Cops Aren’t Under Siege. Civilians and Liberties Are.
Last week the sheriff’s office posted a thank-you letter on its Facebook page that a citizen gave two deputies. It’s about 100 words long, and it’s a touching note of gratefulness “from a family that cares” for cops who put their lives on the line every day to keep the community safe. I agree wholeheartedly.
But one phrase struck a false note: “In spite of all the restrictions put on law enforcement recently…” It’s the sort of inaccuracy often spread unquestioningly on social media, by supposedly reputable news sites, and of course by cops themselves: the last local election for sheriff often rang with absurd claims by candidates that they’d “restore” police authority and that they’d “have their cops’ backs,” as if cops now were running for their lives. A sheriff who justly means to trust his troops and investigate internal problems before making accusations is not the issue. That’s responsible leadership. But the cops-as-victims fantasy reflects a narrative of police under siege and somehow handcuffed by these vague “restrictions” that keep them from doing their job properly.
The reality is the opposite. For three decades, Congress, state legislatures, courts and public attitudes have overwhelmingly beefed up police powers, toughened crime laws and harshed up prison terms at the expense of defendants and the Bill of Rights. The Supreme Court under Earl Warren in the 1950s and 60s was an exception. For the first time in the nation’s history the rights of the accused got a little more than lip service. Such things as Miranda warnings and limits on searches and interrogations attempted to give the Fourth and Fifth Amendments new life. It didn’t last. By the 1980s the courts were swinging the other way with armored abandon.
Under the guise of the war on drugs, the war on terror, the war on immigrants and now the revived craving of Nixon-era “law-and-order,” policing has evolved into the shrewdest expression of authoritarian power in everyday life. When I think of big government, I don’t think of, abstract, far-away bureaucracies that, in any case, work better than advertised. I think of government as it interacts on a daily basis with us locally: code enforcement, public utilities, trash collectors, and of course courts and cops. Though we’ve been fortunate to have generally decent and respectful local law enforcement agencies, particularly the sheriff’s office and the Flagler Beach Police Department, that rule is not necessarily a guarantee. One jurisdiction’s luck may be another jurisdiction’s misfortune, and institutional problems are the universal language of accepted police overreach posing under accepted practices of “force matrix” and other euphemisms of brutality. Even a cursory look at the sort of policing that’s been normalized over the past decades shows its one-way command to submission. “Stop resisting” isn’t a suggestion. It’s a citizen’s only warning shot of what follows—a cop’s blank-check equivalent to tap an arsenal of powers, naked force that scrapes at the edge of human rights included.
It can start with the innocuous traffic stop, which itself can start with so little as a broken taillight or an unclicked seatbelt. Cops may order passengers, not just drivers, out of a car even without probable cause. They can sniff your car or bags without a warrant, then conduct a search if the dog sniffs something, without a warrant. They can simply ask you to consent to a search without a warrant or even surmise it under the bogus theory of “implied consent,” and since most people feel intimidated or don’t know their rights—and cops usually don’t volunteer the information—most submit. If they don’t, they invite suspicion.
Just this year the Supreme Court ruled it legal for police to use evidence found in an illegal traffic stop, and found it illegal for drivers to refuse a breath test, even without a warrant (though blood draws now require a warrant.) At your own home cops can keep you outside for two hours before they secure a search warrant. They can barge in after a pro-forma knock at the door—or simply search, without a warrant, if the homeowner is absent, and they play that “consent” card with someone else on the premises.
Camera surveillance, face-recognition technology, license-plate readers, not to mention the sweeping powers of the USA Patriot Act, still very much in force, have made a mockery of privacy in most places, your home computer and hand-held devices included. Police powers under civil asset forfeiture laws give cops authority to seize cash and assets on mere probable cause, not conviction—and never give them back. Databases have hugely increased police powers to keep tabs on citizens’ private business, with Florida playing a leading role. As for students’ rights at school, courts have steadily demolished those even as federal law has turned student privacy into a religion. It’s not been entirely one-sided: a warrant is required to install electronic tracking devices or search cell phones in most cases (though federal wiretapping is greatly more permissive), cops can’t use drones yet but can still fly over anyone’s property in helicopters. Such restrictions tend to be exceptions more than rules.
In interrogation rooms, the law now allows investigators to lie, trick and deceive their suspect. They can do anything but threaten or exert violence. Once into the so-called justice system, the machinery of pleas kick in with decks stacked in favor of prosecutors and against poorer defendants left at the mercy of public defender offices that look almost as indigent. “Innocent until proven guilty” is a phrase about as believable as “all the restrictions put on law enforcement recently.”
Cops can’t necessarily be blamed for what goes on in the justice system, but as anyone who’s watched court proceedings regularly will tell you, it’s cops, prosecutors, most of the laws and a good deal of law-and-order judges on one side, and defendants on the other. There’s nothing fair, balanced or just about it. Rare is the judge who’ll let stand question of the authenticity of an arresting affidavit or a cop’s testimony, though as Peter Keane, the former San Francisco police commissioner, put it, “One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.” And the lying involves a lot more than narcotics cops.
Back outside and thanks to the military surplus craze since the nation has been engaging in perpetual wars on drugs, on terror and in the Middle East, law enforcement agencies of all sizes, including the Flagler’s sheriff’s office, have become paramilitary organizations with assault weaponry, SWAT teams and armored personnel carriers made for guerilla warfare and once thought necessary at most only in the rarest mass-hostage or urban riot situations, not in towns of 30,000 suburban plots with fire-ant crime rates.
The more powerful cops feel, the more immune from accountability they’ll act. Their own infrastructure gives them cover—not just with that famous code of silence in their own departments, but institutionally, nationally. While the FBI tracks crimes by civilians, it does not do so when cops are involved. It has a database of fatal police shootings, but it doesn’t require police agencies to keep it updated, and it doesn’t have data beyond fatal shootings. It matters. Comprehensive data alerts the public to trends, lends itself to analysis and helps inspire corrective measures. Without data, a false sense of normalcy prevails. That’s what we’ve had, that’s why the cell-phone footage of brutal acts appears so shockingly out of the ordinary, when if anything those encounters have been too shockingly ordinary.
Various analyses by media and university researchers have invariably found that cops are rarely charged and even more rarely punished when they kill unarmed civilians. If they are, they spend little time in prison. The same is true when cops violate civil rights. In a 20-year period, an investigation found, cops avoided federal charges in 96 percent of cases in which they were investigated.
Even the Obama administration, often and falsely claimed to have been anti-police, has in fact been overwhelmingly protective of cops’ use of force. “At the Supreme Court, where the limits of police power are established,” The New York Ties reported last year, the Justice Department “has supported police officers every time an excessive-force case has made its way to arguments. Even as it has opened more than 20 civil rights investigations into local law enforcement practices, the Justice Department has staked out positions that make it harder for people to sue the police and that give officers more discretion about when to fire their guns.” And the Supreme Court has routinely sided with cops on use of force.
Florida is better at this (so far), but in all but 12 states, police disciplinary records are sealed in whole or in part. When the slightest initiative is introduced to right the balance in favor of civilians, it’s quickly diluted: civilian review boards are either ridiculed or non-existent, including here. No sooner were body camera introduced than laws were added restricting public access to them, starting in Florida.
The surge in police powers has paralleled an explosion in private security forces, private prisons, and legalized vigilantism such as Florida’s Stand Your Ground law, all the while legitimizing the language of totalitarian states: “If you have nothing to hide, you have nothing to worry about.” That’s the language of submission, not liberty, of flipping means and ends: police aren’t here to protect us, but to command us. They define our liberties as opposed to the other way around, when the 4th amendment is intended to clearly demarcate the limits of police powers and our right to be let alone is unquestioned absent probable cause—not hunches, not sniffs, not a badge’s presumptions or “implied consent.”
There’s been an increase in officer killings this year, and that’s concerning: 63 law enforcement officers have been shot and killed in the line of duty so far this year, a 68 percent increase over last year. But even that number plays into the false narratives of cops under siege. Overall cops’ deaths in the line of duty this year are up 22 percent, and looking at cops’ killings in criminal situations, 2016, despite the spike, will still continue a historical trend of significantly decreased killings in the line of duty since the early 1970s, when more than twice as many cops were killed. And though public perceptions aided by media and cop hype may claim otherwise, a cop’s job still wouldn’t make it into the top 10 most dangerous jobs in America, with loggers, roofers, truck drivers and garbage collectors, among others, facing more fatal hazards than cops. This is not to take any job hazards lightly, those of cops included. But let’s not take facts so lightly as to substitute self-serving myths for them, either.
If we’re witnessing a wave of police brutality and public clashes between cops and civilians, it’s the result of years of loosening restrictions on police powers, fostering an arrogance of force and lack of accountability. It’s certainly not because restrictions have been imposed on police. The difference now is that some of that arrogance is occasionally captured on cell phones and seen by millions, instead of suffered by victims alone. Instead of laws rebalancing the field at least a little in favor of citizens and defendants, pockets of public outrage have attempted to do what TV cameras once did with Bull Connor’s attack dogs in Birmingham. As the Columbia University humanities professor Mark Lilla put it in The Times right near the time when that nice letter was being delivered to the Flagler sheriff’s deputies, “Black Lives Matter has delivered a wake-up call to every American with a conscience.” Occasionally snarling or bigoted reactions to that movement aside, it’s caused an overdue rethinking of police powers, including thoughtful and measured discussions locally. But that’s all it’s been: pockets of scattershot outrage with brief lives in the nation’s conscience, not the sort of movement that can improve behavior, department policies and, ultimately, change laws.
So it’s both too early to tell whether that translates into less blunt policing and too little to suggest that it will. Donald Trump’s election, powered at least in part by law-and-order euphemisms for more police powers, not less, does not bode well. And popular delusions such as “restrictions put on law enforcement” tell us that—like the toxic culture of “stop resisting”—the police state is more entrenched in our liberty-loving land than we care to admit. All you have to do is listen. The conversation about better policing is either dying or getting drowned out by Kevlar-muffled chest-thumping.