Rise of the Warrior Cop – Review Part 2 of 5: Justification and Permission

The public in the past have naively avoided consideration of the fact that the principle difference between a democracy and an totalitarian form of government is not so much in the laws under which they operate as it is in the manner by which the laws are applied.

— Don L. Kooken, Ethics in Police Service. 1957.

In the Part 1 of my review of Radley Balko’s book Rise of the Warrior Cop: The Militarization of America’s Police Forces I called it a horror story, and I discussed the history leading up to the time in the 1960’s and early 1970’s, when everything started to change. The second half of the book discusses those changes, and it has a distinctly different feel to it. It’s less like a horror story and more like one of those extended conclusions to a big-budget movie, filled with so much unrelenting action that it wears you out. That’s not Radley’s fault, though. It’s the dismal record of police militarization.

Radley tells the story in chronological order, weaving together the various trends and influences that changed policing for the worse over the last 45 years. In this review — which is actually starting to feel more like a high-school book report — I’m going to try to unravel the major narrative threads so we can better understand and explain the rise of the warrior cop.

The War On Drugs

As a libertarian who believes that government has far too much power over our lives, I regularly find myself having to listen to Republican blather about how great it was back in the 1980’s when we had a freedom-loving President like Ronald Reagan — “Morning in America” and all that.

Well, I was in high school when Reagan started his first term, so I’ll grant that I wouldn’t have been aware of his record on economic freedom, but freedom is not the first thing that comes to mind when I remember the Reagan era. However, after so many years of people telling me how great he was, I had begun to doubt my memories and wonder if maybe my youthful impression was misleading.

That’s why I am thankful to Radley for writing a chapter in Warrior Cop that discusses the 1980’s and Ronald Reagan, because it reminded me of what an absolute shit that man was when it came to civil liberties.

William French set the tone for the Reagan administration early on. In one of the first cabinet meetings, the new attorney general declared, “The Justice Department is not a domestic agency. It is the internal arm of the national defense.”

For the first time, the FBI was brought into the War on Drugs — something that J. Edgar Hoover had fought when he headed the FBI out of concern that it would lead to corruption. And Reagan’s Drug Czar, Carlton Turner, really put the czar into the job, handling drug use less as a health problem requiring treatment and more as a moral issue best countered with punishment. He kicked the psychiatrists out of the anti-drug business and issued an edict preventing government employees from talking about methadone treatments for addicts. Ronald Reagan also put a stop to the talk of marijuana legalization that had been floated during the Carter years.

As for that whole “small government” thing Reagan supposedly stood for…

….Reagan called for expanding the list of crimes for which judges could deny bail, revoking Miranda and the Exclusionary Rule, a major new role for the military in fighting the drug war, an overhaul of the federal criminal code to include dozens of new laws, and in general a massive expansion of the powers and authority afforded to police and prosecutors. Without missing a beat, he then explained that America’s crime problem was not only a moral problem, but a problem inextricably linked to . . . the expansion of government.

A tendency to downplay the permanent moral values has helped make crime the enormous problem that it is today, one that this administration has, as I’ve told you, made one of its top domestic priorities. But it has occurred to me that the root causes of our other major domestic problem, the growth of government and the decay of the economy, can be traced to many of the same sources of the crime problem. This is because the same utopian presumptions about human nature that hinder the swift administration of justice have also helped fuel the expansion of government.

Conservatives had always held the somewhat contradictory position that government can’t be trusted in any area of society except when it comes to the power to arrest, detain, imprison, and execute people. But Reagan didn’t dance around the contradiction, he embraced it. He blamed crime on big government— and in the same breath demanded that the government be given significantly more power to fight it.

That, ladies and gentleman, is the Reagan era the way I remember it.

Reagan was succeeded by his Vice President, George H. W. Bush, who appointed perpetual moral scold William Bennett (still scolding, last I checked) to the Drug Czar’s office, and Bennett continued the official insistence that drug use was not a health problem but a moral problem. Under Bush and Bennett, drug treatment programs were stripped of funding, while additional money was sought for law enforcement and prison construction.

By grounding the War On Drugs in moral justification, Bennett turned it into a holy war. And as we’re all aware, holy wars require beheadings. No, really:

Later he told Larry King that he’d be up for beheading drug dealers. He conceded that doing so might be “legally difficult,” but said that, “morally, I have no problem with it.”

(I remember when Bennett made that remark. I had friends who did drugs — pot, cocaine, LSD, and amphetamines that I was aware of — and I certainly didn’t think that any of them deserved to be punished for it, but it wasn’t until the Bush/Bennett years that I began to accept the parallels between the War on Drugs and prohibition and realize that we as a nation were making the same mistakes all over again. In this way, the Bush/Bennett drug policies were responsible for starting me down the road to libertarianism.)

When Bill Clinton was elected President, many of us who opposed the War on Drugs were hoping for improvements. Democrats had traditionally been more supportive of civil liberties through the 1960’s and 1970’s, and Clinton had admitted to some drug use (his infamous “didn’t inhale” comment). According to Radley, Clinton did tone down the anti-drug rhetoric, but as we’ve all have learned by now, what Clinton says and what Clinton does are completely different things. The War On Drugs got quieter, but it continued grinding up lives at full speed.

Clinton was also responsible for one policy in particular that not only encouraged paramilitary raids on low-level offenders— even users— but by its very nature also directed such raids only at the poor…

The home the police had raided was public housing. Under the Clinton administration’s new “one strike and you’re out” policy, any drug offense— even a misdemeanor—committed in public housing supported by federal funding was grounds for eviction. The policy applied even if the drug offense was committed by someone who didn’t live in the home or was committed without the tenant’s knowledge.

This was also the start of the legalized medical marijuana era, which the DEA opposed by continuing to raid medical marijuana production and distribution sites. In a particularly totalitarian move, the DEA focused its attention on advocates for medical marijuana, using brutal raids to send a message.

(My own opposition to the War on Drugs had by this time lead me to the wonderful book Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in Our Free Country by Peter McWilliams. It was a stirring call to stop punishing people for consensual and victimless crimes such as drug use. By the time it was published, McWilliams was very sick with AIDS and cancer, and he used marijuana to alleviate the nausea from treatment. He was one of the people the DEA swept up in its attack on medical marijuana advocates. While out on $250,000 bond for sentencing, and refraining from using marijuana as a condition of the bond secured by his mother’s house, he vomited and choked to death.)

When George W. Bush took over the Oval Office, he continued Clinton’s war on drugs — including busting locally-legal medical marijuana users and suppliers, despite his claim to Republican federalist leanings — and brought back the moralistic rhetoric, appointing William Bennett protege John Walters as the new Drug Czar.

Then, after the terrorist attacks of 9/11, the Bush administration began trying to link the new fear of terror to the time-tested bogeyman of drugs, including a deceptive DEA touring exhibit that tried to link drugs and 9/11 in visitors’ minds. The most infamous example of this propaganda was this video:

http://youtu.be/_gw0y-KfGNk

The campaign was not only shamefully exploitative, it was simply false. The claim that casual drug users supported terrorism was dubious at best. To the extent that black market drug purchases in the United States did support terror groups, it was the “black market” part that made it possible. Nearly all of the terror attacks listed on the DEA’s website at the time had been attacks by drug-smuggling groups related to the drug trade, and nearly all had taken place in Latin America and Mexico.

This period also marked the rise of Ecstasy as a street drug, followed almost immediately by the rise of crackdowns on the new cultural phenomenon of rave parties. Radley reminds us that then-Senator Joe Biden has a lot to answer for in the war on drugs:

…Sen. Joe Biden of Delaware seemed particularly obsessed with rave parties. Politicians seemed to think that any party with techno music, pulsing lights, and neon inevitably degenerated into underage kids getting high on Ecstasy and engaging in mass orgies. In the summer of 2002, Biden was pushing his RAVE Act, an absurdly broad law that would have made venue and club owners liable for running a drug operation if they merely sold the “ paraphernalia” common to parties where people took Ecstasy— accessories like bottled water and glow sticks.

Among other things, this meant that any attempt by club owners to mitigate the damage of drug use — such as bottled water and air-conditioned rooms to cool down overheated dancers, or even having paramedics standing by — was used as evidence that the club owners knew drugs were present, which was enough for police to label it a drug operation.

Barack Obama was Clinton all over again, but at least this time we knew what to expect. Even though it was well established that Obama used drugs as a young man, few of us were expecting him to dial down the War on Drugs. But we did have some hope that he wouldn’t go out of his way to make it worse. As it turns out, even that was too much to hope for, as Obama stepped up federal raids on medical marijuana dispensaries and increased federal anti-drug funding.

(As I write this, there are rumblings and Important Memos indicating that maybe, four years into his term, with two states flat-out legalizing pot in the last election, that the Obama administration is finally dialing down some parts of the war on drugs a little bit.)

Erosion of the Castle Doctrine

If the War on Drugs provided the justification for increasing police militarization, erosion of the Castle Doctrine was providing permission.

The Castle Doctrine is the idea that “a man’s home is his castle” which traditionally meant that agents of the government need permission to enter or else must have an extraordinary reason to enter, and must do so in a way that protects the occupants’ safety and comfort. Typically, this meant knocking on the door and waiting for the occupants to answer, then explaining the reason for needing to enter and allowing the occupants to peacefully permit entry.

Since there is no right without a remedy, the effectiveness of the Castle Doctrine is protected by the Exclusionary Rule: If police enter a home without permission and without observing the procedural and practical niceties, any evidence they gather was supposed to be unusable in a criminal trial. Thus the castle walls of our homes are no stronger than the Exclusionary Rule’s support in the courts.

Radley lists a number of court cases that have eroded that support over the last 30 years, beginning with Illinois v. Gates, in which the Supreme Court weakened the test for reliability of an informant when issuing a search warrant. Next year, in US v. Leon, police got a “good faith” exception to search warrants, allowing evidence from an illegal search to come in if the police were acting in good faith. In Massachusetts v. Sheppard, the Court allowed evidence from a defective warrant. In Segura v. United States, the Court allowed evidence to come in after the police broke in without a warrant, but waited for a warrant before they started their search. And in Nix v. Williams, the court ruled that illegally-discovered evidence could still be used if the police could show that it would have been discovered anyway.

In 1995’s Wilson v. Arkansas decision, the court officially recognize two of the most common exceptions to the knock-and-announce rule, destruction of evidence and officer safety, which continue to feature in almost every “dynamic entry” search today. Richards v. Wisconsin solidified those rules for drug searches and confirmed that officers could make decisions about exigent circumstances on the scene.

After Richards, state courts fell back on the “particularity approach” to determine when a no-knock raid was or wasn’t merited. Judges determined whether a suspect was likely to destroy evidence on a case-by-case basis. There was no reliable, predictable standard. As we’ve seen, in the absence of such guidelines, and as judges were increasingly swamped with drug cases and drug warrants, the default position tended to defer to the judgment of police, even when the language in search warrant affidavits began to look like boilerplate.

Study after study, in cities such as New York, Chicago, and Denver, showed that as the volume of drug enforcement operations increased tremendously during the 1980’s, the police, prosecutors, and judges started taking shortcuts that eroded oversight of the search warrant process. In the effort to keep the the drug war moving, the mechanisms for protecting the castle doctrine were wearing away. In Hudson v. Michigan the Supreme Court essentially approved of these shortcuts by ruling that if the searches were ruled illegal, the evidence could still be used at trial, despite the Exclusionary Rule. The ruling cited studies that showed police had become more professional, ignoring the parts of the studies which attributed this new professionalism to the Exclusionary Rule.

In later years, police began to use drug raid tactics to address other crimes, such as illegal poker parties, underage drinking, people getting too frisky at night clubs, and barber-shop licensing. In some of these cases, the police claimed these raids were part of the licensing enforcement process and therefore did not require warrants at all.

In recent years, troublemakers have noticed the ease and lack of investigation with which the police will launch SWAT-style raids, and they’ve been calling 911 to ‘prank’ people by sending SWAT teams to their door, often with the hope of frightening or killing political enemies.

But police don’t need sociopathic pranksters to find a reason to break down doors. They have plenty of incentives of their own, as I’ll discuss in Part 3.