President Obama’s announcement today that local police forces in the United States will no longer be able to access certain kinds of military surplus equipment, in an effort to demilitarize the police and change its increasingly out-of-whack subculture, is the best news I have heard from the White House in a long time. I regret that it has taken six and half years for the President to do something about this, but better late than not at all.The police have been on my mind lately anyway. I tried recently to commission a TAI essay on police subcultures in the Middle East, particularly in the Arab countries, as part of a larger thematic cluster on police generally. I undertook the effort before the Baltimore riots, but now I’m even more determined to get this done. Finding an author to write on the Middle East, however, has proven very hard. To my surprise, very little has been written on this topic. I’m still digging, hoping to find authorial treasure.This is not so when it comes to literature on the police in the United States, which is voluminous, diverse, and episodically interesting. Yet little of the scholarly material seems even to address, let alone really engage, the questions on a lot of American minds nowadays: Are the cops increasingly out of control, and if so why? And if so, whatever the reasons may be, what to do about it?My hunch is that after Ferguson, Staten Island, North Charleston, and Baltimore, most Americans would incline to answer the first question with a conditional “yes.” As for why, I suspect many would point their first finger at racism. There is some, no doubt. But I don’t think it’s as simple as that. As for what to do about it, that really does depend on one’s analysis of causes. So far we have two different classes of remediation on offer: Put cameras on cops; and, as the Baltimore case illustrated recently, federalize the problem. My sense is that the former is a disastrous idea, and that the latter could end up as bad or worse.As soon as you put a camera on any social interaction and people know it, they begin to act differently. Ask any professional photographer if you don’t believe me. The relationship between a policeman and anyone who is innocent of wrongdoing is supposed to be one of mutual aid and respect. A camera introduces third parties not present but there all the same, and the reciprocal nature of the face-to-face relationship is inevitably distorted. People begin to act how they think they should, which introduces a range of hard-to-interpret uncertainties into the face-to-face interaction. Never mind for the moment the considerable privacy issues involved; cameras make everyone and the situations in which they engage accident-prone because they introduce interpretive distortion. What they might deliver in the form of restraint and accountability, they will take away from the integrity and honesty of all involved. Putting a camera on a cop is to say we don’t trust him (or her) to behave professionally. It’s hard to think of anything more damaging to professional responsibility and morale in the longer run than to institutionalize such an insinuation.As for asking the Justice Department to investigate the Baltimore police department, as Mayor Stephanie Rawlings-Blake did last week: that is tantamount to an admission that the local, democratically elected political structure cannot manage its own city. Perhaps she had a good reason to do this, but it is hard to see how Baltimore’s leadership can restore trust in itself—and that of the people in the government of Charm City (recently parodied as Charred City)—if the Mayor has exported her responsibility to Washington. If the Justice Department ends up proposing a series of actions the city cannot undertake on its own, then Baltimore stops being a local democracy for as long as it takes to restore control and accountability. If you happen to believe that perverse Federal incentives are part of a larger problem anyway (and you should; see below), then this ends up encouraging all the wrong vectors at play. What perverse incentives? Now we come to the backstory behind the President’s announcement.Loyal readers may remember an essay in the November/December 2013 issue of The American Interest by Radley Balko called “SWATted.” Balko showed in this essay, and in his book Rise of the Warrior Cop: The Militarization of America’s Police Forces (PublicAffairs, 2013), how the Federal reaction to 9/11 encouraged the formation of hundreds of police SWAT teams across the country. The idea was, in part, to use DHS to push resources and authority out to would-be first responders, including not least police, to build up a new domestic anti-terrorism infrastructure. The lucrative result was, in practice, to push a lot of fancy and lethal military surplus out to cops, whose departments then got snared by a familiar use-it-or-lose-it dynamic. Once SWAT teams took shape, police leaders needed to use them or else lose their budget share for equipment and training (such as it was) for the next year.But use how? Terrorist incidents meriting a SWAT response amounted to approximately zero. So these SWAT teams were increasingly pressed into service in the so-called drug war, resulting in a monstrous over-militarization of that function. Judges got very liberal in authorizing “no knock” entries, which constituted an abuse of their office. Not as infrequently as one might think, cops got addresses wrong, smashing their way into houses and killing people, some of them completely innocent, others not but certainly not deserving of summary execution. Nothing usually happened to the cops who did these things; “just an honest mistake”, the victim’s family would be told. Balko tells the story with verve, and he’s got the data.SWAT teams come in handy in hostage situations, where some gunman is holed up with the terrified pawns of his addled imagination. In situations where no violence or potential violence is involved, using a SWAT team is like breaking open a walnut with a sledgehammer. Something or someone is going to get needlessly damaged. But as Balko illustrates, amid the post-9/11 cultural militarization of American society, the police began to change their sense of what they thought they were doing. Instead of being the helpful man in blue taking care of law and order, police began fancying themselves as essentially paramilitary shock troops in an alien, hostile environment. The subculture itself slowly—or actually not so slowly—changed.This general drift in attitude, no doubt abetted by the proliferation of countless violent police and forensic medical dramas on television, reinforced a highly specialized “mean world” syndrome, a la the late George Gerbner. As I have noted before, life imitates art—even very bad and vulgar art. The world was already pretty mean in underclass-populated inner cities, and the new and ubiquitous fictional dispensations just made it worse. As the economy deteriorated further for the inner cities, as a dysfunctional education system continued to fail young people along with so many dysfunctional single-parent families, you had something that resembled—for Baltimore, to take the case in point—the reality mercilessly depicted in The Wire.But the abuse of SWAT teams and otherwise military-minded police has hardly been limited to inner-city underclass war zones, where fairly large numbers of black police on patrol belie the simplistic racism explanation for what goes on there. Here is a true story, told in anonymized fashion to protect, well, everyone. At about three o’ clock in the morning in April 2013, a county SWAT team invaded a home in one of the most affluent zip codes in the United States. Bright lights, shouts by men in flak jackets, stun grenades, weapons pointed, the whole works. Luckily, the doors to the house were not locked; the neighborhood was sufficiently safe that the people who lived there saw no reason to bolt the doors. Had they been locked, the SWAT teams would have smashed them down, causing thousands of dollars worth of damage.In the house at the time, in a downstairs bedroom, was a sixty-something married couple fast asleep. Upstairs was their 25-year old son, also fast asleep. SWAT team members placed wire restrainers on the wrists of the startled couple, behind their backs, as they sat in their own bed, in their own bedroom. A detective announced that neither member of the sixty-something couple was the object of the raid, but that the police had seized the premises looking for their son on suspicion of dealing pot. The son’s father asked, “Well, if this is about him and not us, why are you hurting my wife?” She had a sore shoulder to start with. The detective, an overweight black middle-aged man who lacked facility in standard English, told the man to shut up and warned him about his having “a attitude.”The detective asked if there were any weapons in the house. The owner replied, no, not unless you consider an air rifle used to scare squirrels out of fruit trees a weapon.The cops, nearly a dozen of them, ransacked the house, arrested the son and led him out in handcuffs. They broke things and damaged furniture. They found only about 22 grams of various sorts of designer marijuana, some plastic bags, a small scale, some glass pipes, and the like. They also took the son’s car, registered in the father’s name, despite the fact that no contraband of any sort was found in it.The son felt terrible for what he’d put his parents through. The parents felt terrible for their son. They had told him many, many times that he needed to get control of his pot habit, and that he must never, ever, use the family home for any trading. The parents could never quite figure out if the son’s endless reassurances were truthful. They sort of realized that they were not, but to confront the son would have opened up a hornet’s nest of recrimination and pain without revealing any obvious way to fix the problem. And so, as often happens in such situations, the status quo seemed ambiguous enough to bear, so long as the parents were convinced that no harder drugs were in the mix. The son was addicted but functional; the parents were concerned but for all practical purposes stymied—not an uncommon dilemma.To make a long story short, after his arrest the son attended intense therapy sessions over several months to deal with his addiction and succeeded in conquering it. His parents were part of the process, going weekly and sometimes more often to parent support groups. Some parents were dealing with children hooked on heroin, oxy, amphetamines, and other very dangerous drugs. The philosophy of the anti-addiction clinic was a crock of pseudo-scientific eyewash, but its success rate was high nevertheless. It was sobering indeed for the parents to witness what other parents had been going through with addicted children, sometimes for years, and often enough with very sad endings. They knew about all of this in theory, but to see the faces and hear the voices of pained parents whose troubles far exceeded their own taught an unforgettable lesson.The parents learned that while most people can handle moderate use of intoxicants of various sorts, anywhere from 10-15 percent of the population just cannot. They lack impulse control, and they binge. F. Scott Fitzgerald captured the phenomenon perfectly when it came to that most dangerous drug on the scene: alcohol. “First you take a drink”, said Fitzgerald, “then the drink takes a drink, and then the drink takes you.” It’s the same with pot or pills or anything else for people with addiction-prone biochemistry. The glib advocates of legal marijuana and legal everything do not think of this 10-15 percent. They desire no reminders that what is often their own selfishness dressed up in thin principles would destroy the lives of even more people and their families than is the case already. It’s a complex issue, to be sure, with reasonable arguments on all sides; it’s their glibness in this debate that is entirely out of place, and really unforgivable.Eventually, after the son’s night in a county lock-up, the details came out. The son had been dealing pot to cooks and waitresses and assorted friends just to finance his own habit. He never sold to kids, never to strangers, never anything but pot—except rarely a magic mushroom or two. He had known someone back in high school who had died from an overdose of oxycontin. By this point, he had graduated from a four-year liberal arts college and was in odyssey mode waiting to go to graduate school. He was working a day job, too, not just selling pot. He did not think of it as a business, and never thought about making it into a business. What he did never involved weapons or violence of any kind.Then some older guy asked him for some pot. The son did not know the man and declined. He declined two or three times more, but the man persisted, saying he wanted some pot for medical purposes. So the son sold him a small amount. Not very long later, the man asked for a larger amount. The son began to get suspicious that the guy was an undercover cop trying to entrap him, but he made another sale anyway. Meanwhile, the family noticed more than the usual helicopter hoverings near by. They deployed three grow lights in their dining room to keep their potted—but not pot—plants alive during the cold weather. It later came out that the cops thought the son was running a grow house, through later on they denied ever thinking this. They discovered much less incriminating evidence than they expected. They basically screwed up.Now, since the car was in the father’s name and there was no good reason for the cops to take it, the family asked for the car back since the son needed it for getting to and from work. The cops replied that only if the family “donated” a $1,500 contribution to a Drug Prevention Fund could it be returned anytime soon; otherwise the return would have to wait for the end of the legal process many months away, and they would not guarantee the return even then. The car was barely worth $1,500, but it was needed for commuting, so the family paid the “charity” ransom.George Hunston Williams once wrote that one need “be cautious when you choose your enemy for you will grow to be more like him.” The cops have had little choice over time but to choose crooks and miscreants of various kinds for their enemies, but the result is that they have become very much like their opposite numbers. In the episode described here, the cops engaged in entrapment. They engaged in breaking-and-entering. They acted violently by threatening acknowledged innocent people with deadly weapons, and they destroyed property. They engaged in what is usually called racketeering or extortion when it came to the car. Were it not for a judge signing a warrant for a “no knock” forced entry to a private home, all these behaviors would have qualified as criminal. Yes, the son broke the law, but he entrapped no one, threatened no one, engaged in no violence nor tried to extort money from anyone. Remember the Fourth Amendment, please, and then think hard about all this. As to police engaging in extortion as a way of life, note that for quite a long time, until this past January, it has been legal for local and state police to seize cash and other property from citizens never even accused of a crime. According to a Washington Post investigation, since 2001 the cops have seized more than $2.5 billion from nearly 62,000 citizens, with no warrants or any criminal charges. Most of the victims were unable to recover their property. These seizures were made under Federal law through the Justice Department’s Equitable Sharing Program. This program allows local police to keep as much as 80 percent of seizure proceeds; the Feds, in theory at least, get the rest.The purpose of the 1984 law, evidently, was to deprive criminals of illicit gains and thus deter crime, sort of a spinoff or extension of the RICO statutes (themselves of dubious constitutional validity). But it is hard to understand how a law can do that properly if no criminal charges are or need to be brought in specific cases. Back in January, when the committee was formed that gave birth to today’s White House announcement, Attorney General Eric Holder announced policies sharply limiting the law’s application—one of the only positive things he did during his long tenure. In February efforts commenced to adjust the law because it had been subject to such widespread and growing abuse by police.Then, in mid-April, during a hearing before Senate Judiciary Committee, a national law enforcement organization testified in favor of keeping the law as it is, and some Senators, notably Jeff Sessions (R-AL), supported this view. But when Fraternal Order of Police National President Chuck Canterbury claimed that the proposal to restrict the law would deny local and state police departments “hundreds of millions of dollars to fight crime and terrorism”, that was way too much for Senator Charles Grassley (R-IA). Grassley dismissed the statement outright, noting that the law had created “perverse incentives” for police “to cut corners and seize cash and property without clear evidence of a crime.” Grassley added that the police position “demonstrates the absurdity of a system of justice in which some in law enforcement appear to value funding their own operations over protecting civil rights.” Even Senator Patrick Leahy (D-VT), who approves of the law on principle, admitted, “We have all seen the troubling reports. Roadside stops that resemble shakedowns. Seizure of bank accounts.”No, Senator Leahy: They do not resemble shakedowns; they are shakedowns. It’s extortion by the cops, over and over and over again. And—surprise, surprise—this extortion racket tends disproportionately to victimize “minorities”, which is a euphemism for black people, in case you didn’t know. The only distinction between criminal behavior and what the police do in these cases is the immunity provided by the uniform. And I don’t know why I think this, but I somehow doubt that all such confiscated cash has actually made it to departmental coffers.I remain dumbfounded by the attitude of Senator Leahy and especially of Senator Sessions. That a law of this sort was ever passed in the first place is a mark of shame on the United States of America, for it has more than a few times turned a police badge into a license to steal. This is something that happens every day in Arab countries, and in many other countries. People hate it, but they get used to it. In low-trust Arab societies, strangers are inherently a problem, especially when they try to coerce you. In an Arab city, a policeman is likely to be a stranger; in a village, he’s more likely to be a cousin, and so informal authority structures will trump modern, formal ones. But in America? America the exceptional?This country of ours is not tribal, and it is not a structural kleptocracy like Russia, in which police sit near the bottom of a corrupt food chain that runs all the way up to the highest offices of the land. So explaining the Equitable Sharing Program requires other assumptions that possibly can make sense within the framework of a state characterized by Weberian standards. But I’m not sure what those assumptions are, and so I remain mystified as to why President Reagan ever agreed to sign this horrid law. One would think that some people out there at the time had never heard of the Fourth Amendment. Where was the ACLU when we needed it? I was born and raised in the Washington, DC area, but I spent quite a while living in Philadelphia. When I arrived there in the autumn of 1969, Frank Rizzo was police chief. The police force in those days included a number of informal “enforcers”, basically psychologically troubled cops who were encouraged to beat up blacks, Asians, long-haired male college students, and anyone else they didn’t like for some random reason. The idea was to instill fear, plain and simple. It was a barely civilized version of Lenin’s orders to his henchmen in this or that oblast after 1920 to “liquidate 2 percent of population”, which 2 percent he could not have cared less. One of my roommates became a victim of this derangement. His crime was to be walking down the street humming a tune.When Rizzo ran for Mayor, he promised the good people of Philadelphia that, “if elected, I will make Attila the Hun look like a faggot.” He won election, not once, but twice. Maybe the people of Philadelphia, in their majority in that supposed city of brotherly love, were not then so good after all.So, please, spare me the usual sanctimony about the police. I’ve been around the block a few times now, and yes, I’m prepared to believe that most police in America are honest and dedicated to the public welfare. Certainly all communities need policing; rule enforcement is one of the deepest primordial characteristics of all social animals, and there is no doubt that it is based on and sustained by genetic means in humans. But “most police” is not nearly good enough in the United States of America. There is a problem, and we must never define police deviancy down. Serious people need to think a lot more deeply than they have done until now about how to solve this problem. It’s not mainly about racism; it is instead about an entrenched institutional defect many years now in the making. Holder’s January announcement and the President’s remarks today mark a good start. But it’s only a start. We still have a long way to go to reverse the trends that have slowly been turning the United States toward the dark side of a police state.
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Published on: May 18, 2015
Armed and DangerousCops and the Fourth Amendment
President Obama’s announcement today that local police forces in the United States will no longer be able to access certain kinds of military surplus equipment is the best news we’ve heard from the White House in a long time.