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it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement.
How did we evolve from a country whose founding statesmen were adamant about the dangers of armed, standing government forces—a country that enshrined the Fourth Amendment in the Bill of Rights and revered and protected the age-old notion that the home is a place of privacy and sanctuary—to a country where it has become acceptable for armed government agents dressed in battle garb to storm private homes in the middle of the night—not to apprehend violent fugitives or thwart terrorist attacks, but to enforce laws against nonviolent, consensual activities?
Bad cops are the product of bad policy. And policy is ultimately made by politicians. A bad system loaded with bad incentives will unfailingly produce bad cops.
John Adams in particular was a fan of Cicero, who spent much of his public life warning of the dangers of militarism and dictatorship—and was eventually murdered for it. The American forefathers were keenly aware of the price that Rome paid by permitting the military to gain such power in their society, and they generally sought to avoid its mistakes.
in ancient Rome, the public was acutely sensitive to the threat of militarized policing. Prior to Caesar’s march on Rome in 49 BC, soldiers were forbidden to enter the capital as soldiers. There had never been a permanent standing army within the city.
About 1,800 years would pass before the world would see another metropolitan police force as centralized and organized as those that Augustus first established in Rome.
Groups of ten tythings were then grouped into larger units called shires. To keep order in the shires, the Crown appointed a representative called a reeve, a position usually filled by one of the shire’s own residents. The position came to be called the shire reeve, the source of our modern word sheriff.
The English system also benefited from its adherence to common law rather than Roman law. Because the objective of common law is dispute resolution rather than enforcing the will of the sovereign, it offers more protection of individual rights.
Put simply, the Castle Doctrine holds that “a man’s home is his castle.” But it springs from an older, much broader sentiment that the home should be protected as a place of refuge, peace, and sanctuary.
the US Supreme Court still recognizes the Castle Doctrine, thanks to the modern drug war the Court has all but abandoned this idea that the doctrine should protect homeowners from unnecessary violence—which has historically been the entire reason for its existence.
it was the general warrant that infuriated the colonists. General warrants lack specificity. They grant broad authority to search broad groups of people, for evidence of any number of crimes, sometimes over long stretches of time.
In 1791 the Castle Doctrine was enshrined in the US Constitution when the Fourth Amendment was ratified with the rest of the Bill of Rights. The Fourth Amendment prohibits general warrants at the federal level (the prohibition would later be extended to the states through the Fourteenth Amendment)
Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. The policy was reminiscent of today’s civil asset forfeiture laws, which allow police to seize and keep for their departments cash, cars, luxury goods, and even homes, often under only the thinnest allegation of criminality.
AFTER THE AMERICAN REVOLUTION, THE LEADERS OF THE new American republic had some difficult decisions to make. They debated whether the abuses that British soldiers had visited upon colonial America were attributable to quartering alone or to the general aura of militarism that came with maintaining standing armies in peacetime
Ultimately, the Founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens.
For the first half-century or so after ratification of the Constitution, military troops were rarely if ever used for routine law enforcement.
A major barrier had come down: the federal military could now be routinely used to enforce federal law. And it happened not by way of a constitutional amendment, or a vote from an elected Congress, or even a Supreme Court decision, but after an opinion issued by a US attorney general.
The mass deployment of troops in the South was made possible by a series of laws called the Force Acts. The first law, passed by Congress in 1870, made it a federal crime to use threats, force, intimidation, or bribery to keep someone from voting based on race or prior status as a slave.
the disputed presidential election of 1876 put an end to all of that. No candidate won a majority of electoral votes, so the election was decided by a backroom deal between Republican and Democratic leaders. Republican Rutherford B. Hayes emerged as the president-elect in a deal that required him to pull federal troops out of the South, effectively ending Reconstruction.
In many jurisdictions—most notably Charleston, South Carolina—slave patrols would eventually morph into the official police force.
THE FIRST MODERN POLICE FORCE AS WE KNOW IT TODAY WAS created in 1829 in London by Sir Robert Peel. He and his father had been pushing the idea for decades, but British concerns over the nation’s civil liberties tradition had repeatedly killed the idea. Concerned about the worsening conditions in the city, Parliament finally gave its approval in 1829, but only after Peel put in place assurances and checks to retain some local control over the force and ensure that police officers’ responsibilities were limited to fighting crime and protecting individual rights—his task was to convince the city
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The first modern-style police department in the United States was established in New York in 1845. Boston and Philadelphia soon followed. New York began its experiment with eight hundred policemen. Fearing that the London force was already too much like an army, the New York cops began their patrols unarmed, and without uniforms.
Since ward leaders were elected, they found they could pressure local commanders to prioritize police duties in ways that would help get them reelected. In some neighborhoods, police officers ran soup kitchens and homeless people were given shelter in police stations to sleep. This democratic style of policing also gave police (or more accurately, their commanders) discretion to enforce laws in ways that reflected the priorities of the communities they patrolled.
Ironically, the more centralized, less democratic London model proved to be more protective of individual rights than early American police departments. Centralization allowed Peel to set high, consistent hiring standards based on merit.
With no training or standards, and with jobs based on patronage more than merit, the police in America were best known for corruption, brutality, and incompetence.
In legal markets, businesses compete by providing a better product, a less expensive product, or better customer service. In black markets, they compete by warring over turf. Disputes are settled with guns, not in courtrooms. As the bootleggers obtained bigger guns to war with one another, law enforcement agencies felt that they needed bigger guns to go after the criminals. In larger cities, the ensuing arms race produced heavily armed police forces.
the Volstead Act didn’t criminalize the possession or consumption of alcohol, only its production and sale. So the feds could raid speakeasies, but they couldn’t raid a home based on a tip that someone had a cupboard full of gin—unless they suspected there was a distillery inside.
While the professionalism reformers were able to end the patronage system, in some cities they managed to insulate police departments from politics altogether, making it difficult for mayors and city councils to hold police officials accountable. At the level of individual cops, the use of squad cars and radios clearly brought a lot of benefits, but could also isolate police officers from the residents of the communities they patrolled. Cops out walking beats could chat with citizens, form relationships, and become a part of the community. Squad cars gave cops a faceless and intimidating
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THERE ARE TWO FORMS OF POLICE MILITARIZATION: DIRECT and indirect. Direct militarization is the use of the standing military for domestic policing. Indirect militarization happens when police agencies and police officers take on more and more characteristics of an army.
One of the more significant policies to move the country toward direct militarization was the Militia Act of 1903—sometimes called the National Guard Act.
militias were also sometimes called into war. In fact, the 1903 law was a response to widespread sentiment that the militias had performed poorly during the Spanish-American War. The new law took what remained of the state militias and converted them into what is today the National Guard.
The biggest threat to the Symbolic Third Amendment today comes from indirect militarization. Instead of allowing our soldiers to serve as cops, we’re turning our cops into soldiers. It’s a threat that the Founders didn’t anticipate, that nearly all politicians support, and that much of the public either seems to support or just hasn’t given much attention. No one made a decision to militarize the police in America. The change has come slowly, the result of a generation of politicians and public officials fanning and exploiting public fears by declaring war on abstractions like crime, drug use,
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Justice Brennan was in the minority in Ker, and his dissent bristled with indignation. He began with a thorough history of the Castle Doctrine, even quoting James Otis. He made the point that the writs of assistance that helped inspire the American Revolution were less odious, in at least a couple of ways, than the search of George Ker: such writs could only be served in daylight hours, and they required a knock and announcement before entry.
His first point is that to allow an exception for the possible destruction of evidence or out of fear for the safety of police officers is to “do obvious violence to the presumption of innocence.” In fact, Brennan writes, allowing for those exceptions violates the presumption of innocence twice: first by assuming the suspect is guilty of the crime for which he is suspected,
“The recognition of exceptions to great principles always creates, of course, the hazard that the exceptions will devour the rule,” Brennan writes.
The exceptions would be expanded to the point where, perversely, the Court’s interpretation of the Fourth Amendment in regard to the knock-and-announce rule would put more emphasis on preserving evidence and protecting law enforcement than on the Castle Doctrine and protecting the home from violence.
IN SEPTEMBER 1953, PRESIDENT DWIGHT EISENHOWER nominated Earl Warren to be chief justice of the Supreme Court. He’d later call it one of his greatest mistakes. Warren was a former district attorney, attorney general, and three-term governor of California. He was also the federal official who oversaw the internment of Japanese Americans in California during World War II.
The Court ruled that the Fourth Amendment’s protection from unreasonable search and seizures applies to the states through the Fourteenth Amendment. And under the 1914 case Weeks v. United States, evidence seized in an illegal search could not be used at trial. Police in every jurisdiction in the country were now obligated to uphold the Fourth Amendment.
The famous Miranda decision came in 1966, which held that police must notify suspects of their Fifth Amendment rights against self-incrimination, and to be represented by an attorney.19 The decision was widely derided by conservatives. It wasn’t particularly popular with the general public either.
28 In one of the notes he left behind, Whitman asked that his brain be studied to explain the onset of his violent urges. Doctors found an aggressive brain tumor growing in Whitman’s hypothalamus. The tumor was compressing an area of the brain in the hypothalamus known as the amygdala, which regulates primal emotions like fear and anger.
In the magazine The Tactical Edge—a publication marketed to SWAT teams—Lt. Sid Heal of the LA County Sheriff’s Department writes that the Whitman shootings “marked the birth date of the modern police SWAT concept. Since that day, almost every police department in the United States has formed a special response team to handle similar situations.”31
The United States had long taken a federalist approach to law enforcement. Except for offenses involving the mail, bank robbers, and crossing those state borders, the power to make crime policy had been reserved to the states. Johnson’s successors would quickly discover that introducing a funding spigot like LEAA, then threatening to pull it away, was an effective way to persuade local police agencies to adopt their preferred policies.
“Law enforcement is just like any other interest group,” Santarelli says. “They’re always after greater power. There was a sense that they needed to capitalize on these historic events. And I think there was a real willingness on the part of the public to give them whatever powers they sought.”56
They decided that the high-profile target of the new administration’s promised anticrime effort would be drug control. Drug use, they thought, was the common denominator among the groups—low-income blacks, the counterculture, and the antiwar movement—against whom Nixon had unified “ignored America.” Because the drug trade crossed both state and international borders, there were also no federalism issues.
Since the Harrison Narcotics Act of 1913, the federal government’s authority to regulate illicit drugs had mostly been limited to the power to tax them. But in 1969 the Supreme Court struck down the Marijuana Tax Act in a case involving the counterculture icon Timothy Leary. Dodd’s bill took a new strategy. Instead of trying to prohibit illicit drugs by taxing them, Dodd’s bill gave the Justice Department a wide range of new powers to directly enforce federal drug prohibition under the authority of the Constitution’s Commerce Clause.
in the 1942 case Wickard v. Filburn, in which the Court ruled that the Commerce Clause gives Congress the authority to impose quotas on the amount of wheat a farmer can grow on his own land, even if he’s only growing the wheat for his own use.11 The Court’s rationale was that the wheat the farmer grows for himself is wheat he isn’t purchasing on the market, thus affecting interstate commerce.
But cracking down on dealers opened the city up to turf wars. In one ten-day stretch in June, Detroit logged forty murders.28 It was one of the first examples of the sort of self-perpetuating, self-escalating feedback loop created by the modern drug war.
As Time reported, when Wilson publicly criticized his own officers for their aggressive response to protest a couple months after he took office, the police union passed a resolution criticizing Wilson for not backing his men. His response: “I don’t stand behind my men, I stand in front of them.”
“You couldn’t flush much pot down a toilet anyway. Cocaine or heroin, you could flush a good amount. But then it was gone—off the street. They [no-knock proponents] wanted to make sure the evidence was preserved to get a conviction. But a drug conviction just wasn’t worth the risk of a no-knock raid.”
The White House needed something tangible to tout to the public. If they couldn’t use actual crime data to show their initiatives were working, perhaps they could just create their own impressive statistics by generating lots of arrests and convictions at the federal level. The journalist Edward Jay Epstein writes, “[Nixon] reminded Ehrlichman and Krogh that there was only one area in which the federal police could produce such results on demand—and that was narcotics.”
