Constitution Check: Is there a problem in outfitting local police like combat soldiers?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at a new debate over the nature of local policing, and if a program of military giveaways may have had some seriously unfortunate consequences in the Ferguson situation.

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THE STATEMENTS AT ISSUE:

“At a time when we must seek to rebuild trust between law enforcement and the local community, I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message….It is clear that the scenes playing out in the streets of Ferguson over the last several nights cannot continue.”

– Excerpt from a statement August 14 by U.S. Attorney General Eric Holder, Jr., about the unrest in the St. Louis suburb of Ferguson, Mo., in the wake of a black youth’s death from gunshots fired by a white local police officer.

“The intensive militarization of America’s police forces is a serious menace about which a small number of people have been loudly warning for years, with little attention or traction….The harrowing events of the last week in Ferguson…have shocked the U.S. media class and millions of Americans. But none of this is aberrational.”

– Excerpt from a column by investigative journalist Glenn Greenwald, posted on his website, The Intercept, on August 14, sharply criticizing the transfer of military gear to local police.

“American policing has become unnecessarily and dangerously militarized, in large part through federal programs that have armed state and local law enforcement agencies with the weapons and tactics of war, with almost no public discussion or oversight….The use of paramilitary weapons and tactics to conduct ordinary law enforcement…has no place in contemporary society.”

– Excerpt from a lengthy American Civil Liberties Union report, released in June, under the title: “War Comes Home: The Excessive Militarization of American Policing.”

WE CHECKED THE CONSTITUTION, AND…

It was an article of civic faith, with America’s founding generation, that a “standing army” during peacetime was a menace to liberty. Indeed, one of the reasons for the break from Great Britain was the perceived abuse by the Crown in the use of its uniformed military to keep the colonists in line. Parliament, in a series of “quartering acts,” had required the colonists to pay part of the costs of those forces, and actually compelled colonists to provide housing for British soldiers if there were no other place for their lodging.

Some of the resulting resentment led colonial ratifying assemblies, when considering the new Constitution, to demand some protection against such intrusions. The result was the Third Amendment. Although its ban on the quartering of soldiers in private homes now seems very dated, it has a continuing resonance in an innate American suspicion of military forces being used to keep order on the home-front.

And, while the fact is not well known in this country, there has long been – since 1878 – a federal law that generally forbids the use of national military troops in law enforcement within this country. It is called the “Posse Comitatus Act.” After the terrorist attacks in September 2001, Congress relaxed the Act’s ban, permitting the president to deploy troops to keep order within the U.S. – but only when state officials are overwhelmed by domestic violence, a terrorist attack, or a natural disaster. It thus is still, legally speaking, a rarity to have federal soldiers in the role of domestic peacekeepers.

There is a strong echo of the suspicion that has long been a part of the American civic psyche playing out now in the Missouri suburb of Ferguson, amid heightened racial tensions between citizenry and local police.

Like many municipal police departments across the country, the Ferguson department has been amply supplied – often for free — with surplus military weapons and vehicles, unneeded castoffs of Pentagon surplus from various American operations abroad.   And, at the outset of sometimes violent unrest in that Missouri community, those imposing supplies were rolled out in a way that seemed fitting for a combat zone. Quickly, officials at the state and national level concluded that this would only aggravate the attempt to restore order.

There is no doubt, constitutionally, that keeping order on the streets of every American city and town is a duty assigned to state and local government. That is the very essence of the broad concept of “police power.”   The federal government, constitutionally, does not share in the “police power” except in times of unmanageable domestic unrest.

What has happened in the post-9/11 era, however, is that the clear demarcation of authority between local police and national military forces has been blurred, by beefing up local police with the weapons, machines and tactics of war.   So outfitted, the local officers are still carrying out their accustomed duties, but the impression they convey is conspicuously more threatening to local populations not normally confronted by armored personnel carriers and machine guns.

Moreover, many critics of such military displays believe that the actual training that local police get to enable them to deploy such equipment has a strong tendency to lead officers to feel embattled and threatened, as if they were being readied for combat duty. This may be an exaggeration, but the mere possibility of that happening can excite suspicion and anxiety among local citizens, as it certainly has among civil liberties advocacy groups.

And the nightly portrayal of these displays on national television news and commentary broadcasts has added to the damaging effect of the imagery.   In the recent TV coverage of the Ferguson unrest, the imagery has stirred state and national leaders to act to try to ease the sense of crisis by taking the implements of war off the streets.

One potential practical effect of this experience is that a new debate seems to be starting over the nature of local policing, and a part of that debate apparently will focus on whether the program of military giveaways may have had some seriously unfortunate consequences, and may well need to be modified. Some of the resentment behind the Third Amendment perhaps could be a helpful part of this public discourse.

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