Rise of the Warrior Cop Page 2

  This story of police militarization in America begins with lessons from ancient Rome, then moves quickly through the Dark and Middle Ages into the origins of modern policing. We examine the foundations of the American experiment laid down during the colonial period and the American Revolution—the right to privacy, the Castle Doctrine, and the demilitarization of free societies—then look at the emergence of the modern, centralized police department in the early nineteenth century. After quickly passing through the Progressive Era, the professionalization movement, and alcohol prohibition, we come to the real beginning of the story of modern police militarization: the social upheaval, civil unrest, and culture wars of the 1960s. At that point the book becomes a more focused narrative. We follow the militarization trend through Nixon’s rhetorical wars on crime and drugs in the 1970s, Reagan’s all-too-literal drug war of the 1980s, and the massive expansion of SWAT teams, the proliferation of military gear, and the federalization of policing in the 1990s. The final chronological chapter looks at how the war on terrorism has accelerated the militarization of the police, how SWAT teams and the paramilitary approach to policing have moved beyond the wars on drugs and terror, and how frighteningly willing the government has become to use this sort of force to make a political statement. The book ends with a chapter on reforms and recommendations on how to roll back the militarization of policing in America; and whether any meaningful reform is still possible.

  CHAPTER 1

  FROM ROME TO WRITS

  Quis custodiet ipsos custodes? (Who will watch the watchers?)

  —JUVENAL, FIRST-CENTURY ROMAN POET

  Given that most of the American Founders were students of the Enlightenment and its revival of classical learning, most of them looked fondly on the Roman republic and drew lessons from the rise and fall of the Roman empire. Alexander Hamilton, James Madison, and John Jay, for example, wrote the Federalist Papers under the pen name “Publius” in honor of the first consul of the Roman republic, and one of the revolutionaries who overthrew the monarchy. 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.

  It seems fitting then that the world’s first documented, organized police force would have been established in ancient Rome. And the rise of that ancient police force raised many of the same questions about balancing security with liberty that we debate today.

  After Julius Caesar was assassinated in 44 BC, Rome fell into chaos as the empire’s powerful factions maneuvered to seize power. Anticipating bloodshed, faction leaders began to pull elite troops from their armies to serve as bodyguards. These guard units came to be called praetorian cohorts, after the praetoria cohors who guarded the tents of Roman generals during war. By the end of the reign of Emperor Augustus, and for the next several centuries, the Praetorian Guard would take on more of the roles we now associate with a conventional police force, including investigating serious crimes, making arrests, providing security during Coliseum games, collecting taxes, spying on suspected revolutionaries, collecting undercover intelligence, and even fighting fires.

  During his reign, Augustus established two other policing forces less prestigious than the Praetorians. Around 13 BC he created the cohortes urbanae, or urban cohorts, which he charged with quelling riots and keeping order in the streets. And in AD 6 he created an additional order called the vigiles. First charged exclusively with fighting fires, the vigiles would also later take on police duties and came to serve as Rome’s night watchmen.

  Augustus’s Praetorian Guard would eventually become one of the most powerful institutions in Rome. In later years the Guard’s loyalty often determined who would become the next emperor, and its members may have assassinated as many as a dozen Roman emperors and many more potential heirs.

  The interesting thing about Augustus’s first police forces is that to implement them he had to navigate some of the same challenges and objections to civic policing that arise today. He had to balance public safety and the maintenance of order by at least appearing to respect civil liberties. More importantly, he had to find ways to assure the Senate and the citizenry that the responsibilities of these bands of order-keeping public servants, all drawn from the Roman army, were distinct from the duties that Romans normally associated with soldiers.

  Even 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. It was Caesar’s crossing of the Rubicon, the city’s outer boundary, with his army that triggered the civil war that ended the republic.

  After Augustus, the Praetorian Guard became an increasingly powerful force in the upper echelons of Roman power. As conquest and empire became central tenets of Roman society, the day-to-day lives of Romans became infused with militarism. Soldiers and generals began to be held in higher esteem than scholars and statesmen. The Praetorian Guard outgrew its consignment under Augustus to civilian policing and was reconnected with the Roman army. Eventually, the Guard directly interfered with the succession of emperors, sowing further instability. The Praetorian Guard was finally disbanded by Emperor Constantine in AD 312. Its members had made the mistake of backing his opponent. 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.

  There are also some broader parallels between Rome and the establishment of policing in the modern world. During the Roman republic, disputes were settled between and within families. Criminals were often punished by their own relatives, who faced social pressure to make right by victims and their kin. But under Augustus the state began to take on a much larger role in these traditionally private and provincial affairs. As Rome was transformed from republic to empire, dispute resolution, punishment, and remuneration, which had once been handled privately, fell exclusively to the emperor’s executive power. As we will see, Britain and the early United States went through a similar transition centuries later. In the United States, the colonial-era concerns about standing armies gave way to more immediate problems like crime and rioting as the country moved into the industrial age. Cities turned to centralized power—police agencies reporting to the mayor—to impose law and order.1

  IN THE YEARS THAT FOLLOWED ROME’S FALL, ORGANIZED policing largely disappeared from Europe. One exception were the few cities in Italy that became hubs of trade and culture. As they grew, cities like Florence and Venice had to contend with urban issues of crime, poverty, and disease. To keep order—which kept the trade flowing—leaders established patrols to protect the property of businesses, tradesmen, and manufacturers and to enforce curfews during outbreaks.

  By the Middle Ages, a nationalized police force had emerged in France, though more as an effort to protect the monarchy from revolt than to protect the citizens from crime. Maintaining the existing order was the only priority; civil liberties were of little concern.

  The English tradition was different. Because of its isolation, England was relatively more stable than continental Europe during the Dark and Middle Ages. It didn’t face the constant threat of revolution. Ruling regimes in other parts of Europe had to maintain order by suppressing dissent and keeping the public from posing a threat to them. In Britain, preserving order meant protecting lives, rights, and property from thieves, vandals, and murderers. Consequently, the English benefited from an orientation toward local rather than centralized policing. Before the Norman Conquest of 1066, Britain was organized into tythings, groups of about ten families in a given geographical area who were expected to maintain peace and order on their land. If a member of a tything committed a crime, the group was expected to turn
the transgressor over to the king, or the tything would be punished as a group. 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. This mix of incentives for tythings enabled them to maintain order with a balance of liberty and accountability.

  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. English citizens’ ability to sue law enforcers who violated their rights was unheard of in countries with centralized policing forces. English trials were also governed by set rules of procedure—again, in stark contrast to the rest of Europe.

  Some of that began to change after the Norman Conquest. The Normans used the existing, traditional English structure to impose a more centralized system like those on the Continent. Sheriffs became more beholden to the Crown, and the Normans introduced the position of constable, which would come to replace the sheriff as the Crown’s preferred local law enforcement officer. Still, while the Normans made some important changes to the way British society kept order, the tradition of common-law rule, trials with set procedures, and individual rights was too ingrained to be overcome.

  As with imperial Rome and Italy in the Middle Ages, urbanization in England eventually created the need for a new system. By the fourteenth century, as England grew more populous and industrialized, the tything system grew less useful. Social pressure lost its effectiveness in keeping order as English citizens came to live closer together, next to neighbors they didn’t already know. In response, Parliament authorized the position of urban constable to keep order. Constables were permitted to draft citizen watchmen to patrol city streets at night and raise the “hue and cry” to call up all men between ages fifteen and sixty in the event of an emergency.

  By the early eighteenth century, England—and London in particular—had thoroughly outgrown its antiquated system of preserving order. London at the time held 10 percent of the country’s population within its city limits. The streets, overrun with highwaymen, pickpockets, and burglars, were growing more dangerous. The constables and their deputies were overworked and easily corrupted. In more affluent areas magistrates could afford to hire thief takers—freelance crime fighters who would capture crooks in exchange for a bounty—but crime persisted, and British officials would soon be forced to look for a better solution.2

  THE AMERICAN EXPERIENCE WAS SHAPED BY THE LESSONS from the classical period, by Enlightenment ideas about the proper relationship between the people and the state, by English common law, and of course by the colonists’ direct experience with British rule. Among the most crucial concepts inherited from these traditions was a term that has since lost a great deal of its original meaning: the Castle Doctrine. When used today, the term is most often associated with the gun control debate, but it means a great deal more to the impulses that shaped our national ideas about privacy, liberty, and the proper relationship between the individual and the state. Ironically, America both inherited the Castle Doctrine from British common law and was moved to revolution in part by Britain’s refusal to honor the principle in the colonies.

  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. One of the earliest recorded pronouncements of the idea came from the Roman statesman Cicero: “Quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?” (What more sacred, what more strongly guarded by every holy feeling, than a man’s own home?)3 Implicit in the sentiment is not only the right to repel criminal intruders but also the idea that the state is permitted to violate the home’s sanctity only under limited circumstances, only as a last resort, and only under conditions that protect the threshold from unnecessary violence. Thus, before entering without permission, government agents must knock, announce and identify themselves, state their purpose, and give the occupants the opportunity to let them in peacefully. The Castle Doctrine establishes the home as a sanctum in which a citizen can expect to be let alone, a principle that the US Supreme Court justice Louis Brandeis called “the most comprehensive of rights, and the right most valued by civilized men.”4

  The Castle Doctrine was probably first formally invoked in common law in Semayne’s Case in 1572; it has been a right recognized and protected by British law ever since.5 In 1762 the barrister and English legal scholar William Hawkins wrote, “Where one lies under a probable suspicion only, and is not indicted, it seems the better opinion at this day, that no one can justify breaking open doors in order to apprehend him.” Even among those commentators on English law who thought the king could break into a private home, it was generally accepted that he could do so only after knocking, announcing, and giving the residents time to grant entry and avoid violence. The seventeenth-century English judge and barrister Matthew Hale wrote, “But the breaking of an outer door is, in general, so violent, obnoxious, and dangerous a proceeding, that it should be adopted only in extreme cases, where an immediate arrest is requisite.”6

  The 1757 English trial of Richard Curtis litigated Castle Doctrine principles that would resurface in drug-related cases in the United States two centuries later. Curtis was charged with the murder of a sheriff who had come to his home with an arrest warrant and forced entry without first announcing himself. In his defense, Curtis argued that he had no way of knowing that the man breaking into his home was an officer of the law. The court sided with Curtis, ruling that peace officers could break open a door only “after having demanded admittance and given due notice of their warrant.” The subject of the warrant had to be given notice that “the officer cometh not as a mere trespasser, but claiming to act under a proper authority.”7

  The announcement requirement under English law was not a formality, as it has become in police raids carried out today. It was elemental. Its purpose was to give the homeowner the opportunity to avoid violence, distress, and the destruction of his property. A quick knock and announcement in the middle of the night, followed by forced entry ten to fifteen seconds later, before anyone inside can wake, come to the door, and peacefully grant the sheriff entrance, would be only slightly less offensive to the doctrine’s spirit than not knocking at all. As we’ll see, while 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.

  Not all English legal traditions were carried on in the United States, of course, but the evidence of the Founders’ reverence for the Castle Doctrine is overwhelming. When English authorities began to trample on the principle, the colonists were first moved to protest, then to try to protect themselves through their own courts and legislatures, and finally to openly revolt.

  THE REAL CONFRONTATION STARTED IN 1760, WHEN ENGLAND instituted a battery of unpopular taxes and import restrictions on the colonies. Many colonists took to smuggling to avoid paying new taxes on imported goods. The British then responded with heavy-handed laws to move against the smugglers. Then as now, the authorities were required to get warrants before searching private property. But 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.

  The variety of general warrant that Britain used to enforce the import and tax laws on the colonists was called the writ of assistance. The policy had been authorized by the British Parliament in the 1660s, but it was rarely used in England. Beginning in the 1760s, however, it became an
effective way to combat smugglers and tax scofflaws. Writs of assistance gave customs officials the power to enter private homes, search for smuggled or untaxed goods, and command other government officials and even private citizens to assist them.

  In some ways, the writs were less intrusive than today’s drug warrants. Writs could not be exercised at night, for example, and authorities still had to knock, announce, and allow sufficient time for residents to grant them entrance before breaking down a door. But in other ways writs of assistance granted government officials more sweeping powers than any warrant today. A writ-holder had the power to search any building or residence and confiscate any suspected contraband. And once issued, a writ was essentially permanent—it remained valid until six months after the death of the king in power when it was issued.

  The colonists despised the writs, particularly in port cities like Boston, the hub of revolutionary fervor. The Massachusetts legislature banned general warrants in 1756, but that prohibition didn’t stop the English from issuing and enforcing them. Aggrieved Bostonians soon found a champion in James Otis Jr., a blustery Boston attorney who had just resigned as advocate general of the Admiralty Court—the court with jurisdiction over the ships importing goods—in protest against the abuses wrought by the writs. When Otis resigned, began advocating against the writs, and offered free legal representation to anyone who wanted to challenge their legality, he attracted attention, in both Boston and London.8

  In 1761 Otis agreed to represent a group of prominent Boston merchants challenging the writs in Paxton’s Case. The case was likely to be a loser—British law was fairly settled on the matter—but Otis and the plaintiffs hoped to use the case to stir up opposition. When the trial came, Otis used the court proceedings as his platform to deliver an impassioned, wide-ranging, five-hour polemic against the practice of general warrants. In one passage he called writs of assistance “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.”