By EUGENE P. RAMIREZ
The recent news coverage of police activity in limited but sensational instances has turned the country’s eyes toward police practices. In particular, the country has a growing fear of “police militarization.” Photographs and video clips of officers in riot gear addressing seemingly peaceful protesters are widely disseminated. They have promulgated the nation’s concern over the growing arsenal of local and state law enforcement. The August 2014 events in Ferguson, Missouri, have focused the attention of people on the relation- ship between the military and law enforcement.
The images from Ferguson are not what people should have in mind when they think of their local police. One video from Ferguson shows a police officer staring down protesters while exclaiming, “Bring it you fucking animals! Bring it!” That’s a text book example of the wrong message at the wrong time. Law enforcement needs to do a better job, educating the public on what it does and why it uses certain equipment.
The public and politicians seem to forget the images from the North Hollywood bank shootout of February 28, 1997. That was a clear example of criminals having superior firepower and better body armor than the LAPD officers who responded to the call for help. The Columbine tragedy of April 20, 1999, also demonstrated that law enforcement could be outgunned by high school students.
Law enforcement, as demanded by the public, has to prepare to deal with well-armed suspects. The question now arises, has law enforcement gone too far?
Fueled by the events in Ferguson, we have heard from law makers expressing concern over the 1033 program that equips municipal law enforcement with surplus military gear. President Obama recently said, at a White House press conference, “I think it’s probably useful for us to review how the funding has gone, how local law enforcement has used grant dollars, to make sure that what they’re purchasing is stuff that they actually need, because there is a big difference between our military and our local law enforcement and we don’t want those lines blurred. And I think that here will be some bipartisan interest in re-examining some of those programs.”
President Obama is correct. Unfortunately, there is growing bipartisan support.
Republican Congressman Hank Johnson, a mem- ber of the House Armed Services Committee, said, “Militarizing America’s Main Streets won’t make us any safer, just more fearful and more reticent.”
Democratic Senator Claire McCaskill singled out a one-man police department in Michigan that received 13 assault weapons through government programs. “Giving military-grade weapons to every police force and every officer comes with costs,” McCaskill said. “Officers dressed in military fatigues will not be viewed as partners in any community.”
Republican/Libertarian Senator Rand Paul criticized the 14,000 bayonets the Pentagon distributed to local law enforcement across the country for reasons he “couldn’t fathom.”
Republican Tom Coburn added, “It’s hard to see a difference between the militarized and increasingly federalized police force we see in towns across America today and the force that (founding father James) Madison had in mind when he said ‘a standing military force with an overgrown executive will not long be a safe companion to liberty.’” “We’ve stepped across the line and actually have created some problems that wouldn’t have been there otherwise,” said Coburn, a longtime critic of the law enforcement grant programs.
It seems cutting funds and support for local law enforcement may be the one topic that our current politicians are willing to tackle. The questions then become: “What is the actual concern?” What is the police militarization that needs to be stopped?
Radley Balko is a highly publicized, longtime critic of police practices. His opinions are helping the media shape their concern of the main issues: equipment, tactics, training, psyche and mission creep.
Balko and other police militarization critics target several topics of concern. At the top of the list are equipment, tactics, training, psyche, and mission creep.
EQUIPMENT
The gear and equipment that today’s law enforcement officers use for high risk situations affects the national dialogue on police militarization. The image of an officer in camouflage, boots, helmet, and bulletproof vest should make people feel safe, but instead many communities are scared. It is not just the uniforms that concern people. The use of military grade weapons and armored vehicles adds to the idea that the police are acting as an army. The general public does not have access to armored vehicles and M16 riffles. The general public is not aware that a bullet fired from an M4 is safer than a 9mm because it is less likely to go through walls. The public simply sees a big and powerful gun that they do not have. The challenge, therefore, is to change the image for the public so they can see the truth … officers who put their lives on the line to serve and protect, often times paying the ultimate sacrifice.
How do we change the minds of the public? The answer sounds simple, but the implementation is going to be difficult.
Law enforcement needs to engage in a strategy to educate its local communities on what law enforcement wears and why it is reasonable to use the specialized equipment that is being seen. Law enforcement needs to reach out to its community stakeholders and demonstrate the specialized equipment is being used for legitimate civilian purposes and not for a military campaign. Regular discussions should be held with community leaders about how the local law enforcement agency is dealing with crime and why it is using the equipment it does. Law enforcement, in short, must de-mystify what it does in order to regain its credibility with the public. There is a disconnect right now between some communities and their local law enforcement agency that needs to be fixed sooner rather than later.
TACTICS
Law enforcement needs to recognize and uphold the Fourth Amendment proscription against unreasonable searches and seizures, especially when entering a residence. The media is quick to denounce search warrants served at residences, especially if violence ensues, and quotes from Balko and his book on the entry into residences are often part of the reporting.
“It was the deployment of British soldiers to colonial cities strictly for the purpose of enforcing the law that set long-smoldering hostilities aflame. Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. The policy was reminiscent of today’s civil asset forfeiture laws, which allow police to seize and keep for their departments’ cash, cars, luxury goods, and even homes, often under only the thinnest allegation of criminality.”
Not much has been said, however, about police using actual military tactics. The comments that have been made are about SWAT “raids” and roving patrols for high crime areas. As for roving patrols, well, that’s what police officers do. To Balko and his ilk, just using a SWAT team to serve warrants embodies police militarization. Breaching a structure and using flash bangs makes the process even more militant. There have been instances were SWAT teams have served warrants and in- nocent bystanders have been injured or killed. Critics of law enforcement high-light the outlier incidents and speak of them as if they are the norm. Of course, the vast majority of warrants served by SWAT teams are carried out to actually minimize danger to the public. Law enforcement needs to explain why they use diversionary devices and why protective equipment is needed.
Balko claims that breaching a home to serve a search warrant, after only a few hours of surveillance, has become standard operating procedure. His main criticism is that the use of SWAT for narcotics search warrants is dangerous and unnecessary. Balko argues in favor of long surveillance; only making arrests or detentions after suspects leave the premises. “The thrill of the raid may factor into why narcotics cops just don’t consider less volatile means of serving search warrants,” he says. “The thing is, it’s so much safer to wait the suspect out. Waiting people out is just so much better. You’ve done your investigation, so you know their routine. So you wait until the guy leaves, and you do a routine traffic stop and you arrest him. That’s the safest way to do it. But you have to understand that a lot of these cops are meatheads. They think this stuff is cool. And they get hooked on that jolt of energy they get during a raid.”
Unfortunately, people are buying into Balko’s thoughts. Law enforcement needs to think strategically on how and when a tactical team should be used. Training standards need to be rigorously enforced and proper policies and procedures need to be implemented and updated on a regular basis.
TRAINING
The training issue actually cuts both ways. On the one hand, it seems police are using military tactics, being trained by military personnel, and are comprised of too many retired military members. On the other hand, police officers are training members of the military on building entries and related tasks. The public needs to be educated on the vast differences between the military and law enforcement. The military operates under the Law of War and rules of engagement, which can change depending on the circumstances. Law enforcement operates under a use of force policy, which is governed by the Fourth Amendment of the United States Constitution.
The military can call in airstrikes, use heavy artillery and deploy hand grenades. Law enforcement cannot do the same. Much of the military surplus equipment being used by law enforcement has a decidedly civilian use. For example, law enforcement is using grenade launchers to deploy 40mm tear gas canisters. Armored vehicles are not tanks and should not be referred to as such. Kevlar helmets and vests are lifesaving items of equipment. Even criminal suspects are known to wear body armor.
PSYCHE
The public is not only worried about the gear the officers are using. The public is also worried about what the camouflage, M16s, and armored vehicles are doing to the mindset of their local officers. The critics point to police recruitment videos as proof of the dangers of the military mindset.
On HBO’s “Last Week Tonight” host Jon Oliver recently pointed to a police recruitment video from a small town in Georgia. The video depicted a tank storming around to a heavy metal song called “Die Mother Fucker Die.” Many other videos also show SWAT teams kicking down doors and officers shooting big guns and jumping out of helicopters. Oliver quipped that Ferguson police should “dress for the job they have and not the job they want” to a roar of applause and laughter.
Critics believe that dressing in camo and using M16s makes the officer feel like a soldier. Their criticism follows the false logic that if you dress like an army and think like an army, you will behave like an army. Balko believes officers should take a community approach to law enforcement. He commented, “officers should go to protests thinking of themselves as facilitators of the protest rather than containers.”
The criticism is not without validity. Law enforcement needs to re-think how it portrays itself to the public, and the misuse of social media by law enforcement is not helping to curry favor with the public.
MISSION CREEP
Statistics show a fairly dramatic increase in the use of SWAT since the inception of special units after the Los Angeles riots in the late 1960s. Balko fears that tactical units are being overused for improper purposes. In his book he writes: “Not surprisingly, the proliferation of heavily armed task forces that have little accountability and are rewarded for making lots of busts has resulted in some abuse.”
Balko believes that SWAT raids are becoming the default police activity. He equates more SWAT raids with the rise of a military state.
“In short, police today embody all of the threats the Founders feared were posed by standing armies, plus a few additional ones they couldn’t have anticipated,” he writes.
“This isn’t to say we’re in a police state, a term that’s often misused. Generally speaking, we’re free to travel. We don’t face mass censorship. We still have habeas corpus. And the odds of any single person being victimized by a wrong-door raid, shot or beaten by a cop, or otherwise victimized by militarized police violence are slim to nil. But perhaps we have entered a police state writ small. At the individual level, a police officer’s power and authority over the people he interacts with day to day is near complete. Absent video, if the officer’s account of an incident differs from that of a citizen— even several citizens— his superiors, the courts, and prosecutors will nearly always defer to the officer. If other officers are nearby, there are policies in place—official and unofficial—to encourage them to back one another up. Even if the officer does violate the citizen’s rights, the officer is protected by qualified immunity.”
CONCLUSION
It is politically correct today to denounce law enforcement as being too militarized. Much of the blame belongs to the uneducated press and politicians. Some of the blame, however, belongs to law enforcement itself. There are tactical teams that should not exist. There are teams that lack adequate training and some that are being used incorrectly.
Law enforcement needs to realize that its image is taking a beating and is losing the public relations war. It is time for law enforcement to re-examine itself and fix the problems. It can be done, one small step at a time. For example, “BDUs” are not “battle dress uniforms.” They are “basic duty uniforms.” It is time to separate the military speak from law enforcement. It is time for law enforcement to be law enforcement.
EUGENE P. RAMIREZ
is a founding member of the law firm Manning & Kass, Ellrod, Ramirez, Trester LLP. He serves as an advisor to several public entities on the issues of use of force, canine and SWAT issues and policies and procedures. He is an instructor for the California Association of Tactical Officers (CATO) and for the National Tactical Officers’ Association (NTOA). He is also a member of the CATO board of directors. His email address is epr@manningllp.com
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