In which I disagree with Hank Waters on policing

Today in an editorial in the Columbia Tribune, Hank Waters writes:

For understandable reasons, police have a military mentality. Often they are confronted with maddening subjects who might be dangerous or life-threatening. Officers have a duty and a right to use force when necessary to control a situation.

I don’t disagree with the latter part of this statement, that law enforcement must confront dangerous suspects against whom it is necessary to use force. Where I do disagree with Mr. Waters is the notion that this mentality needs to be described in military terms; militaries and police forces are different things for different uses. Let me turn to former Cato scholar and police militarization expert Radley Balko to explain:

The problem with this mingling of domestic policing with military operations is that the two institutions have starkly different missions. The military’s job is to annihilate a foreign enemy. Cops are charged with keeping the peace, and with protecting the constitutional rights of American citizens and residents. It’s dangerous to conflate the two. As former Reagan administration official Lawrence Korb once put it, “Soldiers are trained to vaporize, not Mirandize.” That distinction is why the U.S. passed the Posse Comitatus Act more than 130 years ago, a law that explicitly forbids the use of military troops in domestic policing.

Over the last several decades Congress and administrations from both parties have continued to carve holes in that law, or at least find ways around it, mostly in the name of the drug war. And while the policies noted above established new ways to involve the military in domestic policing, the much more widespread and problematic trend has been to make our domestic police departments more like the military.

America was founded on this notion, that the military was to be kept in separate from the functions of domestic law enforcement. Early colonists were victimized by the depredations of what we may fairly describe as a military police force wearing the redcoats of the British Empire; sometimes these soldiers weren’t even Englishmen, but mercenaries from foreign lands. In those days Americans were subject to the over-enforcement of the customs laws, laws that were enforced through the use of writs of assistance (general warrants allowing British law enforcement to search for smuggled goods within any suspected place). One might draw a parallel between the brutality of these British law enforcers to the SWAT teams that today conduct military raids on domestic soil under the guise of looking for drugs, or for the service of warrants that implicate non-violent offenses. It should be no surprise that the SWAT teams and paramilitary policing of this current age is also financed through the same kinds of seizures and forfeitures that once paid a British King’s soldiers and mercenaries. We may turn to the noble words of James Otis, an American lawyer who protested this corrupt military enforcement and their use of these evil writs of assistance:

In the first place, the writ is universal, being directed “to all and singular justices, sheriffs, constables, and all other officers and subjects”; so that, in short, it is directed to every subject in the King’s dominions. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the Archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us: to be the servants of servants, the most despicable of God’s creation?

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well then,” said Mr. Ware, “I will show you a little of my power. I command you to permit me to search your house for uncustomed goods” – and went on to search the house from the garret to the cellar; and then served the constable in the same manner!

But to show another absurdity in this writ: if it should be established, I insist upon it every person, by the 14th Charles Second, has this power as well as the custom-house officers. The words are: “It shall be lawful for any person or persons authorized,” etc. What a scene does this open! Every man prompted by revenge, ill-humor, or wantonness to inspect the inside of his neighbor’s house, may get a Writ of Assistance. Others will ask it from self-defence; one arbitrary exertion will provoke another, until society be involved in tumult and in blood.

It is because American law enforcement has adopted the tactics of the colonial British military and mercenaries enforcing the King’s law that we’re having the discussion about SWAT teams and law enforcement corruption today. It would behoove Mr. Waters to understand this history, and be aware of the proper distinction between a military and a police force. When those lines are blurred, civilians pay the brutal price:

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