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

Standing Armies?

        One of the earliest arguments in favor of the federal constitution was the necessity of unity among the states to preclude the necessity of a standing army which was seen as a threat to the liberty interests of all.

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. (Federalist Paper, No. 8, supra, at 67).

        In Federalist No. 8 Hamilton clearly demonstrates the “classic republican skepticism of peacetime armies” (Akhil Reed Amar, supra, at 267):

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. [emphasis added] The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. (Federalist Paper, No. 8, supra, at 69-70).

       This is the problem we now face.  "Tell me what the difference is between an increasingly militarized police force and a standing army,” Sen. Tom Coburn (R-Okla.) said during a hearing before the Senate Homeland Security and Governmental Affairs Committee, the first congressional hearing on the militarization of police.  (Senators blast DOD program that 'militarized police' By Tim Devaney, The Hill, 09/09/14 03:13 PM EDT  http://thehill.com/regulation/217136-senators-blast-dod-program-to-militarize-police; accessed on December 25, 2014 at 1428 hrs. P.S.T.).

"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 Madison had in mind when he said 'a standing military force with an overgrown executive will not long be a safe companion to liberty,' " said Sen. Tom Coburn (R., Okla.) on Tuesday, referring to one of the Founding Fathers.  (Grossman, Updated Sept. 9, 2014 7:38 p.m. ET; accessed on December 24, 2014, at 1509 hrs. P.S.T.).

       Senator Coburn’s concern was given particular effect on this Christmas in one specific but poignant example:

Manchester [CT] Police are on a mission this Christmas Day--delivering toys to needy children.
Police cruised through town this morning in an armored vehicle, decked out in lights and tinsel, to hand out toys to needy children.
…
The officers' sleigh is the department's armored Bearcat, a $250,000 vehicle that is designed for tactical emergency response. (Manchester Police Help Santa on Christmas Day By Stephanie O'Connell, NBC Connecticut, Thursday, Dec 25, 2014 • Updated at 7:02 PM EST; in http://www.nbcconnecticut.com/news/local/Manchester-286828801.html; accessed on December 26, 2014, at 2025 hrs P.S.T.).  

Insidious Military Occupation and Domination of Society?

A peacetime ‘army’ of para-military police forces can lead to what Hamilton and the founding fathers feared most:

The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. (Federalist Paper, No. 8, supra, at 69-70).

       Or as Patrick Henry put it:  “Here we may have troops in times of peace.  They may be billeted in any manner [emphasis added]—to tyrannize, oppress, and crush us.”  (Quoted in Akhil Reed Amar, supra, at 61).

       Police Special Weapons and Tactics (SWAT) teams are the ‘poster images’ of actions to ‘tyrannize, oppress, and crush us’ by police paramilitary operations gone awry:

SPECIAL WEAPONS AND TACTICS TEAMS were created in the late 1960s for extreme scenarios like saving hostages and taking down active shooters. But police departments soon began deploying them in more mundane situations. In 1984, just 40 percent of SWAT teams were serving warrants. By 2012, the number was 79 percent. In all, the number of SWAT raids across the country has increased 20-fold since the 1980s, going from 3,000 per year to at least 60,000. And SWAT teams are no longer limited to large cities: In the mid-1980s, only 20 percent of towns with populations between 25,000 and 50,000 had such teams. By 2007, 80 percent did.

Much of the increase has been driven by the drug war, says David Klinger, a former Los Angeles cop and a professor of criminal justice at the University of Missouri-St. Louis. "If we didn't think that drugs were the most evilest thing in the history of God's green earth," he says, "and weren't running hither and yon trying to catch people with dope in their house, none of this would have happened."

Today, 85 percent of SWAT operations are for "choice-driven raids on people's private residences," Peter Kraska, an Eastern Kentucky University researcher who studies tactical policing, said in a recent Senate hearing. According to a study released by the American Civil Liberties Union earlier this year [referenced above], 62 percent of SWAT deployments were for drug raids. The study found that in these raids, drugs were found only half of the time. When weapons were "believed to be present," they were not found in half of the cases for which the outcome was known. (http://www.motherjones.com/politics/2014/10/swat-warrior-cops-police-militarization-urban-shield ; accessed on December 27, 2014 at 2330 hrs. P.S.T.). 
 

Presently, the problem was best summarized in a recent editorial in the Sacramento News and Review:

For too long, we’ve allowed ourselves to think that people who are killed or harmed by police must have done something wrong. But does anyone really think that mental illness, or shoplifting, or car theft, or outstanding warrants on burglaries, or—for crying out loud—selling loose cigarettes on the street demands an immediately executed death sentence?  (Editorial, Sacramento News and Review, December 25, 2014, http://www.newsreview.com/sacramento/shocking/content?oid=15834400; accessed December 26, 2014, 0107 hrs. P.S.T.)

                According to Human Rights Watch (“HRW”), a nonprofit, nongovernmental organization that supports human rights around the globe, in response to Ferguson protests:

Police have responded with threatening measures – such as pointing military assault rifles at peaceful protesters and deploying armored vehicles – that infringe on rights to peaceful assembly and expression. They have also used apparently unnecessary or excessive force – including firing teargas and rubber bullets into crowds, and arbitrarily detained journalists covering the events.
The police response to the protests has also raised concerns about the accountability of law enforcement, Human Rights Watch said. Some police officers were not wearing name tags or badges with visible numbers, witnesses said. Early in the police response, four law enforcement agencies were involved, with officials on the scene refusing to identify which agency was in charge. This made it difficult to determine whether each of the agencies had policies on the use of force and whether they were being followed.  (Human Rights Watch, US: Holder Should Press for Police Reform.  Ferguson Unrest Shows Need for Effective Oversight, Transparency, August 20, 2014; at http://www.hrw.org/news/2014/08/20/us-holder-should-press-police-reform; accessed on December 26, 2014, at 1908 hrs, P.S.T.).

        After direct observations in Ferguson by HRW personnel, in another news report, HRW commented:

Human Rights Watch spent several days in Ferguson, beginning on August 17, to investigate and report on the reasons behind the protests, as well as the police response. Law enforcement agencies in a number of instances used teargas, rubber bullets and other tactics in apparent violation of the right to peaceful assembly and freedom of expression, and engaged in possible excessive use of force.

In one episode, police pointed rifles at a local resident and her 15-year-old daughter who were peacefully protesting in a private parking lot even though they had permission from the owner. In another case, a group of peaceful marchers and a photojournalist were surrounded by armored police vehicles, backed into a driveway, and tear-gassed three seconds after being told to disperse.

The law enforcement response to the protests featured a lack of transparency and accountability, Human Rights Watch said. These problems may have been exacerbated by the large number of separate local, county, and state agencies involved and the lack of communication among them. Missouri state officials have provided inconsistent information regarding which agencies were involved and when. Public records requests Human Rights Watch submitted on August 28 have gone unanswered, beyond the three-day time period that Missouri public records laws mandate for a response. (Human Rights Watch, US: Missouri Should Review Ferguson Response. Law Enforcement Failures Show Need for Effective Oversight, Transparency, September 9, 2014; at http://www.hrw.org/news/2014/09/09/us-missouri-should-review-ferguson-response; accessed on December 26, 2014, at 1920 hrs, P.S.T.).

In a concluding news report on this issue, HRW determined that:

Human Rights Watch found serious problems in the police response to the protests. The problems included the intimidation of protesters that infringed upon their rights to assembly and freedom of expression, which are protected under both the US Constitution and international law. At times, the police used unnecessary and disproportionate force. The authorities also hindered media organizations from gathering news on the protests. (Human Rights Watch, US:  Respect Rights of Ferguson Protesters.  Past Abuses Highlight Need for Improved Police Response, November 19, 2014; at http://www.hrw.org/news/2014/11/19/us-respect-rights-ferguson-protesters; accessed on December 26, 2014, at 1914 hrs, P.S.T.).

The fact is that by coopting military practices, training and equipment, the federal government is now involved in our local police forces.  For example, what is a police officer going to use a grenade launcher for?

The use of tactics such as showing up at people’s homes and making arrests in the middle of the night were standard practices of the Soviet NKVD (People’s Commissariat of Internal Affairs) during the reign of Iosif Stalin.  Is this what we want for America in the 21^st century?