Law Enforcement’s Nascent Epoch: Maleficent Policing

November 28, 2016
Guest Post

by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

As law enforcement agencies throughout the United States begin to re-imagine and re-evaluate their role under an administration that purports to be wholly and unquestioningly supportive of the police, those of us who observe and comment on police-related issues should be concerned, very concerned. Four issues are worthy of immediate scrutiny: technology, immigration, “stop and frisk” and militarization.

Technology

The story broke, predictably, on a Saturday during the Thanksgiving weekend. The Boston Globe reported that the Boston Police Department planned to spend $1.4 million on software “that will scan social media and the Internet for criminal activity and threats to public safety.” So a local police department, and certainly not the first local police department of the over 18, 000 police departments that exist in the United States, will be monitoring our use of social media and flag keywords that might be indicative of criminal involvement or “threats to public safety” (whatever that means in the eyes of the police).

Welcome to the bad new days of law enforcement, circa 2017. When last I checked, I had tweeted over 5000 times since 2009, and many of my tweets have been stridently critical of the police use of deadly force and police violence, and these tweets no doubt contained words such as “shooting,” “police,” “violence,” “deadly” and “#BlackLivesMatter.” I will no doubt be flagged as an enemy of the state and a threat to public safety by the police department where I worked for 27 years.

I have posted updates on LinkedIn that contained writings found on the American Constitution Society Blog, again often critical of police practices and incidents that were violative of the Constitution and civil rights and civil liberties, particularly those of people of color. For this I will certainly be found in some law enforcement database using this technology under the category “cuck.” We should be extremely wary of high-tech social media and Internet tracking tools being in the law enforcement “arsenal” and be mindful when officials justify these acquisitions using red herring terms such as “combating terrorism,” “fusion centers” and “terror threats.”

The police will be watching us, virtually, engaging in activities that law enforcement may find vexing or objectionable, but that are nonetheless protected by the Constitution. This entry into social media surveillance, coupled with law enforcement’s secret use of so-called “Stingray” devices to monitor people’s cell phone activity, has consequential implications for privacy protections in this emerging law enforcement epoch.

Immigration

We will likely see the resurrection of the Immigration and Customs Enforcement (ICE) notorious 287 (g) program, a nefarious policy that empowered local, state and county law enforcement officers to enforce federal immigration laws. Largely mothballed by the Obama administration in late 2012, 287 (g) would unceremoniously interject the enforcement of civil and administrative immigration laws into communities that have long seen relationships between the police and the people of color who live and work there characterized by acrimony, suspicion and mistrust. The 287 (g) program or some similar initiative would prove an attractive “force multiplier” for an administration committed to the forcible removal of millions of undocumented immigrants.

“Stop and Frisk”

On Aug. 12, 2013, United States District Judge Shira Scheindlin ruled that the New York City Police Department’s “Stop and Frisk” policy violated both the Fourth and Fourteenth Amendments in its targeting of African American men for stops by NYPD officers. In her decision Judge Sheindlin observed, “The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk, and . . . neighborhood watch - regardless of the collateral damage done to the majority of innocents. It's like burning down a house to rid it of mice.” The deBlasio administration decided not to appeal the decision and the NYPD amended its stop and frisk policy to comply with the decision of the federal court.

A July 2015 report by the ACLU in Boston found that “Blacks during that period (2007-2010) were the subjects of 63.3% of police-civilian encounters, although less than a quarter of the city’s population is Black” (https://aclum.org/our-work/aclum-issues/racial-justice/ending-racist-stop-and-frisk/).

It seems likely that uninformed and factually incorrect statements made by the President-elect pertaining to the issue of the police use of so-called Terry stops, will contribute to a return to and an increase in law enforcement engaging in the practice of suspicionless stop and frisk detentions of men of color. There is little disincentive to law enforcement engaging in these stops with an Attorney General and a Department of Justice that will be ideologically aligned with local, state and county law enforcement practices that target men of color beneath a veneer of suspicion that is based on racist stereotypes.  

Militarization

In June of 2014 the ACLU published “War Comes Home: The Excessive Militarization of American Policing,” two months before the shooting death of Michael Brown in Ferguson, Missouri. The scathing and meticulously documented report, coupled with the police violence on gruesome display in Ferguson in the aftermath of the shooting death of Brown, brought the glare of the public spotlight squarely on to the issue of police militarization and associated excessive force. Military vehicles, weapons, uniforms, aircraft and other equipment were routinely used not only in the police responses to peaceful protests and constitutionally protected acts of civil disobedience, but also in needless and dangerous SWAT deployments in executing search warrants in private homes for nonviolent crimes and drug offenses.

Most of the funding for the purchases of the military equipment for local law enforcement came from the federal government through widely available grants from the Department of Homeland Security and the Department of Justice. The Department of Defense (DOD) also administered its so-called “1033 Program,” which distributed hundreds of millions of dollars worth of surplus military vehicles, aircraft and weapons to local law enforcement at no cost. In the wake of deadly force incidents involving the police in Ferguson, Staten Island, Baltimore, Chicago and many other cities, the Obama administration sharply curtailed the 1033 Program and the well of funding available to the police for military equipment and weapons purchases saw increased scrutiny.

It is highly likely that the new epoch of policing will see a restoration of funding for all things law enforcement, particularly given that the nation’s largest police organization, the National Fraternal Order of Police, made a rather fortuitous endorsement in the recent presidential election. We will also no doubt see the reemergence and expansion of programs like the DOD 1033 Program.

The new norm for policing in 2017 then is not actually “new” at all, but a return to the bad (not so) old days that were only temporarily sidelined by the ACLU report, Ferguson and the many other locations where the police narratives following excessive and deadly force incidents against people of color were stridently interrogated and scrutinized.  

Witness the disgraceful response the largely peaceful protests at the Dakota Access Pipeline in North Dakota, where the police have used fire hoses against protesters in sub-freezing temperatures, as well as chemical weapons, concussion grenades, rubber bullets and beanbag and sponge rounds. A young woman attending the protest had her arm blown off when police fired a concussion grenade into the crowd. According to the ACLU, there are 75 law enforcement agencies from ten states, some as far away as Louisiana, that have sent officers to the scene, where the protesters number in the hundreds.

The public outcry and anger at this hysterical and hyper-exaggerated response to civil disobedience and protest in North Dakota has been largely muted compared to the fearsome display of public indignation seen in places like Ferguson, Baltimore and Chicago only two years ago. The police in North Dakota are protecting property, not people and we are the worse for this, all of us. We may, I fear, continue to bear witness to police maleficence (and of this I hope that I am wrong).            

Tom Cottle, my cherished mentor and dissertation advisor, wrote presciently about peril and the nature of the injustice that too many of us who are African American, Latino and Latina, adherents of non-Christian faiths, women, the disabled, LGBTQ persons (Others), will confront in the days following Jan. 20, 2017.  Cottle observed, “Many of us have known shame, yet another residue of injustice. We know what it’s like to have society, through its agents, proclaim not only that we have done bad, but that we are bad.”