Rise of the Warrior Cop

ACKNOWLEDGMENTS

I’ve always felt that I’d never officially feel like a writer until I could see a book I’d written sitting on my bookshelf. So I owe a lot of thanks to the people who have helped make that happen.

First, of course, thank you to my family and friends who have supported and encouraged me over the years. Thanks also to my agent, Howard Yoon, and my editor at PublicAffairs, Brandon Proia, for getting this specific book into print. I should also acknowledge Peter Kraska, whose scholarly research on SWAT teams has provided the empirical data to document this trend. Police militarization has largely been fueled by the drug war, so this book also owes a debt to Dan Baum, whose meticulously reported Smoke and Mirrors is the be-all, end-all history of the drug war through the 1990s. Thanks also to Samuel Walker, Norm Stamper, Tom Angell, Victoria Dunham, Killian Lapeyre, Jessica Greene, Drew Johnson, and Dan Wang, who contributed to this book with research, comments, referrals, and/or suggestions.

Other thanks go to Robin Wallace and Nick Schulz, the first two editors to publish me regularly. Thanks to P. J. Doland for hosting my blog for ten years—where I first reported many of the incidents you’ll read about in this book. Thanks to Ed Crane and David Boaz at the Cato Institute, who published my white paper on SWAT teams, gave me my first full-time job as a writer, and provided a terrific platform from which to write about this issue. Thanks also to current and former Cato folk Susan Chamberlin, Tim Lynch, and Gene Healy. Thanks to Nick Gillespie, who gave me my first journalism job at Reason magazine, and to Matt Welch, David Nott, Jesse Walker, and my other former colleagues at Reason. Thanks especially to Jacob Sullum, whose editing made me a better writer.

Other media/Internet/journalism people to whom I’m grateful for supporting, promoting, and publishing my work over the years: Glenn Reynolds, Andrew Sullivan, Ryan Grim, Arianna Huffington, Mark Frauenfelder, John Stossel, John Tierney, Ed Brayton, Emily Bazelon, and Dahlia Lithwick.

Finally, a group of people I’d like to personally thank for a variety of different reasons, personal and professional: Bobbie Murphy, Alyona Minkovski, David Pfaff, Jessie Creel, Liliana Segura, Stacie Moats, Courtney Knapp, Marta Rose, Kate Klonick, David Boeyink, and my dad, Terry Balko.

INTRODUCTION

                  There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.

—JAMES MADISON

Are cops constitutional?

That may seem like an odd question—perhaps even a little nutty. Police forces have been part of the American criminal justice system since an eight-man department was established in Boston 175 years ago and the first large department was created seven years later in New York City. There has never been a serious constitutional challenge to the general authority of police or to the establishment of police forces, sheriff’s departments, or other law enforcement agencies, and it’s unlikely there ever would be. Any federal court would undoubtedly have little patience for such a challenge. And any hypothetical world where police were ruled unconstitutional would descend into chaos, probably rather quickly.

But in a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question.¹ Roots, a fairly radical libertarian, believes that the US Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers, and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the Framers, professional police officers were unknown,” Roots writes.

The general public had broad law enforcement powers, and only the executive functions of the law (e.g. the execution of writs, warrants, and orders) were performed by constables or sheriff (who might call upon the community for assistance). Initiation and investigation of criminal cases was nearly the exclusive province of private persons. . . . The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Founders.²

Roots’s argument may not be practical, but it’s certainly provocative. On at least one point, most criminologists agree with him: no one can say for sure whether the Founders would have approved of modern policing, but it’s relatively certain that they wouldn’t have recognized it. Criminologist and historian Samuel Walker writes in his book Popular Justice that in colonial America “most of the modern institutions” of today’s criminal justice system, “the uniformed police, prisons, probation, parole . . . did not exist at all.” The colonies did have appointed sheriffs and constables, and some also had marshals, but the duties associated with those jobs were largely administrative. Most were not salaried positions; instead, they received fees for tasks like serving subpoenas and collecting taxes. Since there were no fees associated with enforcing the criminal laws, for most sheriffs and constables that task was a low priority. Sheriffs did oversee the jails, but jails were primarily used to hold defendants until trial. Incarceration as punishment was rare.³

Law enforcement in the eighteenth century was mostly a private affair. Community mores, social stigma, and shaming were the most important ways of maintaining order. Crime victims could bring their complaints to a grand jury, a panel of private citizens who had the power to indict. But the victim or his proxy was the party to initiate the charges. Professional full-time prosecutors didn’t exist.⁴

Under this system, enforcement of the laws was a universal duty. Every male citizen had a civic responsibility to serve on a watch, act as a constable, serve on a grand jury, or join a posse when necessary to apprehend a dangerous criminal. The word police wasn’t used as a noun. It was a verb, meaning “to watch over or monitor the public health and safety.”⁵

This isn’t to say that the colonial era’s more individualized, private methods of law enforcement would work today. As American towns grew from close-knit communities of people of similar ethnicities, with shared traditions, values, and religion, to cities whose diverse populations of immigrants had none of that in common, centralized police forces emerged to preserve order and enforce a common set of laws. Once neighbors stopped speaking the same language and worshiping in the same buildings, shunning and social stigmatization lost their effectiveness.

Even so, Roots’s question is a useful starting point for this book because it shows just how far we have come. The Founders and their contemporaries would probably have seen even the early-nineteenth-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington, and Adams were well versed in the history of such armies in Europe, especially in ancient Rome.

If even the earliest attempts at centralized police forces would have alarmed the Founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than one hundred times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire. Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks, and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy Seals or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctor’s offices, bars and restaurants, and head shops, despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.

There’s now a dominant military culture within modern police agencies. Go to one of the many SWAT conferences and SWAT team competitions held throughout the year and you’ll find exhibit halls teeming with military weapons, gear, clothing, and imagery. The vendors at these events know their market. They use war imagery to ply their goods because that’s what makes cops and police departments want to buy them. Many sell the same products to both the military and civilian police agencies. In the 1990s and 2000s, the company Heckler and Koch marketed its MP5 semi-automatic weapon with the slogan “From the Gulf War to the Drug War—Battle Proven.”⁶ Publications like Larry Flynt’s SWAT magazine feature ads that emphasize knocking heads and kicking ass, and print articles with headlines like “Go for the Throat” and “Warrior Mindset.”

There’s been nothing secretive about this transformation, but because it’s been unfolding over several decades, we don’t seem to have noticed. On February 11, 2010, in Columbia, Missouri, the police department’s SWAT team served a drug warrant at the home of Jonathan Whitworth, his wife, and their seven-year-old-son. Police claimed that eight days earlier they had received a tip from a confidential informant that Whitworth had a large supply of marijuana in his home. They then conducted a trash pull, which turned up marijuana “residue” in the family’s garbage. That was the basis for a violent, nighttime, forced-entry raid on the couple’s home. The cops stormed in screaming, swearing, and firing their weapons, and within seconds of breaking down the door they intentionally shot and killed one of the family’s dogs, a pit bull. At least one bullet ricocheted and struck the family’s pet corgi. The wounded dogs whimpered in agony. Upon learning that the police had killed one of his pets, Whitworth burst into tears.

The Columbia Police Department SWAT team recorded many of its drug raids for training purposes, including this one. After battling with the police over its release, a local newspaper was finally able to get the video through state open records laws and posted it to the Internet. It quickly went viral, climbing to over one million YouTube views within a week. People were outraged. The Columbia Police Department was swamped with phone calls and emails, and its officers were condemned, cursed, and scolded. Some even received death threats.

The video also made national headlines. On Fox News, Bill O’Reilly discussed it with newspaper columnist and pundit Charles Krauthammer, who assured O’Reilly’s audience that botched raids like the one in the video were unusual; he warned viewers not to judge the war on drugs based on the images coming out of Columbia. Krauthammer was wrong. This was not a “botched” raid. In fact, the only thing unusual about the raid was that it was recorded. Everything else—from the relatively little evidence to the lack of a corroborating investigation, the killing of the dog, the fact that the raid was for nothing more than pot, the police misfiring, and their unawareness that a child was in the home—was fairly standard. The police raided the house they intended to raid, and they even found some pot. The problem for them was that possession of small amounts of pot in Columbia had been decriminalized. They did charge Whitworth with possession of drug paraphernalia for the pipe they found near the marijuana—a $300 fine.

The reaction to the video was fascinating—and perhaps encouraging—because, again, the raid itself was indistinguishable from the tens of thousands of similar raids conducted each year in America. It was as if the country—or at least the Internet generation—was for the first time seeing firsthand, on-the-ground footage of the way the drug war is fought every day. And they found it terrifying.

Most Americans still believe we live in a free society and revere its core values. These principles are pretty well known: freedom of speech, religion, and the press; the right to a fair trial; representative democracy; equality before the law; and so on. These aren’t principles we hold sacred because they’re enshrined in the Constitution, or because they were cherished by the Founders. These principles were enshrined in the Constitution and cherished by the Framers precisely because they’re indispensable to a free society. This book answers the question: How did we get here? How did we evolve from a country whose founding statesmen were adamant about the dangers of armed, standing government forces—a country that enshrined the Fourth Amendment in the Bill of Rights and revered and protected the age-old notion that the home is a place of privacy and sanctuary—to a country where it has become acceptable for armed government agents dressed in battle garb to storm private homes in the middle of the night—not to apprehend violent fugitives or thwart terrorist attacks, but to enforce laws against nonviolent, consensual activities? How did a country pushed into a revolution by protest and political speech become one where protests are met with flash grenades, pepper spray, and platoons of riot teams dressed like Robocops? How did we go from a system in which laws were enforced by the citizens, often with noncoercive methods, to one in which order is preserved by armed government agents too often conditioned to see streets and neighborhoods as battlefields and the citizens they serve as the enemy?

Before we begin, a few organizational notes are in order. First, this is not an “anti-cop” book. Although it includes plenty of anecdotes about bad cops, there are plenty of good cops. Some of them are interviewed in this book. The fact is that we need cops, and there are limited situations in which we need SWAT teams. If anything, this is an anti-politician book. Bad cops are the product of bad policy. And policy is ultimately made by politicians. A bad system loaded with bad incentives will unfailingly produce bad cops. The good ones will never enter the field in the first place, or they will become frustrated and leave police work, or they’ll simply turn bad. At best, they’ll have unrewarding, unfulfilling jobs. This book explores the consequences of having cops who are too angry and too eager to kick down doors and who approach their jobs with entirely the wrong mind-set, but with an eye toward identifying and changing the policies that allow such people to become cops in the first place—and that allow them to flourish in police work.

Second, some of this book is the product of historical research, some of it is original reporting done exclusively for the book, and some of it is original reporting I’ve done for other publications. Many of the passages taken from reported pieces I’ve already published are reprinted here verbatim, or nearly verbatim.

Finally, many of the anecdotes mentioned in the book happened years or decades ago. Sometimes there was a flurry of initial coverage of an incident, but then no coverage of the resolution. I’ve tried to find out how all of these incidents were resolved, but that wasn’t always possible. For example, an anecdote may have come from a complaint in a lawsuit against a police department that was resolved with a closed settlement, which means the police account of the incident was never revealed. Or a police department may have refused to disclose information about an internal investigation, leaving only press accounts of an incident. In cases like these, I’ve indicated the source of the accusations to let you know that they’re one-sided narratives.

This story of police militarization in America begins with lessons from ancient Rome, then moves quickly through the Dark and Middle Ages into the origins of modern policing. We examine the foundations of the American experiment laid down during the colonial period and the American Revolution—the right to privacy, the Castle Doctrine, and the demilitarization of free societies—then look at the emergence of the modern, centralized police department in the early nineteenth century. After quickly passing through the Progressive Era, the professionalization movement, and alcohol prohibition, we come to the real beginning of the story of modern police militarization: the social upheaval, civil unrest, and culture wars of the 1960s. At that point the book becomes a more focused narrative. We follow the militarization trend through Nixon’s rhetorical wars on crime and drugs in the 1970s, Reagan’s all-too-literal drug war of the 1980s, and the massive expansion of SWAT teams, the proliferation of military gear, and the federalization of policing in the 1990s. The final chronological chapter looks at how the war on terrorism has accelerated the militarization of the police, how SWAT teams and the paramilitary approach to policing have moved beyond the wars on drugs and terror, and how frighteningly willing the government has become to use this sort of force to make a political statement. The book ends with a chapter on reforms and recommendations on how to roll back the militarization of policing in America; and whether any meaningful reform is still possible.

CHAPTER 1

FROM ROME TO WRITS

                  Quis custodiet ipsos custodes? (Who will watch the watchers?)

—JUVENAL, FIRST-CENTURY ROMAN POET

Given that most of the American Founders were students of the Enlightenment and its revival of classical learning, most of them looked fondly on the Roman republic and drew lessons from the rise and fall of the Roman empire. Alexander Hamilton, James Madison, and John Jay, for example, wrote the Federalist Papers under the pen name “Publius” in honor of the first consul of the Roman republic, and one of the revolutionaries who overthrew the monarchy. John Adams in particular was a fan of Cicero, who spent much of his public life warning of the dangers of militarism and dictatorship—and was eventually murdered for it. The American forefathers were keenly aware of the price that Rome paid by permitting the military to gain such power in their society, and they generally sought to avoid its mistakes.

It seems fitting then that the world’s first documented, organized police force would have been established in ancient Rome. And the rise of that ancient police force raised many of the same questions about balancing security with liberty that we debate today.

After Julius Caesar was assassinated in 44 BC, Rome fell into chaos as the empire’s powerful factions maneuvered to seize power. Anticipating bloodshed, faction leaders began to pull elite troops from their armies to serve as bodyguards. These guard units came to be called praetorian cohorts, after the praetoria cohors who guarded the tents of Roman generals during war. By the end of the reign of Emperor Augustus, and for the next several centuries, the Praetorian Guard would take on more of the roles we now associate with a conventional police force, including investigating serious crimes, making arrests, providing security during Coliseum games, collecting taxes, spying on suspected revolutionaries, collecting undercover intelligence, and even fighting fires.

During his reign, Augustus established two other policing forces less prestigious than the Praetorians. Around 13 BC he created the cohortes urbanae, or urban cohorts, which he charged with quelling riots and keeping order in the streets. And in AD 6 he created an additional order called the vigiles. First charged exclusively with fighting fires, the vigiles would also later take on police duties and came to serve as Rome’s night watchmen.

Augustus’s Praetorian Guard would eventually become one of the most powerful institutions in Rome. In later years the Guard’s loyalty often determined who would become the next emperor, and its members may have assassinated as many as a dozen Roman emperors and many more potential heirs.

The interesting thing about Augustus’s first police forces is that to implement them he had to navigate some of the same challenges and objections to civic policing that arise today. He had to balance public safety and the maintenance of order by at least appearing to respect civil liberties. More importantly, he had to find ways to assure the Senate and the citizenry that the responsibilities of these bands of order-keeping public servants, all drawn from the Roman army, were distinct from the duties that Romans normally associated with soldiers.

Even in ancient Rome, the public was acutely sensitive to the threat of militarized policing. Prior to Caesar’s march on Rome in 49 BC, soldiers were forbidden to enter the capital as soldiers. There had never been a permanent standing army within the city. It was Caesar’s crossing of the Rubicon, the city’s outer boundary, with his army that triggered the civil war that ended the republic.

After Augustus, the Praetorian Guard became an increasingly powerful force in the upper echelons of Roman power. As conquest and empire became central tenets of Roman society, the day-to-day lives of Romans became infused with militarism. Soldiers and generals began to be held in higher esteem than scholars and statesmen. The Praetorian Guard outgrew its consignment under Augustus to civilian policing and was reconnected with the Roman army. Eventually, the Guard directly interfered with the succession of emperors, sowing further instability. The Praetorian Guard was finally disbanded by Emperor Constantine in AD 312. Its members had made the mistake of backing his opponent. About 1,800 years would pass before the world would see another metropolitan police force as centralized and organized as those that Augustus first established in Rome.

There are also some broader parallels between Rome and the establishment of policing in the modern world. During the Roman republic, disputes were settled between and within families. Criminals were often punished by their own relatives, who faced social pressure to make right by victims and their kin. But under Augustus the state began to take on a much larger role in these traditionally private and provincial affairs. As Rome was transformed from republic to empire, dispute resolution, punishment, and remuneration, which had once been handled privately, fell exclusively to the emperor’s executive power. As we will see, Britain and the early United States went through a similar transition centuries later. In the United States, the colonial-era concerns about standing armies gave way to more immediate problems like crime and rioting as the country moved into the industrial age. Cities turned to centralized power—police agencies reporting to the mayor—to impose law and order.¹

IN THE YEARS THAT FOLLOWED ROME’S FALL, ORGANIZED policing largely disappeared from Europe. One exception were the few cities in Italy that became hubs of trade and culture. As they grew, cities like Florence and Venice had to contend with urban issues of crime, poverty, and disease. To keep order—which kept the trade flowing—leaders established patrols to protect the property of businesses, tradesmen, and manufacturers and to enforce curfews during outbreaks.

By the Middle Ages, a nationalized police force had emerged in France, though more as an effort to protect the monarchy from revolt than to protect the citizens from crime. Maintaining the existing order was the only priority; civil liberties were of little concern.

The English tradition was different. Because of its isolation, England was relatively more stable than continental Europe during the Dark and Middle Ages. It didn’t face the constant threat of revolution. Ruling regimes in other parts of Europe had to maintain order by suppressing dissent and keeping the public from posing a threat to them. In Britain, preserving order meant protecting lives, rights, and property from thieves, vandals, and murderers. Consequently, the English benefited from an orientation toward local rather than centralized policing. Before the Norman Conquest of 1066, Britain was organized into tythings, groups of about ten families in a given geographical area who were expected to maintain peace and order on their land. If a member of a tything committed a crime, the group was expected to turn the transgressor over to the king, or the tything would be punished as a group. Groups of ten tythings were then grouped into larger units called shires. To keep order in the shires, the Crown appointed a representative called a reeve, a position usually filled by one of the shire’s own residents. The position came to be called the shire reeve, the source of our modern word sheriff. This mix of incentives for tythings enabled them to maintain order with a balance of liberty and accountability.

The English system also benefited from its adherence to common law rather than Roman law. Because the objective of common law is dispute resolution rather than enforcing the will of the sovereign, it offers more protection of individual rights. English citizens’ ability to sue law enforcers who violated their rights was unheard of in countries with centralized policing forces. English trials were also governed by set rules of procedure—again, in stark contrast to the rest of Europe.