POLICE OR SOLDIERS?

Since the expansion of the drug war in the 1980s – and especially since the attacks of September 11th, 2001 – local police forces have been enthusiastically adopting military weapons and tactics, and the trend has been as evident in South Carolina as in other states. Whether and to what extent this alarming tendency poses a threat to South Carolinians’ civil liberties is a question that ought to have received more attention than it has.

Since the creation of SWAT (Special Weapons and Tactics) teams in 1966, their use in addressing all manner of crime has increased dramatically. By 1980 there was an average of 3,000 SWAT raids a year and by 2006 this number had reached 50,000. If we further extrapolate from this growth trend we would expect around 70,000 to 80,000 raids to have occurred in 2011. This rise in raids was accompanied by a general expansion of the number of SWAT teams around the country even in small communities. Professor Peter Kraska of Eastern Kentucky University found that between 1985 and 1996, the number of SWAT teams in communities of 25,000 to 50,000 people increased by 157 percent. By 1996, 65 percent of communities this size had a SWAT team. (As a comparison, the population of Aiken, South Carolina is around 30,000.)

As the number and size of SWAT teams expanded, the types of crimes they were used to address expanded as well. Originally conceived of and created to deal only with certain highly volatile situations (hostage and terrorist situations, riots), SWAT teams gradually began taking on the role of serving warrants, particularly drug warrants and often for non-violent offenders. Kraska suggests that by 2005, 80 percent of all SWAT callouts were for warrant service.

What caused the change? The simple answer is the expansion of and emphasis on the drug war in the 1980s and the national response to the 9/11 attacks. More specifically, beginning in the early 1980s, Congress and the president passed a number of laws and orders that eroded the Posse Comitatus Act, the law prohibiting the use of the military in civilian policing. These actions included the Military Cooperation with Civilian Law Enforcement Agencies Act of 1981 along with a number of Congressional and executive directives throughout the 1980s, all of which encouraged cooperation between local police and the military as well as training of police by the military and active involvement by the military in enforcing drug laws. The National Defense Authorization Act of 1997, commonly known as 1033, took these efforts a step further by creating the law enforcement support program that eased the transfer of military equipment to civilian police departments. By 2005, 17,000 local police agencies from all 50 states had requested military equipment from the Pentagon at a cumulative value of more than $727 million.

Apart from encouraging cooperation between military and police and making it easier for police to obtain military weapons, the federal government has helped with funding. Andrew Becker and G.W. Schulz recently reported that, from 2001 to 2011, local police received $34 billion in federal grants. Homeland security awarded $2 billion in grants to local police in 2011 alone. According to the Homeland Security Research Corporation, the homeland security market for state and local police is expected to reach $19.2 billion by 2014.

Finally, the sources of information for search warrants as well as judicial review of SWAT raids have been significantly degraded since the creation of SWAT teams. Police have come to rely increasingly on confidential informants who receive cash for tips and are often previously convicted or suspected drug dealers as well. Simultaneously judicial oversight of raids has been weakened by multiple Supreme Court decisions. In Richards vs. Wisconsin the Court ruled that even if police were serving a warrant on a knock raid, they need not announce themselves before entering if they determined on the scene that such action was wise – thus effectively removing any real distinction between a knock and no-knock warrant. The Court also ruled in Hudson vs. Michigan that evidence seized as a result of an illegal no-knock raid may still be used at trial, which effectively removed any deterrent from police carrying out the illegal raids.

The result of all these policies has been sadly predictable. In addition to the general increase in the number of raids over time, the number of botched raids including raids on the wrong homes, the use of excessive force, and the killing of innocents during raids has increased. It’s hard to determine exact numbers relating to these increases, however, since police departments rarely keep information on the number of SWAT raids they carry out, and if they do they don’t share them. More broadly, despite a requirement in the 1994 Crime and Control Act, there is no comprehensive accounting of the use of police shooting and non-deadly force for the nation’s police departments. What information can be gathered depends on the cooperation of local police.

Maryland, the only state to require police departments to report how often and for what purpose they use their SWAT teams – a requirement that came about after a mayor’s home was mistakenly raided – found that in the second half of 2009 SWAT raids were carried out at a rate of 4.5 times a day. The report also found 94 percent of SWAT deployments were to serve search or arrest warrants, and in Prince George County more than half of SWAT deployments were in response to misdemeanors or non-serious felonies.

What data there is on a nationwide level suggests that Maryland’s experience is hardly atypical. In fact there are a number of signs as well as anecdotal evidence that South Carolina police departments have walked down the same increasingly militarized path as police departments in the rest of the nation.

For fiscal year 2014 the South Carolina State law Enforcement Division (SLED) was appropriated $28.1 million in Homeland Security Funding (only $80,000 was from the state’s General Fund) and $82.8 million in counterterrorism funds. In fiscal year 2013 SLED was appropriated $36.4 million in Homeland Security funding. In addition The Nerve recently reported that the ACLU has filed open records requests with the Beaufort, Horry, Richland and York sheriff’s departments to “determine the extent to which local police departments are using federally subsidized military technology and tactics that are traditionally used overseas.” The Beaufort and Richland County departments stressed the extensive nature of the information requested, York County hadn’t responded to the request at all at the time of publication, and the Horry County Department claimed that its records were exempt. If any of the departments do respond in full, they’ll likely be revealing items such as “The Peacemaker” – an armored personal carrier owned by the Richland County Sheriff Department that is equipped with a .50 caliber machine gun turret (a caliber that the U.S. military specifies should not be used on people).

Outside of the acquisition of federal funds and military equipment, South Carolina, like other states, has seen botched raids and raids in which vastly excessive force was used in halting non-violent crimes. A few examples:

From 2006 to 2008 SWAT teams raided a number of poker games in Charleston suburbs, some with a mere $20 buy-in. An attorney representing some of the players described the raids: “The typical police raid of these games … is to literally burst into a home in SWAT gear with guns drawn and treat poker players like a bunch of high-level drug dealers.”

In 2010 Aaron Awtry was hosting a poker tournament in Greenville when police began breaking down his door. Awtry assumed he was being robbed and fired a handgun he owned through the door, wounding an officer. At which point Awtry was shot in retaliation. As a result of the incident, Awtry pled down an attempted murder charge and is serving five years in prison. No one in the home at the time of the raid says they heard a knock or announcement.

In 2003 police raided Stratford High School in Goose Creek, lining students face down at gunpoint while police dogs sniffed lockers and backpacks. No drugs were found.

In 1998 drug suspect Chinue Tao Hashim was killed in a SWAT raid in Greenville when police thought he was reaching for a gun. It turned out to be a glint from a wristwatch. The charges were dismissed against the officer.

These are just a few examples taken from press articles. There are almost certainly many more, but South Carolina keeps no official records of the number of SWAT raids.

Using these kinds of raids and military equipment for the policing of crimes other than that for which SWAT teams were originally intended often leads to tragic consequences and creates an “us versus the enemy” military mindset among police. This mindset has contributed to events such as the estimated shooting of some 1,300 dogs a year, and has led to police in some cases using SWAT teams to enforce regulatory law – for instance, underage drinking, and barbering without a license.

The question arises: What can South Carolina do, if not to reverse this trend, at least slow it down? Randy Balko, in a report for the CATO Institute, provides a number of policy recommendations for states seeking to stem police militarization.

SWAT teams should be legally restricted to their original functions (hostage situations, counterterrorism, riots) and should not be permitted to serve warrants for other crimes.

Citizens should be protected from criminal charges for taking actions to defend their homes from police when police fail to identify themselves.

Any damages resulting from botched raids that harm or kill innocent or non-violent offenders (including mistaken address raids) should come directly from law enforcement budgets.

Search warrants shouldn’t be granted on the tip of only one informant, and police should have to reveal to judges, magistrates, and defense attorneys if a tip they plan to or have acted on came from an informant who was compensated, granted leniency for another crime, or has a criminal record.

Records should be kept of all raids, including video records.

Civilian review boards should be established with full access to raid records.

Raid victims who plead guilty to minor charges should still be allowed to file civil suits against police for damages.

Officers should be held accountable with appropriate punishments for inappropriate actions during raids.

To this list we would add that all legislative bodies that have the power at the state or local level should reject appropriations of federal funds (such as Homeland Security funds) intended for use in purchasing military-style weapons.

If these reforms are enacted, the trend towards increasing militarization of police in South Carolina would be significantly slowed if not halted. Police are not soldiers; they aren’t there to win wars or defeat enemies but to keep people safe. Citizens shouldn’t have to fear those members of society whose stated purpose is to preserve their safety.