LEGISLATURES THAT WON’T LEGISLATE
What makes policing unique—what defines it—is a government monopoly on the use of force and surveillance to enforce the law. When those awesome powers are used incorrectly, and things go wrong, the consequences can be devastating. Given the tragedy that policing can leave in its wake, it is troubling, to say the least, that so much of policing occurs without any clear rules or policies in place, let alone rules that are vetted publicly to make sure they are sensible and meet with popular approval. There’s a reason for this serious omission: it proves remarkably difficult to get legislators, who should be doing the job, to write rules for policing.
THE RAID
In late July 2008, Corporal Shawn Scarlata of the Narcotic Enforcement Division Interdiction Squad of the Prince George’s (PG) County, Maryland, police received a tip that a FedEx package containing nearly thirty pounds of marijuana had been sent to an address in Berwyn Heights, a small bedroom community just outside Washington, D.C.1
Because the package was sent FedEx Ground rather than via overnight air, Scarlata had some time to investigate. He drove by the address, finding a tidy brick home situated on a suburban street corner. He learned from vehicle registration and consumer database records that the house was owned by Trinity Tomsic—the addressee of the package—and a Cheye Calvo. Scarlata got a warrant to search the package once it arrived at FedEx. It did in fact contain drugs.2
So it was that on July 29, a SWAT team from the PG County Sheriff’s Office mustered at staging grounds near the Tomsic-Calvo residence. The plan was to have a police officer posing as a FedEx driver deliver the package. Once the package was inside, the narcotics team would get another warrant to enter and search the home.3
After Scarlata’s colleague Sergeant David Martini briefed the SWAT and narcotics teams, a detective attempted to deliver the package. The woman who came to the door explained she had some rambunctious dogs—they jumped against the screen door as this happened—and asked the detective to leave the package on the porch. There it sat for some fifteen minutes, till a man came out with two black Labrador retrievers on leashes.4
Conducting surveillance from a nearby vehicle, Martini watched the man walk the dogs up and down the street. Thinking there was something odd about the man’s actions—he was looking at a number of the cars on the street—Martini concluded he was engaged in “counter-surveillance.” Martini and the man actually made eye contact with each other, at which point Martini waved and said hello. Returning with the dogs, the man picked up the package on the porch and brought it inside the house. Once the package was inside, a judge issued a warrant to enter the residence.5
The SWAT team set off decked out in full battle gear—black hoods, protective goggles, Kevlar helmets, bullet-resistant SWAT vests—carrying a battering ram, bullet-resistant body shields, MP5 and M16 submachine guns, and Glock 23 .40-caliber handguns. Corporal Wilbert Yarbrough, Jr., led the five-man team around the back of the house, at which point a middle-aged woman in the kitchen spotted them. Team members screamed “Sheriff’s office” and pointed a submachine gun at her. Through the window they could see she was plainly alarmed and appeared to be screaming.6
Concluding that they were “compromised” by having been seen by the woman, Yarbrough decided to take his men in through the front door. Despite having been issued a knock-and-announce warrant, which required the officers to knock on the door and give the residents time to answer it, the team’s two “breachers” simply burst the door down with the battering ram. Entering, the team immediately spied the woman, who turned out to be Georgia Porter, Tomsic’s mother, cooking at a frying pan in the kitchen. (She was making tomato sauce.) Pointing their submachine guns at her, they ordered Porter to the floor. Paralyzed, she failed to follow instructions and was taken to the ground, handcuffed, and physically searched.7
Before the men could get to Porter the dogs appeared, barking. The officers said they were showing their teeth and advancing. Yarbrough shot the older dog, Payton, named after legendary running back Walter Payton, twice in the chest. When Payton looked to the officers to still be coming at them, Corporal Edward Sagin shot him through the head. Chase—the younger, more timid Lab—ran off, clearly terrified.8
While Sagin was securing Porter in the kitchen, Chase ran back in. Both dog and Sagin were “startled” to see each other; the dog immediately turned tail and ran away. Sagin then heard more shots—Chase had been shot as well, likely while he was fleeing.9
Cheye (pronounced “shy”) Calvo was upstairs changing into business clothes for an evening meeting when he was startled by the events below. Hearing the police say they were coming upstairs, he shouted “Please don’t shoot!” The SWAT team ordered Calvo to walk backward down the stairs with his hands up—not an easy task. Then Calvo, too, was taken to the ground, his hands bound in plastic cuffs behind his back. He was wearing only boxer shorts.10
Shortly thereafter, Trinity Tomsic returned home from her job with the Maryland State government as a finance officer. Told what had happened—house raided, husband and mother cuffed, dogs shot and killed—she became hysterical. Although hers was the name on the FedEx package, she was never restrained.11
Calvo and Georgia Porter remained bound for two hours while the Drug Interdiction Unit ransacked the entire house seeking evidence of drug dealing. They tracked the dogs’ blood all over. Calvo was moved to the kitchen, within sight of one of his dogs’ dead bodies. He asked Scarlata to remove the cuffs, saying they’d been set up; no one at his house was responsible for the drugs. Scarlata refused. He deemed Calvo a risk sitting among the kitchen knives—where Scarlata, oddly, had kept him—because he was “emotionally erratic.” This was based on the fact that Calvo had expressed anger at his dogs being shot, wept when Animal Control carried the dogs’ bodies off, and otherwise tried to reason with the officers. (Martini, on the other hand, testified Calvo was too “calm” for someone who was innocent and had just had his dogs shot.)12
There was an exuberant moment when the drug team thought they’d found something; it turned out to be $68 in cash in an envelope marked “yard sale.”13
Scarlata eventually concluded there was a good chance no one at the house was guilty of anything. This was not so crazy. PG County officers, including both Sagin and Martini, were well aware that drug dealers were mailing parcels to innocent people—sometimes fake addressees, sometimes real ones—and then grabbing the packages off the porches before they were picked up.14
And so the police traipsed out, leaving Calvo and Tomsic to deal with their shattered home and lives. They did their best to restore order, mopping the dogs’ blood, replacing belongings strewn throughout. The front door had been knocked off its hinges; the couple spent the night on an air mattress downstairs, worried that a drug dealer might show up for the marijuana. The police neither apologized nor offered to help.15
A couple days later, Scarlata arrested the FedEx contract driver—two of them, actually—for delivering more than four hundred pounds of marijuana in two separate drug-dealing conspiracies. Neither was ever charged; they “cooperated” and helped the police track down the people actually dealing the drugs.16
Despite the arrest of the FedEx driver who would have delivered the parcel to the Tomsic-Calvo residence, Maryland state officials were slow to clear Calvo’s name. They told the media that he and his family were “persons of interest.” PG County Police Chief Melvin High, who came under fire for the raid, justified it thus: “In some quarters this has been viewed as a flawed police operation … which it is not. This is about an address; this was about a name on a package.”17
“JUST DOING THE ORDINARY”
And there the matter would have rested, as it does with so many SWAT raids gone bad, were it not for one other fact the police learned while Calvo was subdued in handcuffs and boxer shorts: he was the mayor of Berwyn Heights. Scarlata said it didn’t matter, he would not have done anything differently if he had known; plenty of politicians, he said, are corrupted by drugs.18
It turned out it did matter, though, because Calvo had both the need and the means to do something about it. Calvo’s an earnest, tall, good-looking guy with a wry sense of humor. And by his own account, he’s a policy wonk. In addition to being Berwyn Heights’s mayor, a part-time job he does for one hundred and fifty bucks a month, he’s worked full-time for years on government and policy issues. As the police continued to refuse to concede his innocence, Calvo decided early on that he had to get on top of the story. And Trinity and Cheye found that to move on with their lives they needed to understand why their beloved pets were murdered and the serenity of their home invaded by heavily armed men who happened to work for the government. So policy wonk Calvo, who to this point didn’t have much knowledge about SWAT practices, set about understanding.19
What Calvo learned was that, much to his surprise, there was nothing special about him—the sort of thing that he and Trinity and her mother, Georgia, experienced was all too common, routine even. Lying on the floor at the bottom of the stairs, in the early moments of chaos, Calvo’s thought was that there had been some “terrible mistake.” But in a speech afterward, to New Hampshire’s Liberty Alliance, Calvo explained that he was wrong. “It wasn’t a mistake. It was, in fact, business as usual.” “They were just doing their jobs … They were just doing the ordinary.”20
In the last few decades, highly militarized SWAT teams have spread like kudzu throughout the United States. SWAT—short for Special Weapons and Tactics—was the brainchild of Daryl Gates, then a commander of the Los Angeles Police Department, and later the LAPD’s chief. Faced with urban turmoil in the 1960s, what seemed to him guerrilla warfare, Gates consulted veterans back from Vietnam, and implemented the SWAT concept. For two decades such teams were few, and their mission limited, but then the federal money spigot opened in the 1980s in the war on drugs, and the Department of Defense started giving civilian forces military equipment and training like chocolate bars to the kids of countries they’d invaded. By the mid-2000s, nearly 80 percent of small towns had SWAT teams, and as of the late 1990s, nearly 90 percent of large cities had them. In fact, the reason the PG County Sheriff’s team was used was that the PG County Police team already was busy when Scarlata needed them, and so was another local team.21
It’s hard to justify having a SWAT team if you aren’t going to use it, which is why today SWAT raids are as common as breakfast cereal. In the early days SWAT teams were reserved for the exceptional: barricades, hostage takings, hijackings, prison escapes. Now they mobilize as many as 50,000 to 80,000 times a year. They mostly get called out to serve warrants, what the ordinary police used to do. In the entire state of Maryland, 93 percent of SWAT deployments in 2014 were for serving search warrants. It was standard operating procedure in PG County to serve narcotics warrants with a SWAT team. Scarlata testified he did this routine an average of three times a week; the PG County Police Department’s SWAT team does more than one mission a day. It’s good business for the cops, because under current forfeiture laws, the police departments get to keep a chunk of the drug proceeds they rake in. In a recent year, Prince George’s County’s budget showed at least $2.5 million dollars of drug money.22
It stands to reason that when you multiply SWAT teams like this, there’s the risk that talent will drop and training will suffer. These guys were not the Navy SEALs. The Prince George’s Sheriff’s SWAT team had been formed because a bunch of officers lobbied hard for it, plainly finding it more exciting than the work they were doing guarding war memorials and serving eviction notices. Some of them had spent frustrated years stocking inventory or working as security guards before they even got on the force. They were hungry to do something sexier. They attended a two- or three-week “basic SWAT school: [e]ntry, room clearing … the range, gas deployment … [d]iversionary flash bang,” and not a lot beyond that. The briefing for the Tomsic-Calvo mission was all of ten minutes. Corporal Yarbrough, who fired the first two shots into Payton’s chest, could not even recite the use-of-force continuum that strictly governs how police are to deal with escalating violence by civilians.23
When heavily armed forces are tasked with domestic policing, a military mind-set takes over. Cheye Calvo was not a person walking his dogs, curious why there were unfamiliar cars on his street; he was conducting “counter-surveillance.” Georgia Porter was not a woman cooking dinner for her family; she was a “suspect” who had to be “secured.” She did not look up from her stove, terrified at the sight of a squadron of armed men racing at her; she “compromised” the team, threatening their “objective.” Officer safety is paramount, as perhaps it should be, but so too is the “operation.” Testified Sagin: “The team’s flow into the house cannot be interrupted by human being or dog … If there is a threat, whether it be a dog or a human, the threat has to be taken care of.”24
It’s inevitable that things go wrong and people get hurt. Radley Balko, a journalist, author, and leading expert on militarization of the police, has an online raid map displaying all the SWAT missions gone bad. Law enforcement officers get shot by people believing they are intruders—they even get shot (and killed) by fellow officers. Civilians’ lives are shattered. In 1994, Boston’s seventy-five-year-old Reverend Accelyne Williams dropped dead when his home was invaded. In 2006, Jerry Agee of Elyria, Ohio, had his door shattered with a battering ram while he was cooking eggs, a mistake that left his girlfriend utterly humiliated. (“She was naked, and they didn’t even let her put nothing on,” Agee said. “I was mad because I felt like she was being violated.”) In 2008, Kristy Cohn of Woodhaven, Michigan, was dragged out of the shower and also forced to stand naked until police saw her engagement photo and realized they were in the wrong place. In January 2011, a SWAT team in Framingham, Massachusetts, killed a sixty-eight-year-old grandfather when an officer’s gun accidentally discharged during a raid. Officers had already arrested the suspect they were looking for—outside and without incident—but decided to proceed with the raid anyway. Later in 2011, a veteran of the war in Iraq was shot twenty-two times when he mistook a nighttime SWAT raid for a burglary; the team had conducted several raids that night and ultimately turned up a small bag of marijuana in a different house.25
And yet the cops sometimes can be remarkably blasé about the whole thing. Calvo was right: what seems extraordinary, chilling even, to us “civilians” is just business as usual to the police. Scarlata was asked why he didn’t conduct more investigation before sending a SWAT team into the Tomsic-Calvo residence, why he didn’t even google the name Cheye Calvo. Scarlata’s reply: the SWAT invasion was his investigation. “In order for me to determine if the recipient of the parcel … is involved or not involved,” and to “gather evidence … in a manner that is safe to the officers … that is the technique and tool that I use … And I don’t know another way that I could have done that without utilizing that tool.” When Sagin was questioned about why he shot at the dogs, he explained, “[T]here was no time for me to transition from my submachine gun to using pepper spray.” But—Calvo’s lawyer followed up—what about Georgia Porter, who was in the line of fire—what was done to protect her? Responded Sagin: “That wasn’t an option.”26
The question we all need to be asking is why it’s business as usual for government forces, using urban warfare tactics, to be bursting into American homes some fifty thousand times a year. Why are police regularly executing warrants by battering down doors, using diversionary flash-bang grenades, and carrying weaponry well beyond what the job plausibly requires in most instances? What’s occurring in large- and small-town America, says Calvo, too often looks like footage from a “war zone,” from “Afghanistan or Iraq.”27
A FAILURE OF OVERSIGHT
There’s a reason this is happening, and Cheye Calvo, after all his investigation, was able to put his finger right on it. It wasn’t the cops’ fault, he decided. As much as he wanted to, he could not hate them or blame them; they were just doing their jobs. Rather, the problem was a complete failure of “leadership,” of “oversight.”28
The mistake we make, Calvo concluded, is that we “rely on the police to oversee themselves.” We only get involved after the fact, to “blame someone, or fire someone.” Our goal, he suggested, should not be “to get people who do things that are bad”; it should be to “prevent them from doing things that are bad” in the first place. And to do that we need to “challeng[e] the police, not because they are bad people, [but] because we live in a place where government working successfully is based on checks and balances.”29
In leaving the police “to oversee themselves” we abandon time-honored checks and balances, and thus violate the most bedrock principle of democratic governance. We are given to saying that we have a government of laws, not of men. These words were penned by John Adams, who enshrined them in the Massachusetts Constitution of 1780. While the phrase was catchy, the idea was common. Common Sense, even. In the revolutionary pamphlet by that very name, Thomas Paine explained, “[I]n America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”30
Making the law king, rather than the other way around, means having rules in place—instructions, if you will—telling those who run things what they may and may not do. Consider the familiar slogans of democracy, things like government must rest on the “consent of the governed” or “officials are accountable to the people.” These things can’t happen without rules—public, democratically approved rules—telling those who police us what is in and what is out.31
From matters as mundane as getting a driver’s license to more complex ones such as curtailing greenhouse gases, America is governed by rules. Government officials cannot act without reasonably clear legislative authorization. If the legislature delegates power to those officials, they must develop their own rules—rules we can all read and see, comment on and challenge—regarding how they will exercise their power. Absent some unanticipated emergency, the rules must be put in place in advance of action, not offered as post hoc explanations, so that we—and courts—can measure what the officials did against the yardstick of what they were told they could do and what they said they would do. This is what it means to be a government of laws, in which officials are accountable to the people they serve.32
Yet ironically, when it comes to policing, we have forsaken this very basic principle. Ironically, because policing—the use of force and surveillance to govern society—is the most grave and threatening of all the governmental functions. That much should be clear by now. If the person who issues driver’s licenses gets out of line, it is not likely to destroy anyone’s life. There’s time to correct things. But not so with policing. The use of force and coercion, surveillance and spying, these are serious, serious matters. And yet, of all of government, we have left police agencies, which utilize these weapons on a regular basis, to do as they wish without publicly vetted rules.
Although there are of course some statutes in place, overall there is remarkably little legislative direction for America’s policing officials. The typical enabling statute of a policing agency simply authorizes it to enforce the criminal laws on the books in the broadest of terms, saying little or nothing about what methods the police are permitted to use in doing so. Take the FBI. A federal statute creates a Bureau of Investigation within the Department of Justice and authorizes the Attorney General to appoint officers to “detect … crimes against the United States.” That is pretty much it. The New York City charter tells police to “preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs, and insurrections, disperse unlawful or dangerous assemblages [and] protect the rights of persons and property.” That’s awfully wide authority, and there’s not much additional legislative direction.33
What is needed is a thoughtful, thorough set of instructions telling police officers and agents how to exercise their incredibly broad discretion. Discretion’s an important and unavoidable part of policing, but it can and should be guided by rules. Can a cop set up a roadblock just anywhere? Or are there guidelines for when and where and how, and a chain of command for approval? Can anyone caught using drugs be flipped and turned into an informant? Or should there be limits on using juveniles, or putting people in harm’s way? When should SWAT teams be called out? How should they be trained and equipped?
What happened to Cheye Calvo—especially his two Labradors being shot—happened because of a gaping lack of government rule making. Although the team understood it was “common” for drug dealers to have “aggressive dogs,” there were no rules or instructions governing what to do. None of them had received any animal training. When the commander on the scene realized there were dogs present, he improvised, handing Sagin pepper spray. It was not standard issue. When these same guys were busy being regular PG County cops, they carried a variety of nonlethal force, such as pepper spray, batons, Tasers. It was regulation. But on the SWAT team there were no regulations, they made their own decisions about what to carry, and nonlethal tools were apparently not high on the list.34
Time and again during the depositions in the Calvo case, Cheye Calvo’s lawyer asked this question: Were there any “rules, regulations, policies, or general orders” governing what the officers did? His point was: Had anyone authorized what happened? Had anyone thought about it in advance and made rules to ensure things went properly, that people were not injured? And time and again the answer was no. No on the constant deployment of force to serve warrants on civilians; no on the training; no on the preparation to deal with animals; no on the equipment to be used.35
WHY THE BUCK GETS PASSED
It’s no accident that things are this way. It is not like we just forgot to adopt rules to govern policing. There are structural forces at work that cause us, as a society, to leave the police free to do as they will. At best we tell ourselves the courts are doing the job—though as we will see in the next chapter, they can’t and they don’t. So the police are left minding their own shop.
Legislatures avoid regulating the police because they don’t see any advantage in doing so. Consider matters from the perspective of your ordinary lawmaker. When legislators make laws, they create winners and losers. People who, come reelection time, will be friends or enemies. When deciding what legislative agenda to pursue—and what to leave alone—there is an ongoing calculus of how this is going to play at the polls.36
Legislative politics is all about being organized. The people who have something big at stake get together and lobby the legislature, letting them know what they’d like done—and what they’d like left alone. This lobbying process informs lawmakers of just which friends or enemies they are likely to be making if they pass a particular bill. As a consequence, the unorganized multitude sometimes takes it on the chin. That’s what people mean when they talk about “special interests” winning out.37
When it comes to policing, the most organized interests are the police themselves—and their close cousins, prosecutors. Police unions, in particular, are very powerful. When laws are proposed that affect policing, these groups jump into action. Prosecutors and police officials knock on lawmakers’ doors, or testify in legislative hearings. Their goal in lobbying is to be left alone to do their jobs: more power and less regulation. From the mission-driven perspective of police and prosecutors this only makes sense.38
On the other hand, the people affected by policing aren’t usually as organized—or organized at all. It’s no secret that the heaviest burden of aggressive policing falls disproportionately on the shoulders of minorities, on the less well-off. Those folks always struggle in the legislative process. But the problem goes well beyond that. You might think, “What happened to Calvo could happen to any of us.” It could. The problem is we don’t tend to think about that until after the fact, but by then it is too late.39
To the extent most people worry about policing at all, it usually is a generalized concern about being a crime victim. For the last fifty years or so—even at times when crime rates were falling—the bugaboo of American politics has been crime and the fear of crime. And so legislators have made their careers and ensured their continued tenure by being “tough on crime,” engaging in “zero tolerance,” and enacting laws like “three strikes and you’re out.” 40
Given societal fear of crime, you can see why lawmakers are reluctant to take steps that tie police hands. No one wants to go into an election with their opponent running ads saying they’ve been soft on crime.41 If legislators do something to regulate the police—even in the smallest of ways—and then something goes wrong, they are open to the charge that the latest horrific crime was their fault.42
After the raid on his house, Cheye Calvo actually managed to get passed the very mildest form of police regulation; the story of that law is an object lesson in all that is wrong here. Calvo, who had worked with the legislative process throughout his professional life, thought a good starting point would be a law requiring reports on how often SWAT teams mustered. Perhaps if that information were public, SWAT overuse would be kept in check, or the people would respond with some other measures. But it was a struggle getting even this baby step passed; law enforcement fought it tooth and nail. Eric Sterling, the head of the Criminal Justice Policy Foundation, noted that “[i]t took raiding the mayor and killing his dogs and their being completely innocent white people to get relatively minor legislative action … and there was [a] very decided knee-jerk law enforcement opposition to it.” That law isn’t even on the books anymore; it expired in 2014 and was not renewed.43 Apparently it was just too much for Maryland law enforcement to keep track of how many SWAT raids occur.
Some may shrug off legislative neglect of policing, arguing there is accountability in the system. Many sheriffs stand for election. Mayors or city councils can let their police chief go. The head of the FBI serves at the will of the president. The idea seems to be that if something is wrong with policing, these police officials will lose their jobs.44
In truth, though, this sort of electoral accountability only exacerbates the problem. Elected officials are the obvious targets of society’s anxiety about crime. If crime rates go up, the voters get angry, and mayors or other elected officials find their jobs in jeopardy. Thus, mayors sensibly take it as their job to hold down crime, and are likely to give the police free rein so long as that is the case.45
Rarely—rarely—is it the case that a mayor gets asked to toughen up on the police. In 2013, Bill de Blasio was elected mayor of New York, in an election that was very much about policing, particularly the use of stop-and-frisk on people of color. But how many elections can you think of in which the candidate ran against aggressive policing? Even in New York, it took years of media attention to the practices of the NYPD to get there. And de Blasio, as mayor, still needs the police. A year after his election, the country was treated to television images of ranks of police turning their backs on him, a problem he has had to work hard to remedy.46
All of us would prefer to avoid responsibility for what the police do. And most of us can be forgiven for just wanting to go to bed at night knowing our families are safe. For not asking a lot of questions.
The problem is that our elected officials aren’t doing the job of supervising the cops either. And while it may be that those officials would rather play the ostrich when it comes to policing issues, it also is completely unacceptable. It violates our most fundamental principles. And it is a large part of the reason for why things go wrong.
POLICE POLICING THE POLICE
There is another solution available: the police could make rules to govern themselves. That, actually, is the primary way that most executive agencies are brought within the rule of law. Legislatures are too busy to write all the rules that government needs to function. So they pass laws telling executive officials in broad strokes what they are supposed to accomplish, and delegate power to those officials to write their own rules.47
There would be some real advantages to police writing their own rules. Courts and legislatures often grant law enforcement officials deference based on their expertise; to the extent they possess it, they are in the best position to write rules for themselves. Besides, the police will be more inclined to follow their own rules. As one advocate for police rule-making put it years ago: “The police, organized in a semi-military tradition, work in that tradition’s responsiveness to going by the book, which is always less grudging if one has a role in writing the book.”48
There was one brief moment in this country’s history when the idea of police rule-making was fashionable. In the 1950s, amid complaints that policing was not doing its job, the American Bar Foundation—the research arm of the national lawyers’ organization, the American Bar Association—set out to study the problem, sending many researchers out into the field. But by the time the researchers were recalled to home base some thirteen weeks later for “clean-up” retraining, it was clear to everyone involved that everything they thought they knew about policing needed to be tossed in the trash. The first night out in the field in Milwaukee, the ABF investigator spent the night with on-duty cops drinking in bars. In Detroit, the investigator saw “police routinely breaking into buildings to obtain evidence or make arrests,” as well as “harassing homosexuals” and setting the “whore squad” loose on prostitutes. In Pontiac, Michigan, police officers were observed beating and severely injuring an African American who took pictures of them while bowling, as part of an Urban League effort to identify officers associated with “police brutality.” 49
Participants in the ABF study were surprised—one hardly can understand today how this was news—to learn that as police went about their daily duties, they exercised a tremendous amount of discretion. Contrary to the “top-down” image of professional policing so prominent in that period, it turned out the real rules were made “bottom-up” by patrol officers. This was confirmed in study after study that followed on the ABF project’s heels.50
Once discovered, the concern about police discretion continued unabated, playing prominently in the 1967 report of President Johnson’s Crime Commission, which suggested rule-making as the antidote. The Commission pointed out that “[f]ew legislatures and police administrators have defined in detail how and under what conditions certain police practices are to be used.” Thus, “[t]he need for legislative and administrative policies to guide police through the changing world of permissible activity is pressing.” The Commission recommended that “[p]olice departments should develop and enunciate polices that give police personnel specific guidance for the common situations requiring exercise of police discretion.”51
The notion that police forces must operate subject to rules quickly won prominent adherents. Noted academics and judges argued for police rule-making. Lawyers and criminologists at Boston University partnered with the Boston Police Department to draft and implement rules on various investigative procedures; a second group of academics at Arizona State worked with representatives from police departments across the country on still another model rules project. The American Law Institute and the American Bar Association both drafted sets of model rules and principles to guide the police.52
Ultimately, though, the rule-making movement fizzled. Part of the reason undoubtedly was that as crime rates continued to climb and the country took a more conservative turn after the Johnson years, arguments for more constraints on policing largely fell on deaf ears. But—for the reasons we’ve just seen—it turned out that no one was really motivated to govern policing, to insist that police be governed by rules, and to provide the resources necessary to make this happen. And so the problem of vast police discretion persists.53
To be clear, the police do have rules—one positive result of the rule-making moment is that police certainly have more than they did in the 1960s—but still it is not the comprehensive set of rules they should have. Police officials govern their forces with internal rule manuals, standard operating procedures, or what are called General Orders. Unfortunately, the whole process is pretty haphazard. Depending on what jurisdiction you’re in, there may be protocols on the use of force, on the storage and disposition of confiscated property, even on strip searches of arrestees—but then little or nothing on informants, consent searches, SWAT teams, or drones.54
It is not like each police force, from Podunk, Indiana, to Keokuck, Iowa, would have to write its own rule book. That would be an impossible burden on the more than 15,000 police forces in the United States, many with twenty-five officers or fewer. When legislatures come to passing statutes they often copy one another, or begin with model statutes drafted by reputable bodies such as the American Law Institute or the National Conference of Commissioners on Uniform State Laws. They then tailor those model laws to meet their own local needs. In the world of policing, there are similar policy-writing entities. While the rules drafted in the 1960s and 1970s are hopelessly out of date—and, to be honest, were often not the sort of rules easily implemented by police anyway—there still are model policies available on pressing issues. For example, when the use of drones came into vogue for the police, and became worrisome to communities, the International Association of Police Chiefs issued guidelines for adopting a drone policy, including soliciting community input, banning drones armed with any weaponry, and urging that images recorded by drones either be erased or made available for public scrutiny.55
Unfortunately, though, even when model rules are readily available, police often fail to adopt them because—again—there’s nothing making this happen. Take Tasers. In 2004, two Seattle police officers stopped Malaika Brooks for going twelve miles over the speed limit in a school zone. They wrote her a ticket, but she refused to sign it. Signing didn’t admit to anything except that she had received the ticket, but Brooks was either confused or just plain obstinate. She was also seven months pregnant, a fact of which she informed the officers when they decided to arrest her. After Brooks refused to get out of her car, and after they failed at physically removing her, the officers then actually had a side conversation about where best to use a Taser on a pregnant woman. Fortunately, they figured out the answer was not her stomach—so they shocked her on the leg and neck until she fell from the car, immobile. Much litigation ensued. All this could have been avoided: The Police Executive Research Forum, working in conjunction with the U.S. Department of Justice, has since drafted model Taser guidelines. Under those guidelines Brooks, pregnant and a passive resister, would not have been tased at all. But no one was compelling Seattle’s police to adopt a policy on the subject.56
THE WILL OF THE PEOPLE
Even when police forces do have rules, those rules still flunk the basic test of democratic accountability. If the police are deciding for themselves what to do, there is none of what Cheye Calvo referred to as “oversight.” We have no idea if what the police do is what the people would choose, given a choice as to how their society is policed.
The FBI is an excellent case in point. As we’ve seen, Congress has given the Bureau little in the way of formal legislative direction. But the Attorney General has stepped up, writing rules to govern what FBI agents can and cannot do: the Attorney General’s Guidelines for Domestic FBI Operations (AGG). Better yet, acting pursuant to those guidelines, the FBI has promulgated its own extremely detailed (maybe too detailed) rulebook, the Domestic Investigations and Operations Guide, or DIOG. And to its credit, even though the FBI has blacked out big portions of those rules, for the most part the DIOG itself is public. You can find it on the Internet.57
Just because you can read chunks of the rules governing the FBI, however, doesn’t mean that you get any say in what they do. And for that very reason, we can’t be confident that the FBI is behaving as most Americans think it should. To the contrary, there is plenty of evidence that the FBI’s rules would look different in important ways if the public had some say.
Here’s one significant example. In 2002—in the aftermath of 9/11 and as the United States was contemplating foreign military action in Iraq—an FBI agent attended an antiwar rally hosted by the Thomas Merton Center, “Pittsburgh’s Peace and Social Justice Center.” On his return he wrote a memo to his supervisor captioned “To report results of Pittsburgh anti-war activity.” When the FBI publicly released the memo pursuant to a Freedom of Information Act (FOIA) request, Director Robert Mueller was grilled about it at a congressional hearing. Senator Patrick Leahy, the senior Democrat on the Judiciary Committee, demanded, “What possible business does the F.B.I. have spying on law-abiding citizens simply because they oppose the war in Iraq?” He’s right. Isn’t this exactly why we have a First Amendment?58
Pressed to explain why the FBI was investigating domestic political activity, Director Mueller said the event had been misinterpreted: it was part of an ongoing terrorism inquiry. The agent was present not because of antiwar activity but because the FBI was on the trail of a “person of interest.” Mueller told Congress: “We were attempting to identify an individual. The agents were not concerned about the political dissent.”59
It turned out, though, that Mueller’s story was completely bogus. According to the Department of Justice’s Inspector General, what happened was that the Special Agent who attended the rally was a new employee who needed work, and the supervisor, noting that the day after Thanksgiving was “one of those slow work days,” sent him down there “to see what they were doing.” (Which does sound an awful lot like the FBI was investigating an antiwar rally.)60
Spying on a domestic peace rally was not bad enough; once the incident became public, FBI officials then fabricated elaborate explanations to cover up their tracks. The richest of them was that the Special Agent was investigating one Farooq Hussaini, who supposedly was a terrorism suspect with ties to the Thomas Merton Center. The Inspector General, however, concluded that those “assertions were not true” and noted that when Hussaini died several years later, Pittsburgh designated a day in his honor because of his contributions to the community. (The IG exonerated the Director completely in the falsehood, but plainly implicated many FBI officials at various levels in a string of conduct that was at best revolting, and perhaps downright illegal. Highlighting the lack of oversight here, we have no clue what, if any, discipline was imposed.)61
What’s notable about this story for present purposes is that although attending an antiwar rally clearly violated FBI rules at the time, and caused a big stir, under today’s rules, it would be perfectly legal. The Attorney General has gone from barring the FBI from investigating lawful demonstrations to welcoming it doing so. This, despite a long history of public disapproval of the FBI spying on domestic political movements. But that is not the half of it. By a wave of his hand—again, without any formal congressional intervention—the Director of the FBI converted the Bureau from a law enforcement agency charged to investigate “discrete matters” to an intelligence agency authorized to gather “critical information needed for broader analytic and intelligence purposes.” It is difficult even to understand how such a fundamental shift in mission can occur without formal democratic approval, but that is just the way things go in the policing world.62
As a consequence, what required a cover-up by the FBI in 2002 because it was such a flagrant violation of the rules is today perfectly acceptable. The Attorney General’s Guidelines now provide that FBI agents are entitled to attend whatever demonstrations or gatherings they wish—even religious services. And they can do it without any sort of factual predicate or suspicion at all. We don’t know how common this sort of activity is, but it is definitely happening. Members of an Orange County, California, mosque contacted the FBI in 2007 to alert the Bureau that an individual had begun attending their mosque and was promoting terrorist plots and trying to recruit others. As a result of his behavior he had been banned from the mosque. How surprised were those mosque members to learn he was an FBI informant, an ex-con the FBI had retained to spy on the mosques, using electronic equipment the FBI provided. The informant was paid at one point as much as $11,000 a month. He’d even been given leave to lure women he met in the community into sexual relationships and record their pillow talk.63
If there had been some public lawmaking process, it is not at all clear the Attorney General’s most recent guidelines—and the FBI’s own rules implementing them—would have been approved. Maybe they would. Public concerns about terrorism often give the government great leeway. But when police officers in the District of Columbia engaged in similar investigations of peaceful protest activity, the City Council condemned the conduct and passed legislation banning it. Similarly, under the DIOG agents may now map “locations of concentrated ethnic communities.” At one point, Director Mueller authorized agents to count mosques. When the LAPD announced a public program to do this, people went nuts, and the whole thing went in the trash.64
The Attorney General has authorized the FBI to engage in conduct that we can be certain many people find problematic, and that may not at all reflect the popular will. It is that latter factor that is critical, and in general is absent from policing. There’s a difference between the police having rules, and having rules of which the public approves.
RULES THAT MAKE SENSE
We don’t just need public participation in rule-making so that the rules police follow are consistent with the popular will: participation also helps ensure those rules make sense. One of the great advantages of public vetting is that if there are arguments that government rules are counterproductive—or even harmful—those arguments will emerge and be considered. Indeed, one thing judges do well—when dealing with parts of government other than the police—is to bounce rules that the agencies can’t justify on the facts. When other parts of government adopt rules, not only may the public put in its own two cents; if affected individuals think the agency rules aren’t rational, they can challenge them in court. Because police rules aren’t made publicly—or aren’t made at all—this sort of review by judges just doesn’t exist.65
It is not at all clear, for example, that the new rules governing FBI investigations are making us any safer. Under the old rules, FBI agents needed a factual basis for beginning certain investigations, or engaging in particularly intrusive surveillance. Now, though, many of those investigative tactics don’t require any factual predicate whatsoever. The FBI argues it needs to conduct this sort of information collection without any factual basis because “detecting and interrupting criminal activities at their early stages, and preventing crimes from occurring in the first place, is preferable to allowing criminal plots and activities to come to fruition.” 66
It’s hard to argue with the idea of uncovering criminal plots before they are brought to fruition—but allowing investigations to proceed with no basis whatsoever may be squandering limited resources when they are needed elsewhere. The FBI, as one commentator pointed out, “vacuums up all the information” it can get its hands on—including from commercial vendors collecting information on us—and then “disseminates the information to other government agencies and retains it indefinitely.” That’s a lot of information; more than the Bureau or other government agencies can hope to process. Not only do factual predicates such as the Constitution’s standard of “probable cause” (a phrase which notably does not appear in the Attorney General’s Guidelines for the FBI) protect our rights, they also make sure police don’t spend all their time on a wild goose chase, looking under every prayer rug for bad guys who don’t exist. Many today argue the government’s antiterrorism tactics lack focus, to the detriment of us all.67
The problem is that absent public rule-making, the FBI is left free to do as it wishes, and never mind the contrarians—even if the contrarians turn out to be right about what keeps us safe, and what causes us harm. Maybe the FBI is right—but the problem is that the public does not get to weigh in, and simply does not know.
The very same sort of problem is apparent in the multitude of SWAT missions like the one that descended on Trinity Tomsic and Cheye Calvo’s house. It’s undeniable that the 50,000 to 80,000 SWAT raids a year leave a hurricane’s worth of destroyed property and sundered lives in their wake. The question we should be asking—that is asked of virtually every other part of government when it acts—is whether the benefits of this sort of policing justify the costs.68
Cost-benefit analysis is—outside the area of policing—one of the primary tools of good government. It is what is used to ensure the public that rules made in their name actually make sense. Yet applying cost-benefit analysis to policing is very much in its infancy. For example, there is no measure whatsoever that counts the costs of police tactics like stop-and-frisk, or consent searches—or SWAT.69
Evidence suggests that our frequent use of SWAT teams may well be misguided. The long-standing rule is that before police enter a residence they must knock and give the occupants time to come to the door. Yet SWAT teams, by their nature, obtain and execute “no knock” warrants; surprise entry is their calling card. In Denver, in 1999, 146 no-knock warrants were executed. Of that number, charges were filed in only 49 cases, and only in 2 of them did jail time result. In ordinary felony cases, some 21 percent of defendants end up going to prison; in Denver’s no-knock cases, only 4 percent.70 In other words, it’s not obvious that the victims of SWAT raids are even guilty in many of these cases, let alone unusually dangerous.
Experts on policing and the use of SWAT teams offer up a litany of proposals that legislatures should consider to get SWAT use under control: from basic training standards, to special warrants for the use of SWAT teams, to higher intelligence thresholds and better threat matrices before a SWAT team is deployed (too many of these raids happen on bad intelligence from unreliable police snitches; too often the raids are executed at the wrong address). These things aren’t crazy: the more advanced police forces use them already. Some within the SWAT community are debating whether to shift toward strategies such as “contain and call-out”: muster force and order the residents to come out so they can be dealt with safely outside. Sometimes surprise is important, but how often, really, would suspects not surrender themselves to overwhelming force?71
Again, the point here is not certainty about the right answers. It is that because of the lack of public input and debate, and the sort of cost-benefit analysis this often prompts, we don’t know what is right. This is precisely the problem Cheye Calvo put his finger on.
Even if there is public rule-making, that doesn’t mean the police have to listen to everything the public has to say. When courts review rule-making by other agencies, they defer—as they should—to rules that have a rational basis. But the point is that courts are deferring to a process that is public, and reaches conclusions that make basic sense. In the 1970s, when the District of Columbia police decided to get into the business of writing rules, they sought and incorporated feedback from public defenders and civil liberties lawyers. One author, who did not support requiring the police to gather public feedback, still acknowledged, “Such public access will promote the production of sophisticated, balanced policy positions.”72
Isn’t that exactly what we’re after?
NO MATTER HOW, THERE MUST BE DEMOCRATICALLY ACCOUNTABLE RULES
By its very nature, policing is an intrusive and forceful enterprise. That’s what we pay police to do: use their presence, but also surveillance and force when necessary, to deter crime and take violators into custody. This is an extraordinary responsibility. Even when policing goes right, the toll can be devastating. And as we have seen, policing often goes wrong.
It would be inconceivable for any other part of government to exercise this sort of power absent popular input and strict controls. It is an immense failure of democracy that policing is left so ungoverned. Whether adopted by a legislative body, or by policing agencies themselves, what is needed are transparent, democratically accountable rules.
You may be fighting this conclusion. Indeed, you may be engaging in one last dodge, the same dodge the country has engaged in for at least half a century: Isn’t supervising the police the job of the courts? Can’t we trust the judges to police the police, leaving the rest of us free to focus on other things?
As we are about to see, this idea of courts controlling the police is a fairy tale we tell ourselves to avoid our responsibilities. It is pure fiction. Once that is clear, we will have no more excuses to avoid the serious work of regulating policing ourselves.