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Three columns to read on the subject: Gene Healy, Glenn Reynolds (linking this site), and Nat Hentoff (like Healy, a Cato colleague) in his syndicated column (thanks for mention). I had a letter to the editor yesterday in the Frederick News-Post drawing connections with local lawmakers (as well as a blog post at Free State Notes with similar themes) and the Arizona Republic quoted me Tuesday on the federal subsidy programs that drive militarization, including transfers to the ever-controversial Maricopa County Sheriff’s Office of Joe Arpaio. Earlier here, here, here, here, here, etc.

P.S. Also quoted on NPR.

One consequence of the events in Ferguson, Mo. is that people are talking with each other across ideological lines who usually don’t, a symbol being the attention paid on both left and right to Sen. Rand Paul’s op-ed last week in Time. And one point worth discussing is how the problem of police militarization manifests itself similarly these days in local policing and in the enforcement of federal regulation.

At BuzzFeed, Evan McMorris-Santoro generously quotes me on the prospects for finding common ground on these issues. The feds’ Gibson Guitar raid — our coverage of that here — did much to raise the profile of regulatory SWAT tactics, and John Fund cited others in an April report:

Many of the raids [federal paramilitary enforcers] conduct are against harmless, often innocent, Americans who typically are accused of non-violent civil or administrative violations.

Take the case of Kenneth Wright of Stockton, Calif., who was “visited” by a SWAT team from the U.S. Department of Education in June 2011. Agents battered down the door of his home at 6 a.m., dragged him outside in his boxer shorts, and handcuffed him as they put his three children (ages 3, 7, and 11) in a police car for two hours while they searched his home. The raid was allegedly intended to uncover information on Wright’s estranged wife, Michelle, who hadn’t been living with him and was suspected of college financial-aid fraud.

The year before the raid on Wright, a SWAT team from the Food and Drug Administration raided the farm of Dan Allgyer of Lancaster, Pa. His crime was shipping unpasteurized milk across state lines to a cooperative of young women with children in Washington, D.C., called Grass Fed on the Hill. Raw milk can be sold in Pennsylvania, but it is illegal to transport it across state lines. The raid forced Allgyer to close down his business.

Fund goes on to discuss the rise of homeland-security and military-surplus programs that have contributed to the rapid proliferation of SWAT and paramilitary methods in local policing. He cites Radley Balko’s Rise of the Warrior Cop, which similarly treats both manifestations of paramilitary policing as part of the same trend.

As McMorris-Santoro notes in the BuzzFeed piece, Rep. Chris Stewart (R-Utah) has introduced a bill called the Regulatory Agency Demilitarization Act, citing such unsettling developments as a U.S. Department of Agriculture solicitation for submachine guns. 28 House Republicans have joined as sponsors, according to Ryan Lovelace at National Review.

There has already been left-right cooperation on the issue, as witness the unsuccessful Grayson-Amash amendment in June seeking to cut off the military-surplus 1033 program. As both sides come to appreciate some of the common interests at stake in keeping law enforcement as peaceful and proportionate as situations allow, there will be room for more such cooperation. (& welcome Instapundit, Radley Balko, Bainbridge readers; cross-posted at Cato at Liberty)

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  • D.C.-area listeners: Today (Monday) I’m scheduled to join host Diane Rehm on her popular WAMU radio show, along with other panelists, tune in at 10 a.m. [update: transcript];
  • “A few people have pointed it out, but our ROE [Rules of Engagement] regarding who we could point weapons at in Afghanistan was more restrictive than cops in MO.” [@jeffclement, part of an interesting Storify on veterans’ opinions of Ferguson; related on gun-handling practice of Ferguson police last week as seen by gun aficionados [Reddit via VICE]
  • Obama should call for an end to the 1033 program, which drives local police militarization, says my Cato colleague Tim Lynch [CNN, Yahoo] Pentagon surplus grants to local police don’t correlate with terror threats (state that gets most per officer: Alabama) [WP] Missouri grant angle [David Mastio and Kelsey Rupp, USA Today]
  • SWAT raids on poker games and a comedian: John Stossel’s column this week is on Ferguson [Fox] The inimitable Mark Steyn [Steyn Online] And for balance here’s a contrary view from someone who views militarization as both inevitable and necessary [Jazz Shaw, Hot Air]
  • “What I Did After Police Killed My Son” [Politico; Michael Bell of Kenosha, Wis.]
  • Asset forfeiture, federal partnerships fed St. Louis County gear acquisition [Eapen Thampy, Forfeiture Reform] More background on forces fueling militarization [Glenn Reynolds, Popular Mechanics, 2006]
  • “The Missouri Highway Patrol, St. Louis County, and the City of Ferguson agree that public has the ‘right to record public events'” [Volokh, 2010 Cato video] “Prove the truth”: why cameras help good cops [Nick Gillespie]

Above: Cato podcast, interviewed by Caleb Brown.

The events in Ferguson, Mo. have vaulted police militarization to the top of the national news. I’ve spent a lot of the past 48 hours talking with the press, covering the issue on Twitter and other social media, and fielding reactions to my blog post (reprinted at the Cato blog), which has gotten considerable attention. Highlights:

P.S. Finally some good news from Ferguson. Newly assigned cops from the Missouri Highway Patrol wear blue not camo, mingle and talk to protesters with respect — and suddenly there’s calm. And the Rand Paul piece is making news.

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Why armored vehicles in a Midwestern inner suburb? Why would cops wear camouflage gear against a terrain patterned by convenience stores and beauty parlors? Why are the authorities in Ferguson, Mo. so given to quasi-martial crowd control methods (such as bans on walking on the street) and, per the reporting of Riverfront Times, the firing of tear gas at people in their own yards? (“‘This my property!’ he shouted, prompting police to fire a tear gas canister directly at his face.”) Why would someone identifying himself as an 82nd Airborne Army veteran, observing the Ferguson police scene, comment that “We rolled lighter than that in an actual warzone“?

As most readers have reason to know by now, the town of Ferguson, Mo. outside St. Louis, numbering around 21,000 residents, is the scene of an unfolding drama that will be cited for years to come as a what-not-to-do manual for police forces. After police shot and killed an unarmed black teenager on the street, then left his body on the pavement for four hours, rioters destroyed many local stores. Since then, reportedly, police have refused to disclose either the name of the cop involved or the autopsy results on young Michael Brown; have not managed to interview a key eyewitness even as he has told his story repeatedly on camera to the national press; have revealed that dashcams for police cars were in the city’s possession but never installed; have obtained restrictions on journalists, including on news-gathering overflights of the area; and more.

The dominant visual aspect of the story, however, has been the sight of overpowering police forces confronting unarmed protesters who are seen waving signs or just their hands.

If you’re new to the issue of police militarization, which Overlawyered has covered occasionally over the past few years, the key book is Radley Balko’s, discussed at this Cato forum:

Federal grants drive police militarization. In 2012, as I was able to establish in moments through an online search, St. Louis County (of which Ferguson is a part) got a Bearcat armored vehicle and other goodies this way. The practice can serve to dispose of military surplus (though I’m told the Bearcat is not military surplus, but typically purchased new — W.O.) and it sometimes wins the gratitude of local governments, even if they are too strapped for cash to afford more ordinary civic supplies (and even if they are soon destined to be surprised by the high cost of maintaining gear intended for overseas combat).

As to the costs, some of those are visible in Ferguson, Mo. this week.

[edited to add/update links and to clarify the issues of military surplus and the un-interviewed witness; cross-posted at Cato at Liberty]

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Radley Balko, often linked in this space, is out with a new book entitled Rise of the Warrior Cop, about the militarization of local police forces. [Reviews: Scott Greenfield, Diane Goldstein] A Salon excerpt details SWAT team raids over such offenses as sports gambling (“It [the Fairfax County, Va. 2006 shooting of football bettor Sal Culosi) wasn’t even the first time a Virginia SWAT team had killed someone during a gambling raid”) as well as dog shootings by police and aggressive actions against political protests. Balko has been devoting his Huffington Post column to such related topics as the police-industrial complex, and the ABA Journal also has an extensive treatment (related podcast).

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October 23 roundup

by Walter Olson on October 23, 2014

  • I’m quoted by Nicky Woolf of Great Britain’s Guardian on the police militarization angle in Keene, N.H. civil disturbances (also: Van Smith, Baltimore City Paper). Also quoted regarding the ominous move to heavy armaments of Wisconsin prosecutors investigating their political opponents in the dawn-raids “John Doe” proceeding [Watchdog, and second post, earlier] Humor in The New Yorker from Bruce McCall ["Pentagon Cop Aid Hits Snags"] And here’s a previously unlinked Cato panel last month on cop militarization with David Kopel, Mark Lomax, and Cheye Calvo, moderated by Tim Lynch;
  • Australia prime minister declares “repeal day” with “bonfire” of regulations [Jeff Bennett and Susan Dudley, Cato Regulation mag; earlier on Minnesota legislative "unsession" to dump outmoded or pointless laws]
  • “After dawdling for a year, panel tosses bogus complaint against Judge [Edith] Jones” [@andrewmgrossman on Houston Chronicle via Howard Bashman, Richard Kopf, Tamara Tabo, earlier here, here, and here]
  • Making waves: Michelle Boardman review of Margaret Radin book on boilerplate, adhesion contracts, fine print [Harvard Law Review, SSRN]
  • Why litigation lobby could cost Democrats Senate majority this year [Tim Carney]
  • Online-services companies, better not do business in Maryland since the state has a very special law that one law professor believes sharply restricts your customer research [Masnick/TechDirt]
  • Picking Thomas Perez as Attorney General would (or should!) ignite firestorm of opposition. Is that why President’s waiting till after Nov. 4? [Washington Examiner]

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Schools roundup

by Walter Olson on October 7, 2014

  • New report: “Schools Cut Back as Litigation Costs Eat into Budgets” [California Citizens Against Lawsuit Abuse, PDF] “Swings too dangerous for Washington schools” [AP; Richland, Wash.]
  • “Appeals Court Ruling Paves Way for Gender Quotas in High School Sports” [Saving Sports, Ninth Circuit on Title IX] More: Alison Somin [Ollier v. Sweetwater Union School District]
  • “College and university administrators demolishing freedom of religion and association” [Bainbridge]
  • “Grenade Launchers: The Newest Must-Have School Supply” [Jason Bedrick/Cato, earlier]
  • “It was against the school policy for elementary kids to have Chapstick” [Amy Alkon; Augusta County, Va.] “Mom Tells Therapist About Briefly Leaving Kids Alone, Shrink Calls Cops” [Lenore Skenazy]
  • Disability and school discipline: “Wondering why a preschooler would ever need to be suspended? Here’s an explanation.” [Amy Rothschild, Greater Greater Washington]
  • Civic education needed: some Greendale, Wisc. parents and educators wonder why non-parents are allowed to vote on school matters [Lenore Skenazy]

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Police and prosecution roundup

by Walter Olson on September 24, 2014

  • “Shaneen Allen’s prosecutor might be having second thoughts” [Radley Balko, earlier] Sequel: Indeed.
  • “If you get a parking ticket, you are guilty until you have proven yourself innocent …. And that’s worked well for us.” — “senior” Washington, D.C. government official [Washington Post quoting inspector general report; also includes details on traffic camera protocols]
  • Not an Onion story: Eleventh Circuit chides use of SWAT methods in Florida barber shop inspections [ABA Journal ("It's a pretty big book, I’m pretty sure I can find something in here to take you to jail for"), Volokh, Balko, Greenfield] Militarized cop gear is bad, routinized use of SWAT tactics is worse [Jacob Sullum]
  • New England Innocence Project looking at several shaken-baby cases [Boston Herald, background]
  • Innocence commissions like North Carolina’s not a big budgetary line item as government programs go, alternatives may cost more [A. Barton Hinkle]
  • New evidence continues to emerge in Ferguson police shooting, but is nation still listening? [Scott Greenfield]
  • Prosecutors arrayed as organized pressure group is very bad idea to begin with, and more so when goal is to shrink citizens’ rights [AP on "Prosecutors Against Gun Violence"; Robert H. Jackson on prosecutors' power and role in society]

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Police and prosecution roundup

by Walter Olson on September 11, 2014

  • Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal]
  • Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon]
  • “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it someday? San Diego Unified School District defends acquisition of armored vehicle [inewsource.org] And Senate hearing [AP]
  • “Machine-based traffic-ticketing systems are running amok” [David Kravets, ArsTechnica]
  • Thanks, Fraternal Order of Police, for protecting jobs of rogue Philadelphia cops who could cost taxpayers millions [Ed Krayewski; related earlier]
  • Study: returning from 6- to 12-person juries could iron out many racial anomalies at trial [Anwar et al, Tabarrok]
  • Courts can help curb overcriminalization by revitalizing rule of lenity, mens rea requirement [Steven Smith]

Police roundup

by Walter Olson on September 4, 2014

  • Spectacular investigative report from Radley Balko on fines, fees, and revenue-driven law enforcement in the towns north of St. Louis [WaPo] Reading it, I’m pretty confident my two cents a couple of weeks ago was on the right track;
  • Talk about wrong turns: some self-styled progressives want to seize the moment to extend federal government control further over local police management [BuzzFeed, Scott Greenfield ("czar" idea)]
  • More reporting on how we got police militarization [ProPublica, Newsweek]
  • Race, police, and political power in Ferguson [Charles Cobb guest-posting at Volokh] Richard Epstein on not jumping to factual conclusions (link fixed now);
  • N.Z.: “Police union’s election year wishlist” [Radio New Zealand (via @EricCrampton who comments: "Short version: any restriction on liberty that makes their job easier"); yesterday's post]
  • Pretextual pot busts? Zimring’s curious defense of NYC “broken windows” policing [NYP]
  • Yes, there’s a SWAT lobby in Washington, D.C., behaving as you’d expect [Tim Mak, Daily Beast] “If Democrats Seek to ‘Rally Blacks’ Against Police Militarization, They Might Start with the Congressional Black Caucus” [Nick Gillespie; Zaid Jilani, Vanity Fair]
  • “Police Officers and Patents of Nobility” [Coyote] “Man shot, paralyzed over unpaid parking tickets” [Balko; Lehigh County, Pa.]

The need for police forces isn’t going away, so what practical suggestions do libertarians have in the here and now for discouraging police resort to excessive force? Thanks to Ed Krayewski at Reason for quoting me on the subject of tackling the power of police unions, which not only protect bad actors from removal but tie the hands of well-intentioned administrators in a dozen other ways and exert political pressure against effective reform. (Other suggestions in the piece: increase use of body- and dash-cams, extend the role of civilian oversight boards, and end the Drug War; relatedly, curtail SWAT tactics and the use of other paramilitary force.)

On a perhaps not unrelated note, the Washington Post reports today on the police shooting of an unarmed suburban Washington, D.C. man in his front doorway after he refused to let police into his home following a domestic call. The fact that jumped out at me was that, a year after it happened, the Fairfax County police department is still releasing no information about the incident, not even the name of the officer who pulled the trigger. According to the Post’s account (related lawsuit), police shot kitchen contractor John Geer once but first aid did not arrive until an hour later — he bled to death — and his body remained unmoved for hours, like that of Michael Brown on the street in Ferguson, Mo. The Fairfax chief says his department is just following its own policy by not releasing the officer’s name or other information while an investigation is pending (and pending and pending) — but how that policy came to be adopted, and for whose benefit, are questions worth asking.

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A federal judge has declined to award summary judgment to Cinemark Holdings against a claim that it should have foreseen a madman’s mass shooting rampage at its Aurora, Colo. theater two years ago. [Deadline Hollywood] Ken White at Popehat corrects some media misapprehension about the difference between a summary judgment motion and disposition of the merits, but as a commenter points out, much of the practical damage is indeed done when a judge declines summary judgment in such a case, since the defendant then faces not only the substantial cost of trial but also the unpredictability of a jury faced with very sympathetic plaintiffs and a deep-pocket defendant; there is nothing either unusual or untraditional about judges’ averting these costs by ruling out particular liability theories as a matter of law.

More from Scott Greenfield: “The biggest growth job in America will be armed guard. … A theater showing a movie, even a Batman movie at midnight, is not a crazy killer magnet such that Cinemark could have possibly anticipated what would happen…. The law shouldn’t impose a duty that suggests otherwise.”

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All-Ferguson edition, including my CNBC exchange last Friday, above:

  • Typically good John Stossel column [Washington Examiner, syndicated, and thanks for mention] Disturbing innovations coming our way in the world of crowd/protest control include “puke cannons,” “pain rays” [Gene Healy, Washington Examiner, ditto]
  • Cause of death: failure to comply with police orders [David M. Perry, opinion] “Here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you” [Sunil Dutta (L.A.P.D. officer), Washington Post; Ken at Popehat]
  • “Expect Many, Many Lawsuits From Ferguson” [Chris Geidner, BuzzFeed]
  • Not the safe conventional move: I’m quoted on Sen. Rand Paul’s willingness to grapple with Ferguson [Politico]
  • Local commercial economies take a long time to recover from damage done by looting [Kate Rogers/Fox Business, thanks for quote]]
  • Political economy: unusual state of representation in Ferguson makes the town an outlier [Seth Masket, Pacific Standard] Police-driven budget? “Ferguson receives nearly one-quarter of its revenue from court fees” [Jeff Smith, NY Times]
  • According to Victor Davis Hanson, we critics of police militarization have “empowered [radical groups] to commit violence” [NRO]
  • “What I Did After a Cop Killed My Son” [Michael Bell, Politico, Kenosha, Wisc.; civilian review]
  • “Why Are There No News Helicopters Over Ferguson?” [Peter Suderman]

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  • “Emails show feds asking Florida cops to deceive judges by calling Stingrays ‘confidential sources.'” [Wired]
  • Trial penalty: mortgage fraud defendants in study fared far worse if they insisted on process of law to which they are notionally entitled under Constitution [Wes Oliver at Daniel Fisher's; more on joint Duquesne Law/Pittsburgh Post Gazette study from reporter Rich Lord, first, second]
  • “‘Florida’s Worst Cop’ Finally Convicted of Something, May Be Headed to Jail” [Ed Krayewski, Reason, earlier]
  • “Plans to expand scope of license-plate readers alarm privacy advocates” [Center for Investigative Reporting, earlier here, here, here, here, here] But at least our sensitive personal information will be safe with the government! [Lowering the Bar]
  • “Challenges to ‘shaken baby’ convictions mounting” [Wisconsin State Journal, earlier]
  • A Pavlik Morozov for the Drug War? “Brave” Minnesota 9-year-old hailed for turning in parents on pot rap [Minneapolis Star-Tribune, background on Soviet youth hero]
  • “Police SWAT teams in Massachusetts form private corporations, then claim immunity from disclosure laws” [Radley Balko via @gabrielroth, more from ACLU report on police militarization]
  • As condition of bail, federal magistrate orders arrestee to recant charge of government misconduct [Eugene Volokh]
  • Possible life sentence for pot brownies shows “utterly irrational consequences of pretending drugs weigh more than they do” [Jacob Sullum, Radley Balko] Life sentence for guy who sold LSD: “the prosecutor was high-fiving [the] other attorneys” [Sullum]
  • Do low-crime small towns across America really need MRAP (mine-resistant ambush-protected) armored vehicles and other military gear, thanks to federal programs? [Balko]
  • Minnesota reforms its use of asset forfeiture [Nick Sibilla, FIRE] Rhode Island, Texas could stand to follow [Balko]
  • If not for video, would anyone believe a story about Santa Clara deputies “spiking” premises with meth after finding no illegal drugs? [Scott Greenfield]
  • Falsely accused of abuse: “He Lost 3 Years and a Child, but Got No Apology” [Michael Powell, NY Times "Gotham"; Amine Baba-Ali case]
  • Two federal judges denounce feds’ “let’s knock over a stash house” entrapment techniques as unconstitutional [Brad Heath, USA Today]

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  • After criticism of heavy-handed Ankeny, Iowa police raid on persons suspected of credit card fraud, not actually reassuring to be told militarized methods needed because one house occupant had firearms carry permit [Radley Balko, more, more]
  • Advocates strain mightily to fit unpopular Dunn verdict into Stand Your Ground theme [David Kopel, Jacob Sullum] More: sorry, pundits, but Rasmussen poll shows public’s plurality SYG support unshaken [Althouse]
  • “‘Drop the Cabbage, Bullwinkle!': Alaskan Man Faces Prison for the Crime of Moose-Feeding” [Evan Bernick, Heritage] “Criminalizing America: How Big Government Makes A Criminal of Every American” [ALEC "State Factor"]
  • “We’ve also bred into dogs … an eagerness to please us.” Bad news for K-9 forensics [Balko]
  • “Has overcharging killed the criminal trial?” [Legal Ethics Forum] Is the “trial penalty” a myth? [David Abrams via Dan Markel, Scott Greenfield]
  • What if cops, as opposed to, say, gun owners, were obliged by law to purchase liability insurance? [Popehat]
  • That’s productivity: North Carolina grand jury managed to crank out roughly one indictment every 52 seconds [Tim Cushing, TechDirt]