Recent protests in the United States have undoubtedly brought to light the excessive use of force by the police, especially towards people of color. The deaths of George Floyd and Ahmaud Arbery among others have forced many to question the causes of police violence, as well as what can be done to stop it. The militarization of the police coupled with a lack of accountability have played a large role in creating the far-reaching immunity granted to many of America’s police officers, but is there a way forward?
A Brief History of the Militarization of the Police
The militarization of the police – the adoption of military weaponry, tactics, or “mindset” – can be traced back to the Prohibition era. However, its implementation seems to have taken place over the past half-century, namely in connection to the war on drugs and terrorism.
On June 17, 1971, President Richard Nixon declared drug abuse “public enemy number one”. Throughout his presidency, Nixon would go on to increase federal funding for drug-control agencies, most notably the Drug Enforcement Administration created in 1973, as well as impose mandatory prison sentencing for drug crimes.
Around the same time, Los Angeles Police Department officer Daryl Gates promoted the idea of a “Special Weapons and Assault Team”, which would later become “Special Weapons and Tactics” or SWAT. A high-profile raid with the Black Panther Party and later with the Symbionese Liberation Army helped to “solidify” the role of SWAT teams within the police force.
Today, 90% of police forces in cities with a population of 50,000 or more claim to have some kind of SWAT unit, as well as 70% of smaller municipalities.
Although SWAT was intended for “high-risk situations” such as barricades, hostages, riots, or terrorist attacks, the “war on drugs” initiated by Nixon and furthered under the Reagan administration ultimately encouraged their intervention in drug arrests. Today, a majority (62%) of SWAT deployments are used in drug searches – disproportionally against people of color – many of which are “no-knock warrants”, such as the one used most recently in the killing of Breonna Taylor.
The number of SWAT teams in the United States has exploded since the 1970s, partly due to the 1033 program. Today, 90% of police forces in cities with a population of 50,000 or more claim to have some kind of SWAT unit, as well as 70% of smaller municipalities.
What is the 1033 Program?
Under the 1033 program, which was enacted in 1996 and continues to this day, the US Secretary of Defense is allowed to transfer military equipment – ranging from computers to machine guns to tanks – from the Department of Defense to federal, state, and local law enforcement agencies.
The program also corresponds to an increase in US military intervention, also known as President Bush’s “war on terror”, that partly resulted in a more “militaristic” mindset shift, both at home and abroad. The Department of Homeland Security, created in 2003 following the September 11 attacks, was involved for example in the dispersal of $34 billion in grants to US police departments, funds that were later used to buy military-grade equipment.
Furthermore, it is estimated that one in five police officers nationwide has military experience, with veterans tending to receive preferential treatment in hiring. Such can contribute to a rise in “warrior” mentality, with some of these vets-turned-cops seemingly “blurring the lines” between the appropriate amount of force in military combat versus civilian crime.
It is estimated that roughly $7.2 billion in military equipment has been transferred to national law enforcement agencies since 1997.
Not only have the wars in Iraq and Afghanistan among others led to an increase in excessive force through this “warrior” mentality, but they have provided the basis for the increase in military-grade weapons under the 1033 program. It is estimated that roughly $7.2 billion in military equipment – many of which was used in past armed conflicts – has been transferred to national law enforcement agencies since 1997.
“Militarized” officers often treat the public as the “enemy” rather than in need of serving and protection. Furthermore, without holding officers accountable for their use of military-level force against civilians, police departments will likely continue to “militarize” their forces with little risk of penalty.
Holding Police Officers Accountable
Police unions have ardently fought back against police accountability measures. In the 1970s, sixteen states adopted The Law Enforcement Officers’ Bill of Rights (LEOBOR) – advanced mainly by unions – that grants officers special privileges in investigations once a department decides to pursue an allegation.
According to the LEOBOR, an accused officer may have access to “all witness statements, including… but not limited to, incident reports, GPS locator information, and audio or video recordings relation to the incident under investigation” before interrogation of the officer takes place (Article 1-d), unlike civilians who are suspected of a crime.
All complaint review boards are composed of three to five members, one or two of which are chosen by the aggrieved officer himself!
The majority of these investigations take place behind closed doors, with little public involvement. For example, officers are not to be investigated by “non-government agents”, and all complaint review boards are composed of three to five members, one or two of which are chosen by the aggrieved officer himself!
Not only are officers given the upper hand in internal police investigations – making them largely ineffective – but even criminal prosecutions are hindered by excessive legal protections. For example, the Delaware chapter of the LEOBOR states that all “records compiled as a result of any investigation… shall be and remain confidential and shall not be released to the public” (Article c-12).
Gaining access to officers’ disciplinary records is further complicated by what is known as “purge clauses”, which require departments to erase any record of disciplinary action taken against an officer after a certain lapse of time, typically anywhere from a number of months to multiple years. This comes in stark contrast to the reality that many former criminals – who are required to disclose past convictions – face when applying for jobs in the United States.
“Purge clauses” require departments to erase any record of disciplinary action taken against an officer after a certain lapse of time, typically anywhere from a number of months to multiple years.
Other clauses in the LEOBOR state that the accused officer may not be “threatened with transfer, dismissal, or disciplinary action” during the investigation, and if any of these rights are violated, the investigation may be dropped entirely.
States that have not passed the LEOBOR have nonetheless adopted similar laws. For example, New York “has a law specifically shielding police misconduct records from the public”, just like the one in Delaware under the LEOBOR.
What is Qualified Immunity?
Officers are also protected by what is known as “qualified immunity”, a legal doctrine established by the Supreme Court. Qualified immunity rules that a government official may only be pursued in court if he or she is found to be violating a “clearly established” statutory or constitutional right.
Any “new” violations cannot be prosecuted in court, setting a dangerous precedent in which violations are likely to continue due to a lack of “viable” initial lawsuits. Most recently, James King, who was assaulted by plainclothes police officers in 2014, has taken his lawsuit to the Supreme Court in hopes of challenging “qualified immunity” and holding his assaulters accountable.
Qualified immunity rules that a government official may only be pursued in court if he or she is found to be violating a “clearly established” statutory or constitutional right.
However, qualified immunity and the LEOBOR only make up part of the equation. Police unions are able to push for such protections in their contracts with cities due to their political clout. Police union and law enforcement political action committees have donated millions to congressional campaigns on both sides of the aisle since the 1990s.
While police unions have traditionally fought for better healthcare, pensions, and salaries, contracts began to shift away from these policies during the 1980s and towards more “coercive” measures that grant officers more legal protections. “Cash-strapped cities gave more management control to unions rather than increase salaries,” reports Reuters, especially during recessions.
Is There a Way Forward?
Police reform would by no means be easy, but the US must take steps to end the militarization of the police, as well as the legal immunity that many officers currently benefit from. Although long-term policing models need to be completely redesigned in order to take into account social programs that are more fitted to communities’ needs, some steps can be taken in the meantime. Here is a list – by no means exhaustive – of immediate actions that would help remove corrupt officers and bring them to justice:
- End or limit the 1033 program. Police officers do not need military-grade weapons when interacting with civilians, except under exceptional circumstances, in which case SWAT teams or the military should be called to intervene.
- Reorient SWAT teams towards their original purpose: intervention in hostages, barricades, terrorism attacks, riots, or any other high-risk situation. Drug raids – many of which have ended in tragedy due to incompetence on the part of the officers – do not warrant excessive SWAT intervention.
- Create neutral investigative bodies to pursue complaints or accusations against officers. Independent civilian review boards would allow the public to have a greater role in reducing police misconduct. Accused officers should not get to choose their “investigators” in complaint review boards, which is the case under the LEOBOR.
- Reduce or eliminate “purge clauses” to ensure that officers’ records are accurate and up to date. In some cities, anonymous complaints or those that do not result in a proven allegation are dropped from officers’ records, resulting in one-sided reports. Officers’ disciplinary records, which should be made public when necessary, must include all relevant accusations in order to hold officers legally accountable.
- Enforce the use of body cameras, but only if access to footage can be made available to the public when necessary. Footage that shows the usage of excessive force by an officer is unlikely to accomplish much if it hides behind “purge clauses” or the LEOBOR.
- Enforce a legal “duty to intervene” or police “honor code” within police departments.
- Limit clauses in the LEOBOR that give officers rights that are not granted to civilians accused of crimes. Officers should not be able to have access to witnesses’ testimonies before they are interrogated.
- End “qualified immunity”. Officers that are in clear violation of the law should not get a “free pass” because of the badge they wear. Qualified immunity has no legal standing – it was created by the Supreme Court – and continues to allow many corrupt officers to be excused for their crimes.
- Re-evaluate police union contracts in order to put the emphasis back on healthcare benefits, paid leave, etc. for officers, rather than excessive legal protections. While police officers should be compensated for their sacrifices, they are not above the law.
- Hold politicians accountable for what they claim to support. Any politician that denounces police violence while accepting donations from police unions – especially very powerful ones like the Fraternal Order of Police – do not have civilians’ best interests at heart.
- Progressively defund the police in order to support community programs. In some cities, police forces’ budgets far exceed that needed to address the crime rate, money that could be put towards more social welfare programs, such as education, healthcare, etc. Rehabilitation programs would be a far more appropriate solution to drug abuse than jail time, for example.
- And finally, find ways to rebuild trust between police officers and civilians. This is probably the most challenging reform of all, as it cannot be accomplished with a quick legal fix. However, implementing new legislation and holding officers to a higher standard would definitely be a start.
The road to effective law enforcement – already underway – is undoubtedly a long one, but the demilitarization of the police and higher accountability standards would already make a profound difference in America’s policing. Legal action must be taken at all levels of governance – local, state, and federal – in order to ensure swift change, although differences between the House and the Senate are likely to delay such. Police reform that puts civilians’ interests at the forefront, including ending racial injustice, must therefore be a national priority and not a partisan issue. If not, America’s desperately needed police reforms are likely to get caught – and lost – in the cross-fire.