Glenn Harlan Reynolds

Often, if you wait long enough, an idea comes around. Back in 2006, I wrote a piece for Popular Mechanics on how the federal government's transfer of surplus military equipment to local police departments -- sometimes in very small towns -- was leading to "SWAT overkill."

My complaints didn't get much traction with either the Bush or the Obama administrations. But now, in the wake of what many consider to be an overly militarized police response in Ferguson, Mo., President Obama has ordered a review of federal programs -- in the departments of Defense, Justice and Homeland Security -- to arm local police with military weapons.

Lawmakers -- from Rep. Hank Johnson, D-Ga., and Sen. Claire McCaskill, D-Mo., to Sen. Rand Paul, R-Ky., who quoted my 2006 piece in an op-ed in TimeMagazine -- are looking at legislation to limit transfers. This is good. There's a role for SWAT teams in limited circumstances, but they've been overused in recent years, deployed for absurd things such as raids on sellers of raw milk. The problem is, when you have a hammer, everything looks like a nail. And when you have cool military equipment, there's a strong temptation to use it, just because, well, it's cool. (Federal regulatory agencies have succumbed to SWAT Fever too.)

I don't entirely blame the police. If somebody gave me a Bradley fighting vehicle, or an Apache helicopter, I'd take it.

But blurring the lines between civilian policing and military action is dangerous, because soldiers and police have fundamentally different roles. Soldiers aim outward, at the nation's external enemies. Civil rights and due process don't matter much, because enemies in wartime aren't entitled to those. Nor are soldiers expected to be politically accountable to the people they shoot.

But police turn their attention inward. The people they are policing aren't enemy combatants, but their fellow citizens -- and, even more significantly, their employers. A combat-like mindset on the part of police turns fellow-citizens into enemies, with predictable results.

I sometimes think the turning point was marked by the old cop show Hill Street Blues. Each episode opened with a daily briefing before the officers went out on patrol. In the early seasons, Sergeant Phil Esterhaus concluded every briefing with "Let's be careful out there." In the later episodes, his replacement, Sergeant Stan Jablonski, replaced that with "Let's do it to them before they do it to us." The latter attitude is appropriate for a war zone, but not for a civilized society.

This attitude is more dangerous than a Bradley, and the main danger of giving police military equipment isn't that they'll be well-armed, but that it fosters a war-zone mindset. The notion of unaccountable power is what does the real harm. A recent Washington Post column by an LAPD officer saying "If you don't want to get shot, Tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you," illustrates the problem.

How do you control unaccountable power? By making it accountable. How do we do that with police? I think there are three key actions.

First, we should abolish police unions. All public-employee unions are suspect, given that they're basically organizations to take more money from taxpayers while minimizing accountability, but this is even more troubling where the employees in question carry guns.

Second, we should equip all patrol officers with body cameras that record everything that they do. This actually benefits both officers and the citizenry: When San Bernardino adopted them, it found significant drops both in complaints against the police and in police use of force. In fact, though calls for body cameras initially came from police-reform proponents, now many police support them too.

Third, we need to revisit the idea of "qualified immunity." Right now, police officers enjoy immunity from lawsuits so long as they act in "good faith," and courts stretch the notion of good faith pretty far. This change from the common law -- where police weren't immune to lawsuits -- was not the product of legislation and debate, but of judicial activism: There's nothing about it in the Constitution; judges just thought it was a good idea.

I think we need to take another look at that. If nothing else, any legal immunities enjoyed by public employees should come from the representatives of the people -- legislatures -- not from unelected judges. Public employees shouldn't act like public masters. It's time we made that clear.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author ofThe New School: How the Information Age Will Save American Education from Itself.

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