Cops Exceeding Their Limits

November/​December 2014 • Policy Report

The August 9 shooting of teenager Michael Brown sparked days of protest in and around Ferguson, Missouri. Soon after, police cracked down with a controversial militarystyle response. “If a listener didn’t know any better, he would think the description of events unfolding in Ferguson must surely be taking place in Iraq or Afghanistan,” Tim Lynch, director of Cato’s Project on Criminal Justice, wrote on CNN​.com. “This is America, but it doesn’t look like it anymore.”

What has happened to police forces in the United States? This summer, a small sample of headlines from the major newspapers indicates the severity of the status quo: “War Gear Flows to Police Departments” (New York Times); “Stop and Seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes” (Washington Post); and “Chokehold Complaints Have Been Undercounted,” (Wall Street Journal). For decades, however, the Cato Institute has been drawing attention to each of these trends — from police militarization, to civil asset forfeiture, to general misconduct.

In 1999, Cato released a briefing paper called “Warrior Cops: The Ominous Growth of Paramilitarism in American Police Departments,” which revealed that the sharing of military training and technology with police departments was also producing a shared mindset. “Confusing the police function with the military function can lead to dangerous and unintended consequences,” the paper warned, “such as unnecessary shootings and killings.”

In 2006, Radley Balko, then a Cato policy analyst and currently a writer for the Washington Post opinion section (as well as a media fellow at the Institute), released “Overkill: The Rise of Paramilitary Police Raids in America.” The white paper was accompanied by a website in which Balko painstakingly catalogued dozens of examples of innocent people killed in these raids. “The war on drugs and, more recently, post‐​9/​11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop — armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties,” Balko writes in his 2013 book, Rise of the Warrior Cop.

Asset forfeiture has also become a major issue. Under state and federal law, police departments can seize and keep property that is suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime — or even charged — to permanently lose her cash, car, home, or other property. In 1994, Cato vice president Roger Pilon weighed in on this issue in the New York Law School Law Review. “Rooted in pre‐​modern authoritarianism, forfeiture looks at the world from the perspective of the state, then asks what needs to be done to bring about certain public ends, such as the reduction of crime, the end of drug use, whatever,” he wrote. “Lost or ignored in the process, too often, is the individual and his rights, which is inexcusable in a society dedicated to the individual.”

The following year, the Institute released a book, Forfeiting Our Property Rights, by the late Rep. Henry Hyde (R-IL), then chairman of the House Judiciary Committee. Even today, however, most state laws are written in such a way as to encourage police agents to pursue profit instead of seeking justice.

Given these trends, the first step should be transparency. To that end, the Institute launched PoliceMis​con​duct​.net in 2012. Cato’s researchers scan media reports each day to locate news stories on police abuse, recording those reports in a database and providing transparent data for public review. The purpose of the website is to determine the extent to which law enforcement officials exceed the limits of their authority. “We are simply trying to create a ruler with which we can measure police misconduct,” says Lynch, director of the site, “so that people can determine for themselves if it’s really a problem.”