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Police militarization and the challenge for the courts

The American legal system is capable of providing independent evaluations of — and crafting remedies for — police excesses and overreaching when those occur

The July 2013 issue of The ABA Journal, the publication of the American Bar Association, featured an article by Radley Balko titled “How did America’s police become a military force on the streets?” Part history lesson, part social commentary, and part anecdotal account of law enforcement raids gone wrong, the piece argues that today’s American police forces are overly militarized.

The article is critical of multijurisdictional drug task forces, unrestricted federal grant funding to fight drugs and buttress homeland security, and excessive development and use of Special Weapons and Tactics (SWAT) teams.

These trends, the author alleges, have their roots in the War on Drugs and the post-9/11 War on Terror. If police in black uniforms can invade the homes of unsuspecting people in the night to search for drugs using their arsenal of weapons and equipment typically utilized by soldiers in wartime, then America has become a place its Founding Fathers would not recognize. Whether one agrees or disagrees with the author, his observations implicate important societal and cultural issues. Fortunately, these issues are within the Constitutional republic’s ability to address.

Civil Rights Statutes Have a Long History
The American legal system is capable of providing independent evaluations of — and crafting remedies for — police excesses and overreaching when those occur. The criminal justice system provides for probable cause review by independent judges or magistrates prior to the issuance of warrants. If such warrants result in charges, the system provides for speedy judicial review of police actions. For those cases lacking in probable cause or that represent egregious abuses of authority, civil rights statutes provide for injunctive remedies and monetary damages against offending police departments and individual officers.

The Civil Rights Act of 1871 — also known as the Ku Klux Klan Act — was passed during Reconstruction in order to prevent violations of the Constitutional rights of African Americans by state officials. In the face of widespread racial discord in the Deep South, including violence and murder abetted by white state officials sympathetic to the Klan, the law permitted the President to suspend the right of habeas corpus.

Federal troops enforced the law, rather than state militias, and members of the Klan were prosecuted in federal court. After the KKK was effectively dismantled, the civil rights law became moribund and was not much used for almost a hundred years.

The revival of civil rights lawsuits against officials is generally recognized as beginning with the U.S. Supreme Court’s decision in the case of Monroe v. Pape, 365 U.S. 167 (1961). In Pape, six members of a black family (including four children) sued the city of Chicago under 42 U.S.C. § 1983 for violations of their rights resulting from a warrantless search of their home and arrest of the father by the police in the predawn hours.

The family alleged that the police ransacked their home and made the family stand naked in the living room before arresting the father and holding him without charge or arraignment.

After reviewing the legislative history of the Civil Rights Act of 1871, the Court held that Congress intended to give a remedy to parties deprived of Constitutional rights, privileges, and immunities by an official’s abuse of his position. The statutory words “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory” included acts of officials or police officers, even when such officials or officers could not show any authority under state law, custom or usage to do what they did, or even who violated the state constitution and laws.

In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court considered whether local governing bodies — and local officials sued in their official capacities — may be sued directly under § 1983 for monetary, declaratory, and injunctive relief.

Reversing a portion of the Pape decision, the Court concluded that local municipalities did not enjoy immunity from lawsuits in those situations where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. This case broadened the definition of “person” to include cities and local governments.

The issue of police liability for failure to train agency employees was the subject of the decision in City of Canton v. Harris, 489 U.S. 378 (1989). In that case, the police brought an incoherent woman into the police station. Despite the woman’s repeated falls to the floor, the police did not summon medical assistance for her. She later sued the city for failing to provide her with medical attention while in police custody, styled as a violation of her Fourteenth Amendment rights under 42 U.S.C. § 1983.

The Supreme Court held that a municipality may, in certain circumstances, be held liable under § 1983 for constitutional violations resulting from its failure to train its employees. The Court further held that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come into contact.

These civil rights cases helped to establish, in broad terms, an outline of civil rights lawsuits under Section 1983 for allegedly unconstitutional actions by the police. The language of Section 1983 provides no substantive rights, but it serves as the procedural vehicle for civil rights lawsuits. Section 1983 plaintiffs may allege deprivation of their rights under the Constitution, federal statutes, and regulations implementing these statutes. Successful plaintiffs may recover reasonable attorneys’ fees under 42 U.S.C. § 1988(b).

Outside Monitoring, Consent Decrees, and Review Boards
The police department in Oakland, California, has been the subject of civil rights cases which were ultimately resolved in the civil court system. A 2003 Negotiated Settlement Agreement resolved the so-called “Riders” class action lawsuit, which alleged that four police veterans had engaged in acts of assault and battery, excessive use of force, false arrest, and falsification of evidence and police reports. The City of Oakland settled with 119 plaintiffs for $10.9 million.

Another case involving the Oakland police department was settled in 2010 for $6.5 million. The “Warrants” case was a proposed class action filed in 2008 alleging that the Oakland police illegally obtained search warrants based on false or misleading information. Plaintiffs in that case also sought additional training and accountability for police officers.

Monitoring by outside entities can help to ensure law enforcement accountability to the public. Monitoring may be federal, such as when the U.S. Department of Justice (DOJ) investigates a law enforcement agency under the police misconduct provision of the Violent Crime Control and Law Enforcement Act of 1994 or enters into a consent decree in a civil or criminal case.

Consent decrees are contractual agreements between the parties to a lawsuit. For instance, a police department may agree to stop the allegedly illegal conduct for which it has been sued without admitting fault in exchange for an end to the litigation. Compliance with the terms of such agreements is supervised by courts or independent monitoring groups.

Consent decrees ordinarily involve reliance on government actors to protect the rights of citizens. One method that does not is the use of independent civilian police review boards or citizen oversight boards. Drawn from the community and representing a broad range of interests from an outside perspective, civilian review boards are initiatives designed to involve the community with the resolution of complaints and increase trust between the police and those they serve.

Civilian review boards may address complaints or issues such as “racial profiling, excessive use of force, deliberate violations of sanctioned evidence handling procedures, and corruption.” Civilian review boards can be an important tool in restoring credibility to the police while assuring citizens that their concerns have been considered by a neutral body outside of the legal system.

The legal system is sufficiently flexible to contend with the evolution of policing and respond to the issues presented by police misconduct, whether that takes the form of law enforcement acquiescence to the KKK and failure to enforce the laws in the Reconstruction Era or aggressive “military style” SWAT team tactics today.

Civil liability represents a strong incentive for law enforcement agencies to establish and follow lawful policies, and Section 1983 is a formidable remedy for violations that can result in multimillion-dollar judgments or settlements. Monitoring by outside agencies such as the DOJ and civilian review boards also provides for public accountability.

Joanne Eldridge has more than twenty years’ experience as a government attorney and advocate. She served on active duty with the U.S. Army Judge Advocate General’s Corps for over ten years and has extensive experience in criminal and Constitutional law in both federal and state court. She is a graduate of Boston College and the George Washington University Law School and holds a Master of Laws degree in military law. She has been admitted to practice before the Maryland Court of Appeals, the U.S. Army Court of Criminal Appeals, the U.S. Court of Appeals for the Armed Forces, the U.S. Supreme Court, the Colorado Supreme Court, and the Supreme Court of New Hampshire. She is currently practicing law in northern Virginia.

Contact Joanne Eldridge