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Fading Posse Comitatus: The Increased Militarization of the Police



Blurring Posse Comitatus: The Increased Militarization of Police

This is the second in my series of posts on the social costs of drug prohibition. You can read the first message here.

In 1878, Congress passed Title 18 USC §1385, commonly known as the Posse Comitatus Act, to address the issue of using the military for civilian law enforcement purposes. Previous uses of the military, such as suppressing rioters during World War II Whiskey Rebellion (1791 – 1794), ended in disaster, prompting lawmakers to ban the use of military personnel to enforce national law except in certain circumstances. The underlying problem with using the military for such purposes lies in its function; because soldiers are trained to neutralize or eliminate the problem, issues of due process or civil liberties are not their primary concern (Marsh, 1991). In enforcing national law, civilian police departments ostensibly must protect civil liberties while enforcing the law.

However, these lines have become increasingly blurred in the prosecution of the War on Drugs™. In 1981, the Military Cooperation with Law Enforcement Act (MCLE) was passed to enable the army to do so work with local law enforcement authorities to more vigorously pursue the interdiction of human traffickers. MCLE allowed the military to expand police access to military bases, research and equipment, and to provide training on the use of military equipment (Cooper, 2015). Clinton’s 1997 expansion of transfers to local departments in the form of the 1033 program gave preference to departments engaged in counter-drug and counter-terrorism activities. Subsequent laws, such as the Defense Drug Interdiction Assistance Act of 2011, provided for even more assistance from – and cooperation between – the military and local law enforcement in the name of solving the transfer, sale and use of prohibited drugs.

Not only have state and local law enforcement officials leveraged equipment and intelligence, but they have also adopted the mannerisms and techniques of combat operations through the formation of elite paramilitary units. Special Weapons and Tactics (SWAT), Special Response Teams (SRT) and Paramilitary Police Units (PPU). These units were once an outlier, with their roots in incidents such as the Watts riots and the Texas Bell Tower shootings in the late 1960s (MacDonnell, 2016). The idea behind these units was that they would act as a last resort in situations where normal units would be unable to respond, especially in cases where suspected criminals were likely to be heavily armed. Although the original SWAT team, formed by the Los Angeles Police Department under Officer John Nelson and future Police Chief Inspector Daryl Gates, captured the public imagination, they largely remained an anomaly before 1973.

The declaration of war on drugs created a confluence of interests that encouraged these paramilitary police units. Now, not only are they a staple of major urban police departments, but many smaller departments employ them as well. At least 90% of departments serving a population of at least 50,000 citizens have established some sort of SWAT or PPU unit. That’s not surprising, since the desire to align enforcement resources with Washington’s mission to eradicate drugs is resulting in a windfall of free to low-cost equipment, training and information sharing. As an added bonus, this paradigm is self-perpetuating; the less effective the prohibition and community cleansing efforts are, the greater the justification for spending more money to redouble these efforts.

It should be noted that despite the vast resources available to these units, only a small number of officers receive and become part of this training, and many eventually return to regular duty. Therein lies the problem; As these officers, trained to view traffickers, suppliers, and users as enemies to be defeated in the hostile terrain of their communities, transition back into regular units, their perspective proves to have a profound influence on their fellow officers. Williams and Westall (2003) found that despite the difference in the likelihood of suspected violence between calls for SWAT officers and non-SWAT officers, the difference in the use of lethal force between the two groups is negligible.

This is how the police did it shifted from the crime prevention model to an arrest maximization model. As keeping the peace has given way to seeking confrontation, the possibilities for creating this confrontation have expanded, from ‘no-knock’ raids on homes to traffic stops targeting would-be drivers carrying large amounts of cash. This confrontational approach obviously increases the risk of violence, a topic that will be discussed in more detail later. Some scholars estimate that SWAT units are deployed a conservatively 60,000 times per year, with 62% of those deployments executing arrest warrants related to drug crimes, often using techniques such as no-knock raids. Paramilitary police units are also being deployed to patrol high-crime areas in full riot gear, worsening the image of the beleaguered communities.

In my next post I will address the issue of civil asset forfeiture.

Tarnell Brown is an economist and analyst from Atlanta.