Saturday, January 24, 2015

The Militarization of Police Forces as Violative of the Third Amendment, Part I

The Third Amendment to the United States Constitution provides:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. (U.S. Const. amend. III)
[The] Third Amendment focuses on structural issue of protecting civilian values against threat of an overbearing military.  No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle insinuation.  (Akhil Reed Amar, The Bill of Rights, Yale University (1998), at 59)
        Recent events in Ferguson, Missouri, New York City and other places have placed this issue squarely in the public eye, as heavily armed police forces are seen on national television as military occupation forces shooting and killing unarmed citizens instead of police officers protecting us. “The continual necessity for their services enhances the importance of the [para-military police forces], and proportionably degrades the condition of the citizen. The [police] state becomes elevated above the civil.” (Alexander Hamilton, The Federalist Papers, No. 8 (New York: Mentor Books, 1961), at 70).
I submit that the right of citizens to be free from any form of ‘military occupation’ either openly or by subtle insinuation, or by any form of peripherals thereof (such as a ‘police’ state) “is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights.” (Griswold v. Connecticut, 381 U.S. 479, 487, 85 S. Ct. 1678, 1683, 14 L. Ed. 2d 510 (1965).  If instead of police forces now we have military forces in our cities and neighborhoods, then this constitutes the ‘quartering of soldiers’ in our neighborhoods violating our penumbral privacy rights under the Third Amendment to secure our homes against ‘military occupation.’  

Militarization of Police Forces

The issue of police departments using military-style equipment was thrust into the spotlight in August, when media outlets began broadcasting footage of officers in Ferguson squaring off with protesters following the police shooting of an unarmed black man. Ferguson officers used armored tanks and machines guns in the response to demonstrations, which began after the death of 18-year-old Michael Brown, who was killed by a police officer in a street confrontation. (Senators blast DOD program that 'militarized police' By Tim Devaney, The Hill, 09/09/14 03:13 PM EDT; accessed on December 25, 2014 at 1428 hrs. P.S.T.).

If you are wondering what the police was planning to do with those armored tanks and machine guns, you are not alone; and the answer cannot likely be an acceptable one.  However, the fact is that:

America has been quietly arming its police for battle since the early 1990s.

Faced with a bloated military and what it perceived as a worsening drug crisis, the 101st Congress in 1990 enacted the National Defense Authorization Act. Section 1208 of the NDAA allowed the Secretary of Defense to “transfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is— (A) suitable for use by such agencies in counter-drug activities; and (B) excess to the needs of the Department of Defense.” It was called the 1208 Program. In 1996, Congress replaced Section 1208 with Section 1033.  The idea was that if the U.S. wanted its police to act like drug warriors, it should equip them like warriors, which it has—to the tune of around $4.3 billion in equipment, according to a report by the American Civil Liberties Union. The St. Louis County Police Department’s annual budget is around $160 million. By providing law enforcement agencies with surplus military equipment free of charge, the NDAA encourages police to employ military weapons and military tactics.  (How America’s Police Became an Army: The 1033 Program BY TAYLOR WOFFORD 8/13/14 AT 10:47 PM in Newsweek;, Accessed On December 24, 2014 at 14:15 hrs P.S.T.).
According to a study by the American Civil Liberties Union published last year [referenced in the above article]:

Across the country, heavily armed Special Weapons and Tactics (SWAT) teams are forcing their way into people’s homes in the middle of the night, often deploying explosive devices such as flashbang grenades to temporarily blind and deafen residents, simply to serve a search warrant on the suspicion that someone may be in possession of a small amount of drugs. Neighborhoods are not war zones, and our police officers should not be treating us like wartime enemies.  (ACLU, War Comes Home: The Excessive Militarization of American Policing (2014), at 2; in, accessed on December 24, 2014, at 1315 hrs. P.S.T.).
Militarization of policing encourages officers to adopt a “warrior” mentality and think of the people they are supposed to serve as enemies. (Id., at 3).

The ACLU study findings included the following:

1.            Policing—particularly through the use of paramilitary teams—in the United States today has become excessively militarized, mainly through federal programs that create incentives for state and local police to use unnecessarily aggressive weapons and tactics designed for the battlefield. For example, the ACLU documented a total of 15,054 items of battle uniforms or personal protective equipment received by 63 responding agencies during the relevant time period, and it is estimated that 500 law enforcement agencies have received Mine Resistant Ambush Protected (MRAP) vehicles built to withstand armorpiercing roadside bombs through the Department of Defense’s 1033 Program.2.            The militarization of policing in the United States has occurred with almost no public oversight.3.            SWAT teams were often deployed—unnecessarily and aggressively—to execute search warrants in low-level drug investigations; deployments for hostage or barricade scenarios occurred in only a small number of incidents. (Id., at 5).4.            The use of paramilitary weapons and tactics primarily impacted people of color; when paramilitary tactics were used in drug searches, the primary targets were people of color, whereas when paramilitary tactics were used in hostage or barricade scenarios, the primary targets were white. (Id., at 5).5.            SWAT deployments often and unnecessarily entailed the use of violent tactics and equipment, including armored personnel carriers; use of violent tactics and equipment was shown to increase the risk of bodily harm and property damage. (Id., at 6).

All that battle gear you saw in Ferguson was acquired not from the military, but from private companies like the ones touting their wares at Urban Shield.
This summer, images of armored vehicles and police pointing semi-automatic rifles at demonstrators in Ferguson, Missouri, set off a debate over what journalist Radley Balko has termed the "rise of the warrior cop." A National Public Radio analysis found that since 2006, the Pentagon has given local cops some $1.9 billion worth of equipment—including 600 mine-resistant, ambush-protected vehicles (MRAPs), 80,000 assault rifles, 200 grenade launchers, and 12,000 bayonets (yes, bayonets). But those totals pale in comparison to the amount of gear purchased from private companies. The Ferguson Police Department, for example, received some computers, utility trucks, and blankets from the military—but all that battle gear you saw on TV was bought from corporations like the ones pitching their wares at Urban Shield. Outfitting America's warrior cops, it turns out, is a major business, and one fueled in large part by the federal Department of Homeland Security. The Department of Defense has given $5.1 billion worth of equipment to state and local police departments since 1997, with even rural counties acquiring things like grenade launchers and armored personnel carriers. But Homeland Security has handed out grants worth eight times as much—$41 billion since 2002. The money is earmarked for counterterrorism, but DHS specifies that once acquired, the equipment can be used for any other law-enforcement purpose, from shutting down protests to serving warrants and executing home searches.  (The Making of the Warrior Cop: Inside the Billion-Dollar Industry that Turned Local Cops into SEAL Team Six.  Do police really need grenade launchers? By Shane Bauer, Mother Jones, October 2014; in ; accessed on December 27, 2014 at 2330 hrs. P.S.T.)

This industry of suppliers hosts its own conferences where its paddles its latest hardware to police from across the country and a host of other countries.

Organizers of the conference, known as Urban Shield, said it was the largest first-responder training in the world; now in its eighth year, it has drawn teams from places as far-flung as Singapore, South Korea, Israel, and Bahrain. Each group would go through 35 tactical scenarios over 48 hours, with no breaks except the occasional catnap. An airplane was lined up for busting a gun smuggler, and a cargo ship would be seized by a terrorist after a make-believe earthquake. A "militant atheist extremist group" would take hostages at a church.

The event was paid for mostly by the Department of Homeland Security, but more than 100 corporations threw in money too, up to $25,000 each. In many of the scenarios, teams would try out the latest equipment on offer from Urban Shield's corporate sponsors—Verizon, Motorola, SIG Sauer. Many were military supply companies—FirstSpear, for example, was founded by former soldiers to make body armor and bandoliers for "US and allied warfighters." Here, they sold their stuff to cops. Then there were "platinum sponsors" like Uber, which gave police discount black-car rides for the weekend.
Urban Shield was started in 2007 by an Alameda County assistant sheriff named James Baker. In 2011, he told me, Homeland Security asked him to bring the event to other parts of the country, so he started a company, the Cytel Group, that would put on Urban Shield in Boston, Austin, and Dallas. "Urban Shield is a program that gets everybody working together" to respond to crises, he said. Baker's firm has also received $500,000 in state funds to write guidelines for SWAT teams, on things like how much gear each team is required to have.  ( ; accessed on December 27, 2014 at 2330 hrs. P.S.T.).

This concern is not just of liberals and civil libertarians but reflects deep concern among conservatives as well.  For example, 

Senators took aim in particular at the Defense Department's provision of 617 mine-resistant, ambush-protected vehicles to small police departments. As the U.S. has drawn down forces in Iraq and Afghanistan, the hulking vehicles have been finding their way to smaller and smaller towns. Police departments generally don't receive training in how or when to use them.”  (Senators Criticize Growing Militarization of Local Police Departments:  Democrats, Republicans Question Federal Programs Giving Military-Style Gear to Local Law Enforcement, By Andrew Grossman, Wall Street Journal, Updated Sept. 9, 2014 7:38 p.m. ET;;  accessed on December 24, 2014, at 1430 hrs. P.S.T.).
Sen. Claire McCaskill (D-Mo.), who called for [a] hearing, criticized Ferguson police for creating the appearance of a “war zone” and treating protesters like “enemy combatants” in the suburb of St. Louis.
McCaskill said the Pentagon’s 1033 program is “driving me crazy.”
McCaskill pointed out that in some places local police departments are more heavily armed than the National Guard. In Michigan, a police department with only one full-time officer was given 13 assault weapons, she said.
But what upsets her the most is that, rather than providing old, used weapons to police, more than one-third of the time the Pentagon is giving them new equipment for free. [emphasis added]
"What are we doing?” McCaskill asked. "Why are we buying these at the Department of Defense merely to turn around and give it away?"  (Senators blast DOD program that 'militarized police' By Tim Devaney, The Hill, 09/09/14 03:13 PM EDT; accessed on December 25, 2014 at 1428 hrs. P.S.T.; Pentagon and Other Agencies Slammed for Police Militarization at Senate Hearing, By Jenna McLaughlin, Mother Jones, Tue Sep. 9, 2014 4:07 PM EDT ; accessed on December 28, 2014 at 0035 hrs. P.S.T.).

This is not good, particularly as, e.g., the data in the Mother Jones article suggests that violence against police officers has gone down since the 1990s and crime is down as well—and not because of the increased militarization of the police.

This was a common theme [at the Urban Shield Conference]: Since the bad guys are well armed, police need better defenses and an intimidating appearance. And it's true that guns on the street have gotten bigger—but it's also true that being a cop today is the safest it has been since 1964. The most dangerous year in recent decades was 1973, when there were 134 felony killings of police officers in the line of duty. By 2012, that number had dropped to 47. Some of that might be because police are better protected, but they are also not being attacked as often: Assaults on cops are down 45 percent since their peak in 1971. Indeed, violent crime overall is down in America—it has fallen by nearly half since 1991. ( ; accessed on December 27, 2014 at 2330 hrs. P.S.T.).

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