Police Militarization and the War on Citizens

When the Super Bowl rumbled into town earlier this year, our city greeted it—in true San Francisco fashion—with a weeklong party.

Only this bash had rooftop snipers with assault rifles trained at revelers, hundreds of helmeted riot cops surrounding protesters, and surveillance technology reading everything from your license plate to your Twitter feed.

Several blocks of our iconic waterfront transformed into Super Bowl City. It was billed as the center of fan energy. That may have been true, but it looked more like the Siege of Sarajevo with marketing exhibits.

In fairness, the Big Game is a big deal. Watched on television by 100 million, it provides a worldwide stage for potential terrorists. But to see tons of military might turned on peaceful protesters looked distinctly un-American.

San Francisco is America’s poster child for income inequality. While the median home price hovers near $900,000, according to the Council for Community and Economic Research’s Cost of Living Index, nearly 7,000 people sleep on the streets or in shelters. SeeSan Francisco Homeless Point-in-Time Count & Survey Comprehensive Report (2015). So city leaders signing up to host the Super Bowl at a price tag of $5 million didn’t sit well with homeless advocates.

They showed up with picket signs and pitched tents in the official party zone. They were surrounded within minutes by approximately 100 law enforcement officers in riot gear. A voice boomed through a loudspeaker, ordering them to disassemble the tents or risk having them confiscated. Meanwhile, a black protester was detained for taking photographs of a nearby sniper’s nest. Justin Gardner, Super Bowl Takes Priority over Humans as Riot Police “Sweep Away” the Homeless before Big Game, Free Thought Project.com (Feb. 4, 2016), http://tinyurl.com/jmgp2cb Jack Morse, Super Bowl City Protester Detained and Cited Apparently for Photographing Police, SFist (Feb. 4, 2016), http://tinyurl.com/grjbkug.

The protesters and police eventually struck a compromise. Activists held the tents aloft rather than blocking paths to the beer stands, and agreed to march only around the perimeter of the event space.

What Happens When the Whole World Isn’t Watching?

Such compromises are in scarce supply in black and brown communities, where militarization of police first took root decades ago to fight the war on drugs. In these neighborhoods, heavily armed paramilitary teams of 20 or more officers break down doors, stun residents with flash-bang grenades, and point assault weapons at children. They are not trying to take down an active shooter or neutralize a terrorist threat. They are simply serving warrants and searching for drugs.

The ACLU’s exhaustive report, War Comes Home, paints a damning picture of the human cost of SWAT raids: a child burned in his crib by a flash-bang grenade during a 3:00 a.m. raid over a $50 drug sale, a young woman and her 14-month-old son shot by officers who were searching for her boyfriend, a grandfather mistakenly shot by an officer in the wrong house, a war veteran killed after he grabbed his shotgun to investigate the strange noises outside his window. These tragedies are in addition to the ordinary collateral damage repeated so often it ceases to become news: slaughtered family pets, traumatized children, shattered windows, ruined heirlooms, and demolished property.

These military tactics and urban warfare equipment are used mostly for nonviolent drug crimes, despite the war on drug’s increasing unpopularity with the public. While 67 percent of Americans prefer drug treatment over policing and prosecution, see Keri Blakinger, Why the War on Drugs Is Poised to End—Even If “Wire” Creator David Simon Worries It Won’t, Alternet (Sept. 7, 2015), http://tinyurl.com/jbt5uzr, more than 800 SWAT deployments were conducted by 20 law enforcement agencies during 2011 and 2012, according to the ACLU’s statistical analysis. Approximately 62 percent of them were solely to search for drugs. When paramilitary tactics are used in drug searches, people of color are the most frequent targets. The ACLU’s analysis found that more than 42 percent of people affected by SWAT deployment to execute search warrants were black. Another 12 percent were Latino.

How Did We Get to This Point?

The war on drugs. The modern militarization of police departments is tangled up with our country’s troubled racial history. Riots in Watts, Detroit, and other urban centers in the 1960s spurred white fear of black insurgency. In response, President Lyndon Johnson signed the Omnibus Crime Control and Safe Streets Act of 1968. The legislation birthed the Law Enforcement Assistance Administration, which granted federal funds to local governments in order to obtain military resources to quell potential riots. Smaller cities were now able to develop SWAT teams like the one first developed in Los Angeles in the 1960s. Today, not only do nearly 90 percent of American cities with populations above 50,000 have SWAT teams, so do more than 90 percent of cities with 25,000 to 50,000 residents. See J.F., How America’s Police Became So Heavily Armed, Economist Explains (May 18, 2015), http://tinyurl.com/ztxmehp. That’s more than four times the level from the mid-1980s.

The war on drugs—first by Richard Nixon and then by Ronald Reagan—reinforced the notion of needing military might to fight a domestic health problem. Again, racism provided fuel for the fire. Although studies have shown that all races use illegal drugs at a similar rate, African Americans became demonized and arrested at an alarming rate during the crack epidemic of the 1980s. Drug laws were formed based not on the drug used, but on who was using the drug, with crack cocaine carrying federal penalties 100 times harsher than the same drug in the powdered form that whites favored. SeeRace and the Drug War, Drug Pol’y Alliance, http://tinyurl.com/d9skxl4. Countless African Americans suffered lifelong punishment under the drug war’s racist enforcement, losing their freedom, their ability to get a job, and even their right to vote.

The crack epidemic is long over, and violent crime has fallen for the past 30 years. Yet SWAT enforcement continues to soar as police with shields, military weapons, and battering rams burst into homes in the middle of the night just to serve a warrant.

Where the war on crack left off, civil forfeiture laws and destructive funding schemes took over, handing police the financial incentive to continue this failed and unpopular war. Federal funding for local law enforcement is often based on how many people are arrested and the value of assets seized in drug busts. The simplest way for police departments to boost their arrest numbers and get funding for military-grade toys is to target petty drug offenders. Taking down kingpins or international suppliers is difficult. Busting low-level dealers or addicts is easy.

In 1986, its first year of operation, the federal Asset Forfeiture Fund held $93.7 million. By 2012, that and its sister account, the Seized Asset Deposit Fund, held nearly $6 billion. SeeCops or Soldiers?, Economist (Mar. 22, 2014), http://tinyurl.com/pw4w8sr

The lure of money for training and equipment turned the war on drugs into the war on crumbs. See Jeff Adachi & Tal Klement, The War on Crumbs, 91 Or. L. Rev. 1319 (2013). Decoy officers posing as drug addicts stumble up to real junkies on America’s poorest streets and offer to buy their $10 personal stash for $20. When the deal is struck, a dozen plainclothes cops rush in, slapping on the cuffs and earning the right to say they took a drug dealer off the street—at least in the most technical sense. In many cities, these buy-busts constitute the majority of drug arrests. It is simply creating crime among society’s most vulnerable people in order to rack up arrest numbers and, consequently, money.

The federal funding and surplus military equipment have only increased thanks to the post-9/11 war on terror. A study by the Center for Investigative Reporting found the feds distributed more than $34 billion to local police departments since the 2001 terrorist attacks. This cash infusion has also spawned hundreds of regional anti-drug task forces across the country. Members of these task forces regularly make headlines due to their corruption and misconduct, while citizens complain of routine civil rights violations and rampant racial disparities in enforcement.

In San Francisco, we experienced this corruption firsthand. For years, our clients who lived in residential hotels complained of the police department’s undercover narcotics unit bursting into their rooms without warrants, tackling them as if they were enemy combatants, and even stealing their meager belongings. We took their claims in front of judges. They filed complaints with police watchdog organizations. They begged to be believed. They never were—in each case, it was the word of a poor person with a criminal record against a sworn peace officer.

In 2009, one of our public defender investigators got a hold of hotel surveillance tape. The sophisticated camera system showed officers plainly taking part in every crime they were accused of committing. The revelations led to the disbanding of the troubled unit and criminal convictions of several officers. The FBI investigation it spawned showed deeper corruption than we had dreamed possible—officers burying large sums of drug money and forcing people to sell narcotics and turn over the proceeds.

This is what happens when there are financial incentives for police to collar as many drug users and low-level dealers as possible. And when laws allow police departments to seize people’s assets for their own coffers, it is not a far moral leap for individual officers to slip people’s belongings into their own pockets. To paraphrase Detective Lester Freamon from The Wire, you follow the drugs, you get drug addicts and drug dealers; but you start to follow the money, you don’t know where the hell it’s going to take you.

Police brutality. Violent police overreach, of course, has always met with resistance. Monroe v. Pape, 365 U.S. 167 (1961), holds particular significance, becoming a crucial part of civil rights law and carving a path for police brutality or racial bias victims to be compensated.

In that case, 13 Chicago police officers broke into an African American family’s home without a warrant while the mother, father, and their six children slept. They dragged the parents from their bed and forced them to stand naked in the living room while officers ransacked their house. The father was taken to the police station where he was interrogated about a murder and released without charges. He was not allowed to contact an attorney or make any phone calls.

The Monroe family sued the city of Chicago for violating their civil rights, under the Second Enforcement Act of 1871, also known as the Ku Klux Klan Act. The little-used act, which empowered the president to suspend the writ of habeas corpus to combat the Ku Klux Klan, was signed by President Ulysses S. Grant in 1871. It was the last of three Enforcement Acts passed by Congress during Reconstruction to combat attacks on black voting.

In a victory for the Monroes and victims of police brutality ever since, the Supreme Court reversed the lower court’s dismissal of the complaints against the officers and concluded that Congress “meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position,” under section 1983.

Few officers are prosecuted for hurting or killing citizens because local district attorneys rely on police departments to investigate and bring cases to them to prosecute. Furthermore, juries in criminal cases are reluctant to convict cops. However, victims of overzealous policing have had better luck fighting back in civil court. In a year-long investigation, the Washington Post looked at 59 officers charged criminally after fatally shooting someone while on duty. Only 11 of the 59 officers were convicted and served time. But when 46 families of those killed by police filed lawsuits, 32 received monetary awards. Settlements varied widely, ranging from $7,500 to $8.5 million, and the median settlement was $1.2 million. Whether the officer was convicted in a criminal court did not seem to be a major factor in the outcomes of the civil cases. SeePeople Shot Dead by Police in 2015, Wash. Post, http://tinyurl.com/pqckdux.

Despite these large civil payouts, police militarization continued to build unabated in black and brown communities. It did so fairly quietly—until 2014, when the world’s eyes turned to Ferguson, Missouri.

The images coming out of the St. Louis area went worldwide, and they were troubling: officers in tactical gear pointing assault rifles at unarmed protesters exercising their First Amendment rights; armored vehicles made to withstand roadside bombs rumbling down city streets while helicopters whirred overhead.

The spotlight, long overdue, was finally shining on the militarization of American police. The myriad problems with the city’s law enforcement were detailed in a Justice Department report, which called for a complete overhaul of Ferguson’s police and courts. When the city council rejected these plans, citing cost, the Justice Department announced it would sue to force the changes. “There is no cost for constitutional policing,” noted Attorney General Loretta Lynch.

How Do We Scale Down the Battle-Ready Stance of U.S. Police Departments?

In its War Comes Home report, the ACLU notes that any reforms must be systemic. “[T]he problems of overly aggressive policing are cultural and cannot be solved by merely identifying a few ‘bad apples’ or dismissing the problem as a few isolated incidents,” it concludes.

Every level of government has had a hand in the problem. But the feds should take the lead in reining in funding programs that serve as carrots for local police departments to amass tactical equipment and engage in battlefield tactics. The federal government holds the purse strings, notes the ACLU, and “easing the flow of federal funds and military-grade equipment into states and localities would have a significant impact on the overuse of hyper-aggressive tactics and military-grade tools in local communities.”

State and local legislatures should also impose restraints on the use of SWAT deployments, limiting them to true high-risk emergencies like hostage situations and active shooter scenarios. “SWAT teams should never be deployed based solely on probable cause to believe drugs are present, even if they have a warrant to search a home,” the ACLU report concludes. “In addition, SWAT teams should not equate the suspected presence of drugs with a threat of violence.”

In other words, the SWAT team should only be involved in serving a warrant if police can demonstrate that officers face imminent danger. And those making that determination should keep in mind that the presence of a highly armed, militarized unit often ratchets up the possibility of violent confrontation.

The report also called for local police forces to form internal policies calling for restraints on use of SWAT and to “avoid all training programs that encourage a ‘warrior’ mindset.”

Very recently, there have been signs that our 40-year love affair with militarization is receding as a handful of cities from Seattle to New York implement “de-escalation” training. See Timothy Williams, Long Taught to Use Force, Police Warily Learn to De-Escalate, N.Y. Times, June 27, 2015, The training runs contrary to the notion of using brute force to gain submission. Officers making traffic stops or approaching citizens on the street take care not to appear menacing. Staring someone down or approaching with one hand on a pistol, as you might imagine, does not engender trust—a key aspect of successful modern policing.

De-escalation has long been a regular part of academy training. But as police militarization increased, the emphasis on avoiding confrontation ebbed. A Police Executive Research Forum study of 281 police departments found that the average rookie officer received 58 hours of firearms training, 49 hours of defensive tactical training, and only eight hours of de-escalation training.

One can only guess if de-escalation would have saved the life of Mario Woods, one in a recent string of San Franciscans fatally shot by police. Woods, shuffling slowly with a knife in his hands, ignored police orders to drop the weapon following a non-fatal stabbing on December 2, 2015. The 26-year-old was shot more than 20 times by officers. The barrage of gunfire, the screams of schoolchildren watching from a city bus, and Woods’s death were all captured on cell phone video. The incident prompted protests, a federal investigation, and calls for the city’s police chief to resign. After San Francisco police fatally shot a 45-year-old homeless man in April and an unarmed woman in May, the police chief did resign.

Incidents like this are sadly common across the country, even as European countries have found ways to use non-deadly force in situations where, legally, deadly force could be utilized. Last year, 1,134 people died at the hands of U.S. law enforcement officers, according to a Guardian study. Young black men were nine times more likely than other Americans to be killed.

Our police are militarized to a degree that shocks the rest of the world. And that militarization is a symptom of a larger problem—police viewing black and brown citizens as enemy insurgents, officers entering communities of color as if they were hostile territory.

But Americans, at long last, may be fed up. A recent Reason-Rupe poll found 58 percent of respondents believed that militarization—including drones, military weapons, and armored vehicles by local police—had already gone “too far.” They are also reclaiming their privacy in the face of secretive surveillance devices known as Stingrays, which track citizens’ location through their cell phone and intercept their calls and text messages. A handful of states (including Minnesota, Utah, Virginia, and Washington) now require police to obtain a warrant before deploying a Stingray.

Conclusion

Every war—including those on drugs or terror—has collateral damage. This military strategy for eradicating crime has resulted in thousands of Americans losing their lives and millions more losing their liberties and futures. It’s time to end the war on our own citizens, and remember the oath to serve and protect.