Commentary

How States Can Fix the Police

The events in Ferguson, Missouri and the death of Eric Garner from a police chokehold have brought needed attention to the long-simmering problem of an increasingly militarized, militant, and distant police force that, for many communities, seems more like an occupying army than an institution tasked with protecting and serving. President Obama’s task force on police militarization has tepidly suggested increasing oversight. More oversight is not a complete solution, but reviewing existing programs and practices, as well as providing funds for wearable cameras, can mitigate some abuses.

But there are no panaceas. The problems with our police are deep, and they can’t be fixed with top-down, federal oversight. States, municipalities, and communities should help fix our broken police forces by passing laws limiting how SWAT teams are used and by requiring departments to keep records of SWAT raids. Curbing SWAT team abuses is just one of many things that can help restore trust in the police and rebuild the vital link between officers and the community.

We must reassess the power and immunity police enjoy.

The baton-twirling Officer Friendly is a thing of the past, replaced by assault-rifle wielding Officer Rambo. Throughout the country, SWAT teams violently raid houses over 100 times each day. Since 1980, the number of SWAT raids has increased by 15 times, while the violent crime rate has dropped by nearly half. Rather than being called out to quell an active shooter or deal with a hostage situation, SWAT teams mostly execute search warrants for drug offenses. These raids are as violent and confrontational as any carried out by the U.S. Army in Iraq. Police batter down doors, shoot dogs, and toss flashbang grenades, all while wearing body armor and brandishing assault rifles.

When Congress began funneling military gear to local police departments, few people considered that it would change how police behave. There seems to be a “if we have it we might as well use it” attitude, particularly when SWAT teams have been used to raid barber shops to check for licensing compliance, to raid Gibson guitar company to check whether wood was properly imported, and to raid bars to investigate underage drinking.

Yet states have the power to limit how and when SWAT teams will be used. Laws can limit SWAT team deployments to truly high-risk situations posing an imminent threat to public safety. States should also clarify the process by which SWAT raids are approved, ensuring every deployment is sanctioned by a high-level official or supervisor. In deciding whether to authorize a deployment, officials should be required to assess whether children or the elderly might be present, whether forced entry should be used, and whether safer (for officers and citizens) and less violent alternatives would be preferable.

But constraining when SWAT teams are deployed is not enough. Transparency in the use of SWAT teams is equally important. Unfortunately, it is very difficult to get accurate information on how much SWAT teams are used, when they are used, whether and what criminal charges are filed, and whether any harm resulted to people, property, or pets.

In the wake of a 2008 raid on the home of the Cheye Calvo, the mayor of Berwyn Heights, Maryland, the state passed a trailblazing law requiring police departments to track how SWAT teams were used. A report found that, in 2014, Maryland SWAT teams were deployed an average of 4.5 times per day, and 93.1 percent of the time they were deployed to execute a search warrant. Almost 60 percent of those deployments were for nonviolent crimes, usually to serve search warrants on suspected drug offenders. Unfortunately, the Maryland law sunsetted in 2014 and it has yet to be re-passed, although many lawmakers have expressed a desire to reintroduce the law.

After a 2011 botched raid in which SWAT officers violently gunned down an army veteran who was growing 16 marijuana plants, Utah began looking at reforming police practices. Earlier this year, the state passed two laws to chip away at SWAT team abuses. One law requires officers making a forced entry to “use only that force which is reasonable and necessary to effectuate forcible entry” and to “minimize the risks of unnecessarily confrontational or invasive methods which may result in harm to any person.” Another law requires reporting on SWAT deployments, including whether a threat assessment was completed and whether an officer injured or killed a person or domestic animal.

Even in the absence of state legislation, communities should demand that police departments adopt policies limiting how SWAT teams are used. Again, deployments should be limited to truly dangerous situations that deserve a tactical, armed response. Serving warrants with SWAT teams should be generally avoided except in truly exceptional circumstances.

Finally, more states should follow the lead of Colorado and Washington and legalize marijuana. When it comes to police militarization, the drug war is the 800-pound gorilla in the room. Overall, the war on drugs has been the biggest single contributor to the militarization of police. The dramatic rise in drug raids shows how the war on drugs is in fact a war on citizens, and police are the soldiers in that war.

We must reassess the power and immunity police enjoy. Unfortunately, it takes situations like the unrest in Ferguson and the death of Eric Garner to bring the issue enough attention to make reform possible. Reforms like these will chip away at the divide grown between police officers and the citizens they are serving.

Trevor Burrus is a Research Fellow in the Cato Institute’s Center for Constitutional Studies.