Published August 02, 2006
In my last column, I outlined the problem of the "militarization" of America's civilian police departments, chiefly through the increasing proliferation and use of SWAT teams.
As you might have seen on shows like "Dallas SWAT" or "COPS," these raids typically involve kicking down doors, "flash grenades" and heavy weaponry, and they're increasingly being used for drug policing and for crimes as slight as possession of marijuana or gambling. This week, I'd like to offer a few policy recommendations to address some of the more troubling aspects of this trend.
The most obvious recommendation is, of course, to end the drug war. Nearly 35 years since President Nixon declared that "war" and 25 years after President Reagan reinvigorated it, it is unquestionably a complete and utter failure. Use of illicit drugs has remained relatively constant.
Meanwhile, deaths from drug overdoses have more than tripled, the prison population has soared and the purity of illicit drugs on the black market is up or unchanged, while the cost has dropped dramatically.
Of course, given today's political landscape, ending drug prohibition is a pipe dream (excuse the pun). So let's look at the next best solution — reining in the SWAT teams. SWAT teams do serve a useful purpose — to provide a swift, overpowering response in those emergency situations where a suspect presents an immediate threat to the public safety.
In this capacity, SWAT teams are not only appropriate, they've proven tremendously effective. We should get SWAT teams and similar paramilitary police units out of the business of serving search and arrest warrants and return them to the function originally envisioned for them — defusing dangerous situations like hostage takings, barricades and apprehending fugitives. Leave warrant service and other routine police procedures to traditional police officers.
Of course, that policy too is likely to be met with some resistance. So here are a few other, less drastic measures that would seem to be pretty intuitive:
End the Pentagon giveaways. One big reason paramilitary tactics have become so common in domestic policing is that Congress has made surplus military equipment available to civilian police departments, which they then use to form a SWAT team. Civilian police officers shouldn't be outfitted with equipment designed for war. The use of tanks, armored personnel carriers and other military equipment on civilians creates scenes more appropriate for police states and military juntas, not free societies.
Rescind asset forfeiture policies. Asset forfeiture enables police departments to sell off the property of drug suspects, keeping much of the revenue for themselves. Even suspects later acquitted or never even charged must then sue in court for the return of their property or reimbursement. Even then, success is rare, and court costs can run higher than the value of the assets seized. Such policies create corrupt incentives and invite overly aggressive drug policing.
Tighten search warrant standards. Too many of the several hundred botched raids I've researched happened because police collected tips from shady confidential informants, then failed to do enough corroborating investigation to verify the information. It doesn't take much evidence to procure a conventional search warrant. Using a SWAT team to kick down someone's door ought to require a bit more. Mere possession of an illicit substance should never be enough to merit these kinds of tactics. If we must use SWAT teams to serve drug warrants, it should only be in cases where it's clear the suspect is distributing, is armed and is likely to react to a warrant with violence.
More transparency. Search warrants should be tracked from the time they're applied for to the time they're executed. Once a warrant has run its course, it should be kept in a database, accessible to the public. Names of innocent suspects and informants could, of course, be kept confidential.
It's difficult to assert things like exactly how many SWAT raids go down in this country, how many are "no-knock" raids and how many are conducted in error because very few police departments keep such statistics. There's no reason why they shouldn't. Each of these raids should also be video recorded. Too many raids I've researched that have ended in gunfire have turned on the word of police versus the word of suspects and witnesses, when it comes to whether or not the raiding officers knocked before entering and whether or not they gave the suspect the appropriate amount of time to answer. A video recording would put such disputes to rest.
More accountability. Botched raids should be reviewed by external review boards, preferably staffed with civilians. Many cities already have such review boards in place to deal with other police brutality issues but have limited their jurisdiction when it comes to botched and erroneous police raids. Review boards are a great idea, but they should be permitted to review not only the conduct of police officers, but the judgment of the prosecutors and judges who sign off on these warrants, too. In too many jurisdictions, judicial oversight of the warrant process has degenerated into a rubber-stamp exercise. Scrutiny from an independent review board would be helpful.
We also need to remove the immunity we grant to police officers and government agencies when it comes to mistaken raids that result in death or injury. Qualified immunity (granted to individual officers) and sovereign immunity (granted to the government entities that employ them) raise the burden of proof so high that it becomes extremely difficult for the victims of botched or mistaken raids to recover damages.
Sadly, it's the threat of lost revenue, not concern for civil liberties, that seems most likely to spur governments to reform. In the few cases where a botched raid has resulted in real policy changes, it's been after a high-profile raid resulted in an expensive settlement or threats from the government's insurer to revoke coverage unless local officials implemented reforms.
Most of these suggestions would be relatively inexpensive. Many are simply changes in procedure. If mistakes are indeed as rare as defenders of SWAT raids attest, there should be no problem with local governments and individual officers agreeing to more transparency and accountability when it comes to the citizens they serve nor to assuming full liability when their actions or the policies they've endorsed lead to unnecessary violence against innocents or nonviolent offenders.
Radley Balko is a policy analyst for the Cato Institute specializing in "nanny state" and consumer choice issues, including alcohol and tobacco control, drug prohibition, obesity and civil liberties. Separately, he maintains the The Agitator weblog. The opinions expressed in his column for FOXNews.com are his own and are not to be associated with Cato unless otherwise indicated.