OFF THE WIRE
Radley.Balko@huffingtonpost.com
When the FBI finally located Whitey Bulger in 2010 after searching
for 16 years, the reputed mobster was suspected of involvement in 19
murders in the 1970s and '80s, and was thought to be armed with a
massive arsenal of weapons. He was also 81 at the time, in poor physical
health, and looking at spending the rest of his life in prison. Of all
the people who might meet the criteria for arrest by a SWAT team, one
might think that Bulger would top the list.
Yet instead of sending in a tactical team to tear down Bulger’s door in the middle of the night, the FBI took a different appraoch.
After some investigating, FBI officials cut the lock on a storage
locker Bulger used in the apartment complex where he was staying. They
then had the property manager call Bulger to tell him someone may have
broken into his locker. When Bulger went to investigate, he was arrested
without incident. There was no battering ram, there were no flash
grenades, there was no midnight assault on his home.
That peaceful apprehension of a known violent fugitive, found guilty this week of
participating in 11 murders and a raft of other crimes, stands in stark
contrast to the way tens of thousands of Americans are confronted each
year by SWAT teams battering down their doors to serve warrants for
nonviolent crimes, mostly involving drugs.
On the night of Jan. 5, 2011, for example, police in Framingham,
Mass., raided a Fountain Street apartment that was home to Eurie Stamps
and his wife, Norma Bushfan-Stamps. An undercover officer had allegedly
purchased drugs from Norma's 20-year-old son, Joseph Bushfan, and
another man, Dwayne Barrett, earlier that evening, and now the police
wanted to arrest them. They took a battering ram to the door, set off a
flash grenade, and forced their way inside.
As the SWAT team moved through the apartment, screaming at everyone
to get on the floor, Officer Paul Duncan approached Eurie Stamps. The
68-year-old, not suspected of any crime, was watching a basketball game
in his pajamas when the police came in.
By the time Duncan got to him in a hallway, Stamps was face-down on
the floor with his arms over his head, as police had instructed him. As
Duncan moved to pull Stamps' arms behind him, he says he fell backwards,
somehow causing his gun to discharge, shooting Stamps. The grandfather
of 12 was killed in his own home, while complying with police orders
during a raid for crimes in which he had no involvement.
The Obama administration has begun talking about reforming the
criminal justice system, notably this week, when Attorney General Eric
Holder announced changes to how federal prosecutors will consider
mandatory minimum sentences. If government leaders are looking for
another issue to tackle, they might consider the astonishing evolution
of America’s police forces over the last 30 years.
Today in America, SWAT teams are deployed about 100 to 150 times per
day, or about 50,000 times per year -- a dramatic increase from the
3,000 or so annual deployments in the early 1980s, or the few hundred in
the 1970s. The vast majority of today's deployments are to serve search
warrants for drug crimes. But the use of SWAT tactics to enforce
regulatory law also appears to be rising. This month,
for example, a SWAT team raided the Garden of Eden, a sustainable
growth farm in Arlington, Texas, supposedly to look for marijuana. The
police found no pot, however, and the real intent of the raid appears to
have been for code enforcement, as the officers came armed with an
inspection notice for nuisance abatement.
Where these teams were once used only in emergency situations,
they're used today mostly as an investigative tool against people merely
suspected of crimes. In many police agencies, paramilitary tactics have
become the first option, where they once were the last.
“It’s really about a lack of imagination and a lack of creativity,”
says Norm Stamper, a retired cop who served as police chief of Seattle
from 1994 to 2000. “When your answer to every problem is more force, it
shows that you haven’t been taught and trained to consider other
options."
Why can’t drug suspects be arrested the way Bulger was -- with as
little violence and confrontation as possible? One big reason is a lack
of resources. Many police agencies serve several drug warrants per week.
Some serve several per day. They simply don't have the time or
personnel to come up with a Bulger-like plan for each one. It's quicker
and easier for the police to use overwhelming force.
"There are just too many of these cases," says Joe Key, a longtime
cop who served in the Baltimore police department from 1971 to 1995 and
started the department's SWAT team.
Key adds that another reason police don't want to set up a perimeter
and allow drug suspects to surrender peacefully is that it would give
them an opportunity to destroy evidence. That, of course, means that,
perversely, genuinely violent suspects are treated less harshly than
people suspected of nonviolent crimes.
"Someone might say that's an indication that we need to reconsider
these drug laws," Key says. "But that's a whole different argument."
Add to all of this a Pentagon program that gives surplus military
equipment to local police agencies, a Department of Homeland Security
program that cuts checks to police departments to buy yet more military
gear, and federal grants specifically tied to drug policing and asset
forfeiture policies, both of which reward police officials who send
their SWAT teams on drug raids, and it isn't difficult to see how we
reached the point where SWAT teams are deployed so frequently.
The question is, how could the U.S. roll all of this back? I
interviewed numerous former police chiefs, police officers and federal
officials, all of whom were concerned about the militarization of
America's police forces. Here are some of their suggestions for reform:
End The Drug War
Holder’s announcement this week at least acknowledges the drug war’s
role in mass incarceration. But the damage inflicted by the country’s
40-year drug fight goes well beyond prisons. It’s also been the driving
force behind America’s mass police militarization since at least the
early 1980s, and the best way to rein in the trend would be to simply
end prohibition altogether.
Complete legalization is, of course, never going to happen. But even
something short of legalization, like decriminalization, would take away
many of the incentives to fight the drug war as if it were an actual
war. The federal government could also leave it to the states to
determine drug policy, and with what priority and level of force it
should be enforced.
Your average small town SWAT team would probably continue to exist,
at least in the short term. But these teams are expensive to maintain,
and without federal funding, it seems likely that many would eventually
disband.
End Anti-Drug Byrne Grants
Just ending the federal incentives for mass police militarization
would help. The Edward Byrne Memorial Justice Assistance Grant Program,
for example, distributes grants to agencies for a variety of criminal
justice programs, many of them positive. But the grants can also go to
police departments solely for drug policing. Even more destructive are
grants that create multi-jurisdictional drug task forces, basically
roving squads of narcotics cops that serve multiple jurisdictions, and
often lack any real accountability. Even back in 2000, former FBI
Director William Webster told NBC News that the federal government had
become “too enamored with SWAT teams, draining money away from
conventional law enforcement.”
End The High Intensity Drug Trafficking Areas Program
The federal HIDTA program is another inducement for more aggressive
enforcement of drug laws. Once a police department reaches a threshold
of drug arrests, the agency becomes eligible for yet more federal
funding as a region with high illicit drug activity. This then becomes
an incentive for police departments to desire the high drug trafficking label, which means they'll devote even more resources to drug policing, which means more raids.
End The "Equitable Sharing" Civil Asset Forfeiture Program
Under civil asset forfeiture,
police agencies can seize any piece of property -- cash, cars, homes --
that they can reasonably connect to criminal activity. In most places,
the proceeds of the seizure go to the police department. Since civil
asset forfeiture is used overwhelmingly in drug investigations, this has
created a strong incentive for police to send their SWAT teams to serve
routine drug warrants.
In some states, however, lawmakers have recognized the perverse
incentives at play, and have attempted to get rid of them by requiring
any forfeiture proceeds to go to a state general fund, or toward public
schools. Under the federal government's equitable sharing program,
however, a local police agency can merely call up a federal law
enforcement agency like the Drug Enforcement Administration to request
assistance in an investigation. The entire operation is then governed by
federal law. The DEA takes 10 percent to 20 percent of the seized
assets, then gives the rest back to the local police agency. The effect
is to restore the perverse incentives, and to thwart the will of state
legislatures.
End The 1033 Program
The so-called 1033 program, passed in 1997, formalized a Pentagon
policy of giving away surplus military equipment to domestic police
agencies, which had been going on since the Reagan years. The new law
also set up a well-funded, well-staffed office to facilitate the
donations. Millions of pieces of equipment have since been given away --
$500 million worth in 2011 alone. Once they get the gear -- tanks,
armored personnel vehicles, guns, helicopters, bayonets, you name it --
police agencies in tiny towns have used it to start SWAT teams. Even
seemingly innocuous items like camouflage uniforms can reinforce a
militaristic culture and mindset. One longtime cop (whose father was
also a longtime cop and former police chief) wrote to me in an email,
"One of the problems we both saw in the early 90's were departments
leaving the formal police uniforms with leather belts and holsters in
favor of the dark blue fatigues with nylon mesh belts and holsters. This
put police in a more fighting posture."
Some law enforcement officials have been warning of the problem for
years. One former Washington, D.C., police sergeant wrote in a 1997
letter to The Washington Post, "One tends to throw caution to the wind
when wearing ‘commando-chic’ regalia, a bulletproof vest with the word
‘POLICE’ emblazoned on both sides, and when one is armed with high tech
weaponry ... We have not yet seen a situation like [the British police
occupation of] Belfast. But some police chiefs are determined to move in
that direction." A Connecticut police chief told The New York Times in
2000 that switching to military-like garb "feeds a mindset that you’re
not a police officer serving a community, you’re a soldier at war. I had
some tough-guy cops in my department pushing for bigger and more
hardware."
It isn't difficult to see how giving cops the weapons, uniforms, and
vehicles of war might encourage them to take a more warlike approach to
their jobs. That won't end simply by shuttering the 1033 program. But it
would certainly be a start.
Reform Department Of Homeland Security Grants
Since Sept. 11, 2001, the federal government has handed out some $34 billion
in grants to police departments across the country, many for the
purchase of battle-grade vehicles and weapons. This program has created a
cottage industry of companies to take DHS checks in exchange for guns,
tanks and armored vehicles. In effect, it has given rise to a police
industrial complex.
There's also little oversight. DHS can't even produce a comprehensive
list of police departments that have received grants and how they've
used them. Though ostensibly for anti-terrorism efforts, the grants are
going to places like Fargo, N.D., where they're inevitably used for
routine policing. (Or in the case of Fargo,
an armored personnel vehicle with rotating turret has been used mostly
for "appearances at the annual city picnic, where it’s been parked near
the children’s bounce house.")
The federal government has a legitimate interest in protecting the
country from terrorist attacks. So at least in theory, anti-terror
grants to domestic police agencies make sense. But it seems unlikely
that the grants in their current form are doing much to prevent
terrorism.
End Federal Medical Marijuana Raids
In the late 1990s, the Clinton administration set a dangerous
precedent when it began sending federal SWAT teams to raid medical
marijuana businesses in states that had legalized the drug for that
purpose. By then, the use of SWAT teams to serve drug warrants was
common, and the explosion in the number and use of SWAT-like teams had
already happened. But until then, police agencies at least made the
claim that the use of such force was in response to a genuine threat --
that drug dealers were heavily armed, dangerous, and had no qualms about
killing police.
The medical marijuana raids couldn't be justified that way. These
were licensed businesses, operating openly and in compliance with state
laws. The show of force wasn't about officer safety or community safety.
It was about sending a message. These people were openly flouting
federal law, and they were to be made into examples. This isn't the sort
of government action we commonly associate with free societies. And of
course, these raids have continued ever since.
Return SWAT To Its Original Purpose
Legislatures or city councils could pass laws restricting the use of
SWAT teams to those rare emergencies in which there’s an imminent threat
to public safety. They could limit the use of no-knock raids or even
forced entry to serve warrants only on people suspected of violent
crimes. One policy might be to allow the deployment of a tactical team
only when police have good reason to believe that a violent crime is in
the process of being committed, or is likely to be committed imminently
without police intervention.
Key, who started the Baltimore SWAT team, suggests a broader rule,
but one that would still impose limitations. "I think you could limit
SWAT teams and the dynamic entry tactics to those cases where police can
obtain a no-knock warrant," he says. "The courts impose more
restrictions for no-knock warrants. You have to show evidence that a
suspect may attempt to arm himself and attack police, or may destroy
evidence if there's an announcement."
At the very least, lawmakers should demand an end to SWAT mission
creep. It's beyond comprehension that such violent tactics would be used
to enforce regulatory law. SWAT teams also shouldn’t be raiding poker
games, bars where police suspect there's underage drinking or the
offices of doctors suspected of over-prescribing painkillers. They
shouldn't be performing license inspections on barbershops, or swarming
Amish farms suspected of selling unpasteurized cheese. Like the medical
marijuana raids, these sorts of raids are straight-up abuse -- for the
sake of sending a political message.
Mandate Transparency
In 2008, the Maryland legislature passed a bill requiring all police
agencies in the state to issue twice-yearly reports on how often they
use their SWAT teams, for what purpose, what the searches found, and
whether any shots were fired. It's a simple bill that puts no
restrictions on the use of SWAT teams, yet was opposed by every police
agency in the state.
Other states could pass similar laws. And they could go further.
Police departments could track warrants from the time they’re obtained
to the time they’re executed, in a database that’s accessible to
civilian review boards, defense attorneys, judges, and, in some cases,
the media (acknowledging that the identities of confidential informants
need not be revealed). Botched and bungled raids should be documented.
These include warrants served on the wrong address, warrants based on
bad tips from informants and warrants that resulted in the death or
injury of an officer, suspect or bystander.
Police departments should also keep running tabs of how many warrants
are executed with no-knock entry versus knock-and-announce entry, how
many required a forced entry, how many required the deployment of a SWAT
team or other paramilitary unit, and how many used diversionary devices
like flash grenades. They should also make records of what these raids
turned up. If these tactics are going to be used against the public, the
public at the very least deserves to know how often they’re used, why
they’re used, how often things go wrong, and what sort of results the
tactics are getting.
It's clear that there has been a huge increase in the number of SWAT
teams and the frequency of their use. But we can't have a real debate
about police militarization without better data on its pervasiveness.
There are other policies that would make police departments more
transparent. The remarkable advances in and democratization of
smartphone technology have enabled a large and growing number of
citizens to record the actions of on-duty police officers. Rather than
fighting the trend, police officials and policymakers ought to embrace
it. Legislatures could pass laws that clearly establish a citizen’s
right to record on-duty cops, and provide an enforcement mechanism so
that citizens wrongly and illegally arrested for doing so have a course
of action. As many police officials have pointed out, such policies not
only expose police misconduct, leading to improvements, but can also
provide exonerating evidence in cases where police officers have been
wrongly accused.
All forced-entry police raids could be recorded in a tamper-proof
format, and the videos made available to the public through a simple
open records request. This could be done efficiently and inexpensively.
Even better, it wouldn't be difficult to equip the officers
participating in a raid with cameras mounted on their helmets, jackets,
or guns. Not only would recording all raids help clear up disputes about
how long police waited after knocking, whether police knocked at all,
or who fired first, but the knowledge that every raid would be recorded
would also encourage best practices among the SWAT teams. Additionally,
recordings of raids would provide an accurate portrayal of how drug laws
are actually enforced. It’s likely that many Americans aren’t fully
aware how violent these tactics can be. Perhaps many would still support
tactical raids for drug warrants even after being exposed to videos of
drug raids. But if the drug war is being waged to protect the public,
the public should be able to see exactly how the war is being waged.
Local police departments that receive federal funding should also be
required to keep records on and report incidents of officer shootings
and use of excessive force to an independent federal agency such as the
National Institute for Justice or the Office of the Inspector General.
Those that don't comply should lose federal funding. Currently, while
all police agencies are required to keep such data, that requirement isn't enforced.
We also need easy-to-find, publicly accessible records of judges and
search warrants (and where applicable, prosecutors). The public deserves
to know if all the narcotics cops in a given area are going to the same
judge or magistrate with their narcotics warrants, or if a given judge
hasn’t declined a single warrant in, say, 20 years. As more courts use
computer software to process warrants, it will get easier to compile
this sort of information and make it available to the public.
Change Police Culture
All of these policies have infused too many police agencies with a
culture of militarism. Neill Franklin is a former narcotics cop in
Maryland, who also oversaw training at the state's police academies in
the early 2000s. “I think there are two critical components to policing
that cops today have forgotten," he says. "Number one, you’ve signed on
to a dangerous job. That means that you’ve agreed to a certain amount of
risk. You don’t get to start stepping on others’ rights to minimize
that risk you agreed to take on. And number two, your first priority is
not to protect yourself, it’s to protect those you’ve sworn to protect.
But I don’t know how you get police officers today to value those
principles again. The ‘us and everybody else’ sentiment is strong today.
It’s very, very difficult to change a culture.”
But there are some practical policy changes that may work. Police
today are given too little training in counseling and dispute
resolution, and what little training they do get in the academy is
quickly blotted out by what they learn on the street in the first few
months on the job. When you’re given abundant training in the use of
force, but little in using psychology, body language, and other
non-coercive means of resolving a conflict, you’ll naturally gravitate
toward using force. “I think about the notion of command presence,”
Stamper, the former Seattle police chief, says. “When you as a police
officer show up at a chaotic or threatening or dangerous situation, you
need to demonstrate your command presence -- that you are the person in
command of this situation. You do this with your bearing, your body
language, and your voice. What I see today is that this well-disciplined
notion of command presence has been shattered. Cops today think you
show command presence by yelling and screaming. In my day, if you
screamed, if you went to a screaming, out-of-control presence, you had
failed in that situation as a cop. You’d be pulled aside by a senior cop
or sergeant and made to understand in no uncertain terms that you were
out of line. The very best cops I ever worked around were quiet. Which
isn’t to say they were withdrawn or passive, but they were quiet. They
understood the value of silence, the powerful effect of a pause."
Stamper adds that these things aren’t emphasized anymore. “Verbal
persuasion is the first tool a police officer has. The more effective he
or she is as a communicator, the less likely it is he or she is going
to get impulsive -- or need to.”
Franklin suggests that deteriorating physical fitness at some police
departments may also lead to unnecessary escalations of force -- another
argument in favor of foot patrols over car patrols. “When I was
commander of training in Baltimore, one of the first things I did was
evaluate the physical condition of the police officers themselves,”
Franklin says. “The overweight guys were the guys who knew very little
about arrest control and defensive strategy. Being a police officer is a
physically demanding job. You can’t be so out of shape. When you are,
you’re less confident about less lethal force. It can get so that the
only use of force you’re capable of using is a firearm. You also fear
physical confrontation, so you’re more likely to reach for your firearm
earlier. Getting cops in shape is a confidence builder, and it gets
people away from relying too much on the weapons they have on their
belt.”
Police should also be required to learn and understand the effect
that power can have on their own psyche. They should be taught the
Stanford prison experiment, the Milgram experiment and similar studies.
Having complete power over another person can be immensely corrupting.
But simply being aware of its corrosive effects is an important step
toward guarding against them.
Police departments and policymakers should also embrace real
community policing. That means taking cops out of patrol cars to walk
beats and become a part of the communities they serve. It means ditching
statistics-driven policing, which encourages the sorts of petty arrests
of low-level offenders and use of informants that foment anger and
distrust. Community policing makes cops part of the neighborhoods they
serve, gives them a stake in those neighborhoods, and can be the
antidote to the antagonistic us-versus-them relationship too many cops
have with the citizens on their beats. (And the mentality usually goes
both ways.)
More generally, politicians be should called out and held accountable
when they use war rhetoric to discuss crime and illicit drugs. Words
and language from policymakers have an impact on the way police officers
approach their jobs, and the way they view the people with whom they
interact while on patrol. If we want to dissuade them from seeing their
fellow citizens as the enemy, political leaders -- the people who set
the policies and appropriate the budgets for those officers -- need to
stop referring to them that way.
Ultimately, we're unlikely to see any real efforts to reform or
rollback police militarization until politicians are convinced there is a
problem and pay a political price for not addressing it. Today,
domestic police officers drive tanks and armored personnel carriers on
American streets, break into homes and kill pets over pot, and batter
down doors to raid poker games. They’re now subjecting homes and
businesses to commando raids for white-collar and even regulatory
offenses. And while there has recently been some action from state
legislators, there’s been barely any opposition or concern from anyone
in Congress, any governor, or any mayor of a sizable city.
Until that happens, expect more tanks, more and bigger guns, more
Robocob responses to protest, and more, increasingly violent raids for
increasingly less serious crimes and infractions.
Radley Balko is a senior writer and investigative reporter for The Huffington Post. This essay is adapted from his new book, Rise of the Warrior Cop: The Militarization of America's Police Forces.
