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Read the Primer Learning from Portland The excesses of federal policing moved to the forefront of the national conversation when DHS agents entered Portland to handle violence during protests around the Mark O. Hatfield United States Courthouse. The crimes some agitators committed were unacceptable and began well before federal officers arrived. This select group’s actions do not justify DHS agents’ brutality and poor judgment. Federal officials from DHS sent the Customs and Border Protection (CBP) SWAT team to Portland, despite its lack of riot control training and CBP’s history of Fourth Amendment violations.[1] Incidents of CBP abuse include using clouds of tear gas for crowd control,[2] making arrests in in unmarked vehicles[3] without identifying themselves and even “proactively arresting”[4] individuals who looked like they might commit a crime. Unfortunately but unsurprisingly, CBP is not the only federal law enforcement agency with a poor track record on civil liberties. Soon after nationwide Black Lives Matter protests began in May, the DOJ authorized the DEA to “enforce any federal crime committed as a result of protests over the death of George Floyd” and “conduct covert surveillance”[5] on citizens. Considering that the average citizen commits three felonies a day[6], the DEA could feasibly target and arrest even relatively law-abiding citizens. The DOJ must refuse to authorize specialized agencies like the DEA and ATF for general policing capacities, especially when they already have plenty of more appropriate resources at their disposal. After Portland, it is abundantly clear that when given approval, federal law enforcement will not hesitate to abuse Americans’ civil liberties. This cannot happen again during Operation Legend or any other federal policing mission. The mistakes DHS made in Portland should be used to spur reforms that will reduce the risk of harm throughout Operation Legend and future federal policing missions. Localizing Police Operation Legend began with the deployment of agents from the FBI, U.S. Marshals, the DEA, and the ATF to Kansas City with the broad objective of fighting violent crime. The program has since expanded to 9 other cities including Albuquerque, Kansas City, St. Louis, Milwaukee, Chicago, Detroit, Cleveland, Baltimore, and Philadelphia. Sending federal agents to deal with generalized violent crime sets a troubling precedent. If stopping local street crime is a good enough reason for DOJ agents to operate in cities, they essentially have an excuse to stay there indefinitely. Americans are all too familiar with mundane police encounters escalating into tragedies and should be wary of any proposal to increase the size or scope of law enforcement measures. Limiting federal agents’ power to make arrests for crimes that fall under local jurisdiction would be a key reform for reigning in the broad scope of Operation Legend. Federal agents should instead enforce only a specific objective -- such as protecting federal property from damage -- with appropriate exceptions for violent criminals who present an immediate danger to themselves or others. Americans deserve minimized risks of escalation and a police force that can be held accountable at the local level. Federal agencies should also have to publish their mission and reason for entering a city, specific goals that would complete the mission (in terms of absolute crime rate, percent decline in violent crime, etc.), and a fixed end date for the mission, at which point the agency would leave the city even if it failed to fully achieve its objectives. Beyond providing a more specific and measurable mandate than “fighting violent crime”, this requirement would disincentivize federal police from continuing to waste resources on ineffective law enforcement programs. Law enforcement agencies would have to re-orient their priorities toward strategies that actually succeed in making America safer. Addressing Biases The DOJ has a duty to address the issue of racial prejudice among its officers. The agencies involved in Operation Legend have exhibited racial bias for years, long before the Black Lives Matter movement drew additional attention to racism in law enforcement. These agencies perpetuate a criminal justice system that inflicts violence upon marginalized communities for committing nonviolent offenses. In June, a group of 76 former DEA agents released a statement accusing the agency of discrimination against Black employees. Only eight percent of the DEA’s special agents are Black, and the authors of the letter claimed that a lack of Black agents in oversight positions limits leaders’ awareness of racial disparities in policing. And they have a point when it comes to the DEA’s activities on the ground. Over 10 years and 179 arrests, the DEA did not target a single white defendant in the Southern District of New York.[7] The ATF is no better. In 2014, 91 percent of the people ATF incarcerated in its “stash house” stings were ethnic minorities.[8] And, exposing an indifference toward LGBTQ+ issues, the ATF refuses to transfer firearms to Americans who will not identify themselves as strictly “male” or “female”.[9] Recruiting more federal agents from marginalized populations is a key first step in reducing biases from within the agencies. However, a more ambitious reform agenda is necessary to significantly change the way the federal government interacts with BIPOC and other minority communities. The DEA and ATF both put extensive resources into prosecuting nonviolent crimes, like drug sales and firearm possession. Deprioritizing federal enforcement of non-violent crimes, demilitarizing both agencies and shifting operations toward public health rather than policing would put our country’s communities at lower risk of police violence. This would also encourage U.S. residents who have substance abuse disorders to seek treatment voluntarily without the risk of incarceration, which occurred when Portugal decriminalized drugs.[10] DEA and ATF functions that do prosecute serious crimes, such as drug and gun trafficking, can be absorbed into the FBI. Police Accountability Criminal justice reform advocates have been fighting for greater transparency and accountability from their local and state police forces, and they deserve the same from federal law enforcement agencies. In missions like Operation Legend, the DOJ should work with an independent task force to identify appropriate target cities based on objective crime metrics. This policy would help soothe concerns that the executive branch is picking Operation Legend’s cities of operation for political reasons. The DOJ should also audit its internal affairs department to ensure that its internal accountability mechanisms are on par with or above those of other large law enforcement entities. A strong internal affairs department helps federal police forces promptly dismiss reckless and violent officers without reassignment. Federal law enforcement officers, unless they are going undercover for an approved reason, should always be required to wear name badges and use appropriately marked vehicles when making arrests. Officers in many local and state police departments across the country already wear them to encourage transparency and assure detainees that their arrests are legitimate. Defendants should not be prosecuted with resisting arrest if the arrest was made in an unmarked vehicle or the agents were not wearing visible name badges. Of course, none of these rule changes mean anything if they are not enforced. Under the doctrine of qualified immunity, victims of abuse by law enforcement officers cannot hold their perpetrators accountable unless there was an identical case in which a federal court ruled that the specific conduct was illegal. For example, a federal appeals court used qualified immunity to throw out the case of Alexander Baxter, who had police dogs unleashed on him after he had surrendered, because in a prior case, the police sicced their dogs on a man lying down with his hands up, while Baxter was sitting with his hands up.[11] Abolishing a doctrine that allows for such acute injustice at the hands of law enforcement officers is just common sense. Reining in the Police State One of the boldest and most effective things the federal government could do to reduce the risk of violent, unconstitutional interactions with civilians would be to decrease its level of interference in U.S. residents’ lives overall. The DOJ and other federal departments have continually created and perpetuated systems that heighten the federal government’s police presence. Since 2000, the ranks of federal police officers in the U.S. have grown by “roughly 2,500 officers every year.”[12] As of 2016, the DOJ alone employed over 43,000 full-time cops. The DHS employed over 62,000.[13] Dropping violent crime rates over the last 20 years[14] indicate no objective reason for the federal police force to keep growing. Perhaps instead of sending more federal agents into the streets, the DOJ should consider doing an audit on the usefulness of this perpetual growth and cutting down its forces in the coming years. Congress should promote this policy of decreased federal interference by eliminating fluff in the federal code. Currently, there are quite literally too many federal criminal laws to count,[15] allowing federal law enforcement to threaten Americans over dozens of nonviolent offenses that ought to be left to state and local governments (or, in some cases, eliminated altogether). In situations where the police response is more aggressive than the crime itself, the federal government would reduce overall violence by taking a step back. Finally, the federal government should end the practice of pre-trial civil asset forfeiture. Under our current system, federal officials only need to tie an asset to a crime “by a preponderance of the evidence” before seizing it.[16] Once they seize these assets, like cash or a car, the original owner bears the burden of proving that they had nothing to do with the alleged crime before getting the assets back, even if they were never charged or convicted.
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