The Soldier Department

In November 2012, the local police department for the small town of Keene, New Hampshire announced the acquisition of a ballistic-engineered armored response counter attack truck, more affectionately called a “BearCat,” from the Department of Homeland Security (DHS).  Meanwhile, local police in the small town of Cary, North Carolina taught a training course entitled “Warrior Mindset” to its incoming class of officers. In February 2013, a New Haven Police Department Special Weapons and Tactics (SWAT) team used a battering ram through a single family’s front door, shooting a flash-bang grenade to temporarily blind the family while it executed a search warrant for drugs.  No drugs were found.

These instances are but a few examples of what has become a standard model for policing in America.  It is also known as the militarization of police, where military tactics and military-grade equipment are making their way into local police forces.  A progeny of the “War on Drugs” era from the 1970s, police departments across the country are becoming ever more reliant on their SWAT forces to execute basic search warrants, a large majority of which are meant to recover drugs.  In fact, between 2011 and 2012, 62% of approximately 800 SWAT deployments by twenty law enforcement agencies within the United States were for drug searches of people’s homes.  Not only are these searches conducted late at night, but they are executed by officers who are armed and clad in uniformed battle dress (UBD), wielding semi-automatic and automatic rifles, all of which were specifically engineered for the U.S. military.  These items have been pouring with increasing volume and frequency through the Department of Defense’s 1033 Program, which sells surplus military equipment to local police forces. 

SWAT teams were originally founded to execute high-risk tasks that fall outside the scope of a police officer’s typical duties, most notably counterterrorism and hostage rescue scenarios.  However, in light of a growing fear over national security, the needs for battling crime within the country has sparked a transition in the collective mindset of American policing.  This militarization of local law enforcement has been made possible due to virtually no oversight or accountability mechanisms, while Supreme Court case law concerning the reasonableness of searches over the past forty years has granted broad discretion in how the police operate. This blog post seeks to highlight just a few of the many examples demonstrating how the rise of the soldier cop has occurred at the cost of more narrow privacy rights in the home.

The Department of Defense’s 1033 Program is operated through the Defense’s Logistics Agency (DLA) Law Enforcement Support Office.  It has distributed over $4 billion worth of property to local police agencies.  The amount of equipment has increased at an exponential rate, from 1 million dollars in 1990 to over 400 million dollars in 2013.  This property ranges from new to used equipment; from automatic and semi-automatic assault rifles, to armored personnel carriers (APC)s, and camouflage clad uniforms (a.k.a BDUs).  In fact, since 2006, over 180,000 magazines, more than 400 armored vehicles and near 94,000 machine guns were handed out to local police forces.

Police departments purchase these military grade items in an effort to help keep police officers safe while on duty.  However, such military equipment is often used to execute search warrants relating to non-violent behavior such as drug searches.  Opponents to this trend believe the military nature of these searches are supplanting the traditional idea of community policing into militarized policing. Additionally, many of these searches are of persons who pose no threat of serious bodily injury or death to the police officers. In a recent ACLU report, only 33% of SWAT team searches in which police had reasonable suspicion the person about to be searched was armed actually had a gun or weapon.

The means by which police officers use to execute search warrants is highly discretionary.  The Supreme Court has created many exceptions where police can avoid obtaining search warrants if certain exigent circumstances exist.  Typically, officers must knock and announce and wait a reasonable amount of time before entering by use of force.   However, police only need reasonable suspicion that a threat of physical violence may exist to avoid the knock and announce rule and skip to forced, unannounced entry.  Additionally, if the police have reasonable suspicion that a threat of physical violence will be waiting for them when they serve the warrant, they can apply for a warrant that allows them to avoid knocking all together.

While there is nothing objectively unreasonable about wanting to protect police officers from harm while on duty, many of the scenarios involving military tactics by police officers pertain to non-violent offenses.  The Supreme Court has gone even further, noting that if the police believe knocking would lead to the destruction of evidence, they can avoid the knock and announce rule and enter right away.  This is especially relevant where the majority of all SWAT searches are drug related.

This evolving case law is important respecting the increased militarization of police as it has given police free reign in how they execute searches of a person’s home so long as the police operate in “good faith.”  The Supreme Court does consider the level of force the police use to carry out searches in determining their reasonableness, however, it hardly results in the exclusion of the fruits of any unreasonable search, providing no deterrent for police officers to avoid.  So long as the police act in good faith, any evidence collected from an unreasonable search will not be precluded from use at trial under the Exclusionary Rule.  This is important, as many search warrants executed by SWAT teams result in the destruction of property.  SWAT searches are largely destructive of property. Battering rams break door frames and flash bang grenades have been known to cause fires.

While the Supreme Court maintains that a showing of good faith by police is enough to avoid excluding evidence that has been obtained in violation of the Fourth Amendment’s reasonable search and warrant requirements, there is no way to effectively influence the way police departments serve and conduct searches of individual homes. Couple this with the surplus of military grade equipment coming back from overseas and into local police departments, the militarization of police is already here.

How the militarization fits into the practice of law is difficult to answer with the conciseness required of a blog post. However, unless a defense lawyer can demonstrate that the police acted in bad faith, they cannot seek to exclude any evidence collected from the result of an unreasonable search. Aside from that, there is no way to directly challenge the way a search is conducted and turn it into any tangible benefit for the defendant at trial.

            

However, one organization is seeking to end the practice of militarized policing in the District of Columbia. Equal Justice Under Law (EJUL) is a recently founded civil rights non-profit composed of two attorneys; Alec Karakatsanis formerly of the Public Defender Service for the District of Columbia and Phil Telfeyan, a former trial attorney in the Civil Rights Division of the Department of Justice. The organization has filed three civil lawsuits all in federal court challenging the prolific use of militarized home invasions by the Metropolitan Police Department in the nation’s capital.

And because the deterrent effects posed by the risk of the Exclusionary Rule do not limit the means by which officers chose to execute search warrants, civil cases such as those brought by Equal Justice Under Law.

Robert A. Maes

Staffer, Criminal Law Practitioner

Photo by Tim McAteer on Wikimedia Commons.