How did America’s police become a military force on the streets?

Posted Jul 1, 2013 5:10 AM CDT, By Radley Balko

Are cops constitutional?

In a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U.S. Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the framers, professional police officers were unknown,” Roots writes.

The founders and their contemporaries would probably have seen even the early-19th-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome.

If even the earliest attempts at centralized police forces would have alarmed the founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.

Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy SEALs or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops—despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.

OUR 'RUNT PIGLET' AMENDMENT

The Third Amendment reads, in full: “No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

You might call it the runt piglet of the Bill of Rights amendments—short, overlooked, sometimes the butt of jokes. The Supreme Court has yet to hear a case that turns on the Third Amendment, and only one such case has reached a federal appeals court. There have been a few periods in American history when the government probably violated the amendment [the War of 1812, the Civil War and on the Aleutian Islands during World War II], but those incursions into quartering didn’t produce any significant court challenges. Not surprisingly, then, Third Amendment scholarship is a thin field, comprising just a handful of law review articles, most of which either look at the amendment’s history or pontificate on its obsolescence.

Given the apparent irrelevance of the amendment today, we might ask why the framers found it so important in the first place. One answer [lies in] the “castle doctrine.” If you revere the principle that a man’s home is his castle, it hardly seems just to force him to share a portion of it with soldiers—particularly when the country isn’t even at war. But the historical context behind the Third Amendment shows that the framers were worried about something more profound than fat soldier hands stripping the country’s larders.

At the time the Third Amendment was ratified, the images and memories of British troops in Boston and other cities were still fresh, and the clashes with colonists that drew the country into war still evoked strong emotions. What we might call the “symbolic Third Amendment” wasn’t just a prohibition on peacetime quartering, but a more robust expression of the threat that standing armies pose to free societies. It represented a long-standing, deeply ingrained resistance to armies patrolling American streets and policing American communities.

And, in that sense, the spirit of the Third Amendment is anything but anachronistic.

As with the castle doctrine, colonial America inherited its aversion to quartering from England. And as with the castle doctrine, England wasn’t nearly as respectful of the principle in the colonies as it was at home. The first significant escalation of the issue came in the 1750s, when the British sent over thousands of troops to fight the Seven Years’ War (known in the United States as the French and Indian War). In the face of increasing complaints from the colonies about the soldiers stationed in their towns, Parliament responded with more provocation. The Quartering Act of 1765 required the colonists to house, feed and supply British soldiers (albeit in public facilities). Parliament also helpfully provided a funding mechanism with the hated Stamp Act.

Protests erupted throughout the colonies, [and] some spilled over into violence, most notably the Boston Massacre in 1770. England only further angered the colonists by responding with even more restrictions on trade and imports. Parliament then passed a second Quartering Act in 1774, this time specifically authorizing British generals to put soldiers in colonists’ homes. The law was aimed squarely at correcting the colonies’ insubordination. England then sent troops to emphasize the point.

Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. The policy was reminiscent of today’s civil asset forfeiture laws, which allow police to seize and keep for their departments cash, cars, luxury goods and even homes, often under only the thinnest allegation of criminality.

A BATTLE OVER ARMIES
After the American Revolution, the leaders of the new American republic had some difficult decisions to make. They debated whether the abuses that British soldiers had visited upon colonial America were attributable to quartering alone or to the general aura of militarism that came with maintaining standing armies in peacetime—and whether restricting, prohibiting or providing checks on either practice would prevent the abuses they feared.

Antifederalists like George Mason, Patrick Henry, Sam Adams and Elbridge Gerry opposed any sort of national army. They believed that voluntary, civilian militias should handle issues of national security. To a degree, the federalists were sympathetic to this idea. John Adams, Thomas Jefferson and James Madison had all written on the threat to liberty posed by a permanent army. But the federalists still believed that the federal government needed the power to raise an army.

In the end, the federalists won the argument. There would be a standing army. But protection from its potential threats would come in an amendment contained in the Bill of Rights that created an individual right against quartering in peacetime. Even during wartime, quartering would need to be approved by the legislature, the branch more answerable to the people than the executive.

Taken together, the Second, Third and Tenth amendments indicate the founders’ desire for the power to enforce laws and maintain order to be primarily left with the states. As a whole, the Constitution embodies the rough consensus at the time that there would be occasions when federal force might be necessary to carry out federal law and dispel violence or disorder that threatened the stability of the republic, but that such endeavors were to be undertaken cautiously, and only as a last resort.

More important, the often volatile debate between the federalists and the antifederalists shows that the Third Amendment itself represented much more than the sum of its words. The amendment was in some ways a compromise, but it reflects the broader sentiment—shared by both sides—about militarism in a free society. Ultimately, the founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens.

FEDERAL FORCE ARISES
Before the Bill of Rights could even be ratified, however, a rebellion led by a bitter veteran tested those principles. Daniel Shays was part of the Massachusetts militia during the Revolutionary War. He was wounded in action and received a decorative sword from the French general the Marquis de Lafayette in recognition of his service.

After the war ended, Shays returned to his farm in Massachusetts. It wasn’t long before he began receiving court summonses to account for the debts he had accumulated while he was off fighting the British. Shays went broke. He even sold the sword from Lafayette to help pay his debts. Other veterans were going through the same thing.

The debt collectors weren’t exactly villains either. Businesses too had taken on debt to support the war. They set about collecting those debts to avoid going under. Shays and other veterans attempted to get relief from the state legislature in the form of debtor protection laws or the printing of more money, but the legislature balked.

In the fall of 1786, Shays assembled a group of 800 veterans and supporters to march on Boston. The movement subsequently succeeded in shutting down some courtrooms, and some began to fear that it threatened to erupt into a full-scale rebellion.

In January 1787, Massachusetts Gov. James Bowdoin asked the Continental Congress to raise troops to help put down the rebels, but under the Articles of Confederation the federal government didn’t have the power. So Bowdoin instead assembled a small army of mercenaries paid for by the same creditors who were hounding men like Shays. After a series of skirmishes, the rebellion had been broken by the following summer.

Shays’ Rebellion was never a serious threat to overthrow the Massachusetts government—much less that of the United States—and it was put down relatively quickly, without the use of federal troops and with little loss of life beyond the rebels themselves. But its success in temporarily shutting down courthouses in Boston convinced many political leaders in early America that a stronger federal government was needed. Inadvertently, Shays spurred momentum for what became the 1787 Constitutional Convention in Philadelphia.

The impact of Shays’ Rebellion didn’t end, however, at Philadelphia. Memories of the rebellion and fears that something like it could destabilize the new republic blunted memories of the abuses suffered at the hands of British troops and made many in the new government more comfortable with the use of federal force to put down domestic uprisings.

In 1792, just five years after the ratification of the Bill of Rights, Congress passed the Calling Forth Act. The new law gave the president the authority to unilaterally call up and command state militias to repel insurrections, fend off attacks from hostile American Indian tribes, and address other threats that presented themselves while Congress wasn’t in session. In addition to the concerns raised by Shays’ Rebellion, growing discontent over one of the country’s first federal taxes—a tax on whiskey—was also making the law’s supporters anxious. Two years later, in 1794, President George Washington used the act to call up a militia to put down the Whiskey Rebellion in western Pennsylvania.

So ideas about law and order were already evolving. The young republic had gone from a country of rebels lashing out at the British troops in their midst to a country with a government unafraid to use its troops to put down rebellions. But American presidents had still generally adhered to the symbolic Third Amendment. For the first 50 years or so after ratification of the Constitution, military troops were rarely, if ever, used for routine law enforcement. But, over time, that would change.

--snip--

(rest of lengthy article at link, worth the time to read the rest, IMO)

I've wondered about this.

The initial problem with it is the difference between the neighborhood cop and the kevlar-clad SWAT enforcer. Whole different attitude and approach to "policing". And, we've gone way beyond that now.

Zitat

---

Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. The policy was reminiscent of today’s civil asset forfeiture laws, which allow police to seize and keep for their departments cash, cars, luxury goods and even homes, often under only the thinnest allegation of criminality.

---

Thanks for the post.

This is a nice complement to Balko's:
Rise of the Warrior Cop

Quote: Sanguine wrote in post #2

---

I've wondered about this.

The initial problem with it is the difference between the neighborhood cop and the kevlar-clad SWAT enforcer. Who different attitude and approach to "policing". And, we've gone way beyond that now.

---

Quote: FP123 wrote in post #4

---

Quote: Sanguine wrote in post #2

---

I've wondered about this.

The initial problem with it is the difference between the neighborhood cop and the kevlar-clad SWAT enforcer. Who different attitude and approach to "policing". And, we've gone way beyond that now.

---

The "War on (Some) Drugs" and "War on Terror" have contributed greatly to all of it.

It would be great if there were more Betty Taylors out there waking up.

A COP REMEMBERS
Betty Taylor still remembers the night it all hit her.
. . . . .
Taylor was later appointed police chief of the small town of Winfield, Mo. Winfield was too small for its own SWAT team, even in the 2000s, but Taylor says she’d have quit before she ever created one. “Good police work has nothing to do with dressing up in black and breaking into houses in the middle of the night. And the mentality changes when they get put on the SWAT team. I remember a guy I was good friends with; it just completely changed him. The us-versus-them mentality takes over. You see that mentality in regular patrol officers too. But it’s much, much worse on the SWAT team. They’re more concerned with the drugs than they are with innocent bystanders. Because when you get into that mentality, there are no innocent people. There’s us and there’s the enemy. Children and dogs are always the easiest casualties.”

Taylor recently ran into the little girl who changed the way she thought about policing. Now in her 20s, the girl told Taylor that she and her brother had nightmares for years after the raid. They slept in the same bed until the boy was 11. “That was a difficult day at work for me,” she says. “But for her, this was the most traumatic, defining moment of this girl’s life. Do you know what we found? We didn’t find any weapons. No big drug operation. We found three joints and a pipe.”

---

Quote: algernonpj wrote in post #5

---

The militarizing of the police is an example of how the progressives / statists appeal to those on the 'fight' and sucker them in. I remember the creation of the war on drugs. In the name of safety constitutional rights were slowly eroded. Confiscate the dealers property instantly, no trial - no conviction - after all the uber PC, liberal justice system that bent the law on the fly was only going to let them walk. A meme was created presenting false alternatives as the only solution: let the drug criminals walk or give up your constitutional rights. Human nature did the rest.

---

Quote: FP123 wrote in post #6

---

Quote: algernonpj wrote in post #5

---

The militarizing of the police is an example of how the progressives / statists appeal to those on the 'fight' and sucker them in. I remember the creation of the war on drugs. In the name of safety constitutional rights were slowly eroded. Confiscate the dealers property instantly, no trial - no conviction - after all the uber PC, liberal justice system that bent the law on the fly was only going to let them walk. A meme was created presenting false alternatives as the only solution: let the drug criminals walk or give up your constitutional rights. Human nature did the rest.

---

Haha, interesting typo there! I assume that you mean the 'right!'

False alternatives, all the way. (And how many times have you heard the "if you aren't a drug dealer/user what do you care?" We still hear it (though less pronounced thankfully!) today with the "if you've got nothing to hide why do you care if the gubmint is snooping?")

---