomorrows Battlefield: U.S. Proxy Wars and
Secret Ops in Africa, and Tom Engelhardt's latest book, Shadow Government:
Surveillance, Secret Wars, and a Global Security State in a
Single-Superpower World.
Copyright 2015 Matthew Harwood
© 2015 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176084
Tomgram: Matthew Harwood, Welcome to Cop Land
By Matthew Harwood
Posted on December 20, 2015, Printed on December 20, 2015
http://www.tomdispatch.com/blog/176084/
Sometime in late November, after the Paris terror attacks but before the one
in San Bernardino, I was walking to New Yorks Grand Central Station to
catch the subway home. In front of one of its main entrances, the police had
set up shop, blocking off part of an avenue. The crew I stumbled upon may,
in fact, have been part of the new counterterrorism unit that the New York
Police Department had just rolled out. Whatever the case, the cops were
up-armored in a purely military fashion (even if their togs were fashionably
black and blue) and carrying weaponry the likes of which I had never seen
before on the streets of my hometown. Amid flashing lights, they stood there
with dogs on leashes looking not like the police but figures from some
dystopian, futuristic sci-fi flick. Nothing in particular seemed to be
happening so, after a few minutes, I entered the vast terminal, passing
scattered pistol-packing soldiers in camo, evidently guarding the
just-before-rush-hour crowds. It was certainly a spectacle, but also just
part of the new American normal.
So consider what Im about to mention less than newsworthy amid all the
reports on the militarization of the countrys police and their brutal
behavior. And yet its the sort of tiny news story that once upon a time
would have been striking. Now, few will even notice. Policing headlines
these days, after all, gravitate to graphic videos of cold-blooded police
killings in places like Los Angeles, San Francisco, and Chicago. (There were
70 fatal shootings by the Chicago Police Department alone between 2010 and
2014. As Margaret Talbot pointed out in the New Yorker, only Phoenix,
Philadelphia, and Dallas had a higher number per capita.)
When it comes to the arming of the police in a country in which rural
sheriffs proudly sport battlefield-grade mine-resistant ambush protected
vehicles, or MRAPs, and new militarized urban police units like that one in
New York City are being outfitted with Colt M4 semiautomatic assault rifles
and machine guns, a report that 20 campus cops at Bostons Northeastern
University are going to be armed with semiautomatic rifles qualifies as
distinctly ho-hum news. Or thought of another way, it catches the everyday
reality of a country whose police have been up-arming with a kind of passion
since 9/11. I can, of course, remember the unarmed campus cops of my own
college days and, believe me, weve traveled a long road from policing
panty raids to facing on-campus mass shootings in a country now so
over-weaponized that it seems as if both the police and the citizenry are in
an undeclared arms race.
In these years, the militarization of the police has taken place amid a
striking upsurge of protest over police brutality, abuses, and in particular
the Error! Hyperlink reference not valid. killing of young black men, as
well as a parallel growth in both the powers of and the protections afforded
to police officers. As TomDispatch regular Matthew Harwood, who has been
covering the militarization of the police for this site, reports today, all
of this could easily add up to the building blocks for a developing
police-state frame of mind. If youve been watching the national news
dominated by panic and hysteria over domestic terrorism, including the
shutting down of a major urban school system over an outlandish hoax threat
of a terror attack, or the recent Republican debate over national
security, which turned out to mean only ISIS and immigration, can there
be any question that the way is being paved for institutionalizing a new
kind of policing in this country in the name of American security and fear?
Tom
The Logic of the Police State
People Are Waking Up to the Darkness in American Policing, and the Police
Dont Like It One Bit
By Matthew Harwood
If youve been listening to various police agencies and their supporters,
then you know what the future holds: anarchy is coming -- and its 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 CBSs Face the Nation, the Republican presidential
hopeful asserted that the Black Lives Matter movement wasnt about reform
but something far more sinister. Theyve been chanting in the streets for
the murder of police officers, he insisted. Even the nations 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, its 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 its 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
Its no mystery why so few police officers are investigated and prosecuted
for using excessive force and violating someones rights. Local prosecutors
rely on local police departments to gather the evidence and testimony they
need to successfully prosecute criminals, according to Campaign Zero
http://www.joincampaignzero.org/solutions/ - investigations. This makes it
hard for them to investigate and prosecute the same police officers in cases
of police violence.
http://www.amazon.com/dp/1608464636/ref=nosim/?tag=tomdispatch-20
http://www.amazon.com/dp/1608464636/ref=nosim/?tag=tomdispatch-20Since 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 Patrolmens 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 Cuomos decision, the
chairman of New Yorks 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 Citys Sergeants Benevolent Association, in the
organizations 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: youre 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 individuals 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,
dont 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 prosecutors 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 countrys
distant battlefields have been top concerns for police reformers. In May,
the Obama administration suggested modest changes to the Pentagons 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 shouldnt 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 isnt.) The message that
tops the petition is as simple as it is misleading: Dont 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 peoples 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 its 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 sheriffs
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 dont 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 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 sheriffs department
arrested him, it also seized the truck.
Arriving on the scene of her sons 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 sons alleged crimes, he responded too bad.
Under Arizona law, the truck could indeed be taken into custody and kept or
sold off by the sheriffs department even though she was never charged with
a crime. It was guilty even if she wasnt.
Welcome to Americas civil asset forfeiture laws, another product of law
enforcements 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 whats now called
for-profit policing in which police departments and state and federal law
enforcement agencies indiscriminately seize the property of citizens who
arent 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 attorneys
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 citys 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 dont 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 Sheriffs 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 havent 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
Americas 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 citys 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 dont 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 its
told when a police officer says so. If the cops give the orders, compliance
-- so this line of thinking goes -- isnt 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 the Washington Monthly. He is a TomDispatch
regular.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
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Copyright 2015 Matthew Harwood
© 2015 TomDispatch. All rights reserved.
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