Urban policing went wrong when nobody was looking

Last week, President Obama announced new rules for the distribution of surplus military hardware to local police forces and unveiled a report on 21st-century policing. The new procedures and recommendations rightly acknowledge failings in the U.S. criminal-justice system, and they’re a step in the right direction. Obama deserves credit.

Just don’t expect much to change.

What would it take to make a real difference? Sadly, nothing that might actually happen. The problem is structural — a kind of constitutional paralysis. Every branch of the U.S. government has recused itself from addressing it in a serious way.

For years, under a program known as 1033, the federal government has been giving vast quantities of weapons of war to local police forces. After months of careful study, the administration has declared that weaponized aircraft, tracked armored vehicles, bayonets, grenade launchers, urban-combat camouflage, and munitions capable of penetrating concrete walls may be inappropriate for use in the domestic law-enforcement context. Those transfers will stop.

In addition, grants of equipment including mine-resistant armored vehicles(with wheels as opposed to tracks), riot gear and explosives will be subject to conditions. For this controlled category of armaments, police departments will have to give a “detailed, clear and persuasive explanation” to justify their requests, and they'll need a city council or mayor or local governing body to approve. Previously, they just had to ask.

As I say, a step in the right direction — that of reminding police departments that their job is to protect and serve, not wage war. However, 1033 is only one of the federal government’s programs for arming local police, and not the biggest. Also, police departments are free to buy military equipment at their own expense. Suppliers aren’t lacking; and if taxpayers are unwilling to pay, civil forfeiture and other forms of predatory policing can help make up the shortfall.

Meanwhile departments will be able to keep the weaponry they’ve already acquired. Apparently, there’s no way to retrieve it. (Some departments, on the other hand, want to get rid of equipment, only to find that the feds won’t take it back.)

The problem is one of culture as much as of weaponry. America is a heavily armed society and the police need to be adequately equipped. Situations like the one in Waco, Texas, arise. It’s well to remember what police officers in many U.S. cities are up against. But this doesn’t explain the explosion in the use of SWAT teams and other military tactics since the 1980s. These raids are mostly directed not against hostage-takers or shooters behind barricades (the scenarios usually invoked to justify such force) but to execute search warrants. In the war on drugs, the paramilitary no-knock raid has become routine.

Admittedly, it’s impossible to be sure just how routine, because the data isn’t collected. Obama’s announcement includes a Police Data Initiative aimed at “using open data to increase transparency, build community trust, and support innovation.” The hope is to develop “early warning systems, to identify problems, increase internal accountability, and decrease inappropriate uses of force.” That would be grand. We'll see how far the idea gets.

How did it ever come to this? Through a series of small and seemingly unconnected steps, the character of American policing and the civil liberties of U.S. citizens have changed profoundly — without any branch of government ever weighing the totality of what was happening, intending that this should happen or even consenting to it after the fact.

The Justice Department is conflicted. The outgoing Attorney General, Eric Holder sharply criticized policing in Ferguson, and his department issued a scathing report on the subject in March. It has launched many other investigations into local law enforcement. Yet, as the New York Times reports, it has reliably supported police officers in excessive-force cases before the Supreme Court — staking out “positions that make it harder for people to sue the police and that give officers more discretion about when to fire their guns.”

The courts, for their part, have also failed to halt the shift toward policing that, in Obama’s words, “can sometimes give people a feeling like there’s an occupying force.” This judicial acquiescence is partly because of a legal Catch-22. The doctrine of qualified immunity is one of the obstacles to suing the police. Officers are shielded by it unless the conduct in question violates a clearly established constitutional or statutory right. If the right at issue isn’t clearly established, the case is stopped before it goes to trial — so the right never gets clearly established.

With the Justice Department conflicted and the courts either uninvolved or washing their hands, the problem falls to Congress. Apparently, only new laws can stop the police from acting like an occupying army if they choose to — a sad commentary on the protections afforded by the Constitution. But maybe Congress, finally, is getting in the mood to do something. Lately, an unlikely bipartisan alliance on criminal-justice reform has seemed to be forming.

That’s good, but I won’t be holding my breath. The traditional alliance of law-and-order liberals, law-and-order conservatives and powerful police unions has kept the police beyond the reach of law and order all through the breakdown of the U.S. system of criminal justice. I don’t see that changing.

Clive Crook is a Bloomberg View columnist and a member of the Bloomberg View editorial board.

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