Airmen from New Jersey Air National Guard’s 177th Security Forces Squadron and local law enforcement officers move toward sound of gunfire, October 24, 2014, during active shooter exercise at Atlantic City Air National Guard Base, New Jersey (U.S. Air National Guard/Matt Hecht)
Policing in America How DOD Helped Undermine Posse Comitatus
By Steven C. Dowell, Jr.
ith the recent events of police follow—aptly, to protect and to serve. you’re pro-police, then you surely hate shootings and domestic ter- Claims of lingering societal racism and black people.”3 But why should this W rorism, many are calling into police brutality are under constant concern the Department of Defense question whether our law enforcement scrutiny by social and police reform (DOD)? strategies are standing up to the ideals activists and media coverage.1 Other At some point, the image of civilian that police everywhere are known to studies state these claims are myths police changed from the popular public being reported daily as facts and are, servant, such as Sheriff Andy Griffith sadly, finding their way into changing of the 1960s’ The Andy Griffith Show, public policy.2 Tension between these to the strict enforcer of the law, as por- First Lieutenant Steven C. Dowell, Jr., USA, is arguments was succinctly stated best trayed in the movies RoboCop (1987) currently training to become a Civil Affairs Officer at the John F. Kennedy Special Warfare Center as “if you’re pro–Black Lives Matter, or Judge Dredd (1995). Today, civilian and School at Fort Bragg, North Carolina. you’re assumed to be anti-police, and if police agencies’ capabilities and mindsets
58 Features / Policing in America JFQ 85, 2nd Quarter 2017 are intimately related to DOD training When military personnel supplied their Beginning with structure, research- and resourcing. Recent questions over utilities in aid of law enforcement, civilian ers who study civilian policing versus similarities between civilian police and police units found it hard to ignore those militarized policing claim that there the military involve the use of a robot units’ methods given their effectiveness is beginning to be a “blurring of the and explosives to end a standoff between in locating a sniper’s “point of origin,” boundary between policing and soldier- a shooter and Dallas police after several just as the military was trained to do in ing.”13 As mentioned, civilian police officers were murdered in July 2016. combat scenarios; however, if the sniper organizations receive an ever-increasing This event grasped national headlines was found, it was expected that the civil- number of tactics and ideologies from just as the 1992 Los Angeles riots did, ian police would make contact.9 In fact, it the military. This training includes, and again, in 2005, during Hurricane was found that “aerial photographic and but is not limited to, weapons ma- Katrina.4 In fact, these instances have visual search and surveillance by military nipulation in high-stress environments, taken place in a variety of forms since personnel [did] not violate the Posse low-visibility and urban tactical opera- the late 1960s and early 1970s.5 Two Comitatus Act.”10 tions, counterterrorism operations, and thoughts come to mind. First, during all In times of great civil need the intelligence-gathering operations. Former these events that involved either military military’s logistical capabilities, not to Servicemembers have started their own cooperation or equipment, the Posse mention manpower and leadership sup- weapons training curricula or have been Comitatus Act must have been a topic port, are almost too invaluable for civilian hired by civilian weapons training acad- of conversation. If so, and after so many police not to utilize. This was the issue emies, such as those offered by Magpul instances, civilian police and DOD have particularly in the Katrina aftermath when Core, which offer courses that teach mili- supposedly found an acceptable balance “[many] police officers actually turned in tarily developed techniques.14 Some of between these civil events and military their badges so to speak and just walked these courses are offered both to law en- intervention. In contrast, however, this off of the job,” in which the “National forcement and current military members. article argues that the militarization of a Guard was the quickest response force Civilian police take this training back to civilian police force undermines the Posse that the government could provide to fill their agencies and then train each other Comitatus Act, and DOD’s equipment, that void.”11 Civilian police organizations, on the methods. training, and transitioning personnel have even those not in the midst of a disaster One not-so-recent change in police fueled this evolution for decades. relief effort, understand the expanded work involves the use of military-grade capabilities that the military provides weapons by police across the Nation. In The Posse Comitatus Act where civilian police in turn attempt to addition, police are also given ballistic and Police Militarization recreate these same aspects and features protection that is able to stop projectiles In general, the Posse Comitatus Act’s within themselves. This militarization fired from similar weapons in an effort intent is that the “military is currently could be what is causing reform activists to defend against violent criminals and prohibited by Federal statute from to speculate that we are “going too far.”12 provide the ability to fight back against participating in domestic law enforce- That implies that we are superseding the ever-evolving, capable criminals and ter- ment.”6 This act was established in original intent of the Posse Comitatus rorist threats. It is reasonable to want law 1878 and allowed lawmakers to sanc- Act by simply transitioning military styles, enforcement officers to have the most tion those who “willfully use members skills, technology, and tactics to civilian reliable and effective equipment, but are of the Army or Air Force to execute police officers. While we are not allowing we attempting to focus on officer surviv- the laws” of the United States.7 These the military to wear a badge, we are al- ability or are we trying to win in a combat instances do occur in modern times, lowing those with badges to don combat environment? Arguments can be made but parties disagree on how lawful their helmets—and the mentality that comes that both are occurring and are necessary. usage is versus their effectiveness toward with it. The procurement of such gear pressed the enforcement of the law. When a civilian police force wields the Barack Obama administration, both One specific example would be the military equipment, it requires train- in rhetoric and in executive action, to Washington, DC, Beltway sniper attacks, ing. This training includes a combat prohibit the sale of “military-style equip- which occurred from October 2 to 24, mindset—an ingredient that may be ment from the Federal government to in 2002. Two individuals systematically more powerful than any assault rifle. The civilian police.”15 But not all equipment committed 10 murders and 3 near-fatal change of character and personality that a procurements are being used to fight attacks in the National Capital Region via civilian police officer experiences through crime. Civilian police are also using mili- the use of a Bushmaster XM-15 rifle. The militarization may alter his or her percep- tary vehicles to aid in rescues and natural 3-week spur of attacks solicited heavy tion of what a public servant’s purpose disaster relief efforts, but opinions on national media coverage. This “led to the truly is. In this case, the civilian police are usefulness in the civilian police commu- enlistment of military aircraft and crews transforming into quasi–military police, nity differ.16 to search the Maryland and Virginia sub- and with that comes a unique area of self- With this equipment and training, urbs of Washington for the gunmen.”8 identity that drives that behavior. civilian police are continually developing
JFQ 85, 2nd Quarter 2017 Dowell 59 Security forces members from Oregon Air National Guard’s 142nd and 173rd fighter wings train together during door-to-door search at training village in Warrenton, Oregon, during exercise Cascadia Rising, June 10, 2016 (U.S. Air National Guard/John Hughel) specific teams more specialized than Some have suggested that the Central In the U.S. Armed Forces, the easily recognizable Special Weapons Intelligence Agency originally developed Servicemembers are taught to follow all and Tactics (SWAT) teams developed many of these practices for Agency oper- the orders of the officers appointed over in the late 1960s. A quick online search atives.17 These tactical training regimens them and the orders of the President of will find units that range from the U.S. involved techniques such as counter- the United States as long as they are legal, Border Patrol Tactical Unit, Federal surveillance, identifying dead drops, and moral, and ethical. This is a militaristic Bureau of Investigation’s National Joint eluding law enforcement. These tactics hierarchy of control and is enforced by Terrorism Task Force (NJTTF), U.S. have good intent behind them, but the the chain of command. This same chain Marshal’s Special Operations Group, fact that their roots come from “espio- is replicated in part in civilian police orga- U.S. Department of Energy’s Special nage” and “special operations” should nizations. For a police officer to advance Response Team, to the U.S. Park be a concern for the average citizen. in the hierarchy of the department, “the Police SWAT team, among numerous Moreover, civilian police attend train- policeman must exhibit behavior indica- other state and local tactical/assault ing with military members, sometimes tive of a ‘relatively unquestioning belief teams. Interestingly, the NJTTF has through formal joint training events in and acceptance of the organizational Active-duty military liaisons specifically or by chance encounters at a local gun system.’”18 The same could be said for provided by the U.S. Army Criminal range or civilian training academy, and the U.S. military. If Servicemembers do Investigation Command—a division of adapt the methodologies learned and not adapt to the doctrine and culture the U.S. Army Military Police Corps. bring them back to their home police of their unit, then they will likely not These teams are jointly using practices departments. These militaristic mindsets progress within the ranks. Many civil- learned by their parent agencies decades carry over when Servicemembers com- ian police are no different. This is what ago from their military mentors, if municate these same military principles two researchers call the “quasi-military they are not still learning them today. to civilian police officers. command model.”19 Civilian police
60 Features / Policing in America JFQ 85, 2nd Quarter 2017 departments that do indeed practice this take the time to get to know their “appearance” of militarized policing dis- leadership model demonstrate behavior patrol areas’ citizens better, talk to them mantles any trust a community may have that is naturally derived from the Armed about their daily lives, and take note of with its police force. Forces. This traditional practice in the urban issues that the city can solve, this military does produce an efficient style would result in the citizens of that area Possible Solutions of mission execution, and this command being more apt to report crimes and to Eliminating Posse Comitatus. model is effectively used with all other assist the officers in helping to reduce The Posse Comitatus Act has several aspects of the military’s operational and solve crimes. Police usually reduce good intentions, but in recent times the specialties. This may be giving civilian the amount of time in patrol vehicles act has been described as “archaic.”26 police officers, including some civilian and increase the use of bicycles or the Additionally, any military response today police who are also retired military, a false frequency of foot patrols. Some pro- is usually complicated and difficult to sense of militaristic purpose. This goes grams resulted in the resident citizens work through solely due to the act’s own deeper into the personal identity of the of the targeted areas feeling as though bureaucracy; thus a solution could quite individual civilian police officer, and how their police force was “more hospitable possibly be to eliminate it.27 This action he or she sees themselves working within than central police [traditional patrol would favor civilian police as it would the community. officers]” and thus the citizens’ levels widen the path the military is already This militarization of police depart- of contentment were increased.22 They on in assisting law enforcement. While ments may be having a negative effect on felt as though their rights had been pro- civilian police would still interact with police officers’ self-defined job descrip- tected, and they were more concerned civilians on a daily basis, the military tions as they “began to confuse the role of about fighting crimes by assisting law would theoretically still only ever need police officers with a [S]ervice orientation enforcement rather than shunning to be deployed in times such as crises of with that of military personnel engaged in police and fearing that their own rights either natural or manmade events, but a domestic war.”20 This may point toward were being sacrificed. could also be used more quickly in law the militarization of civilian police that, In contrast, there have been examples enforcement capacities when needed. The in turn, creates concern for opponents where community policing was the intent repeal of the act would likely necessitate of these changes. Despite the Posse but, based on witness accounts, appeared a lengthy congressional action to draft Comitatus Act, which protects us from to have a negative effect. In Richland and approve, but to maintain the current, the use of Active-duty Servicemembers County, South Carolina, between 2005 loose balance between militarization and against our citizens, we may have by- and 2007, the sheriff’s department at- civilian policing, a recommendation could passed this act all together simply by tempted to integrate community policing be to adopt a system more closely related recreating soldiers in the civilian sector of while still maintaining a standard of to that of France. law enforcement. While our civilian police militarized policing. Community Action On November 13, 2015, France forces are transforming to adapt to new Teams (CATs) were developed in order suffered the deadliest attacks on its soil threats, they are sacrificing significant per- to meet with citizens and community since World War II when 130 innocent spectives of Service orientations and the leaders in an effort to gain intelligence people were killed in Paris by Islamic community openness that goes with it. on illicit drug networks. However, after extremists. Given the complexity and le- meeting with community leaders and thality of the attacks, the French response How Communities citizens during the day, the people who began from a disadvantage. Numerous View This Change made up the CATs would coordinate issues already existed with French police Among U.S. citizens, 65 percent of and execute counterdrug operations in structure, such as a lack of history of Americans admit that “police officers the form of surveillance and raids during community policing and a tradition of have a very dangerous job” and, despite the night.23 This method of community highly centralized decisionmaking.28 conflicts between both sides of the policing, swiftly followed by militarized However, while their immediate response argument on how policing should counterdrug operations, unraveled the has been criticized for lacking sufficient be conducted, as many as 58 percent concept of community engagement, firepower and coordination, the results state that they themselves “show too and citizens began to lose trust in their were surprisingly successful as local civil- little respect for police officers these civilian police. Soon, CATs were avoided ian police effectively contained terrorists days.”21 Over the last 25 years, a altogether by citizens.24 Incidentally, the only minutes after their initial attacks.29 popular method called “community county sheriff at the time, Sheriff Leon France’s police structure is completely policing” has attempted to create a Lott, was an institutionalized and trained nationalized and is broken down into mutual support effect on the fear of Military Police officer with additional ties two police forces: the Police Nationale, crime, and thus on the overall welfare to the special operations forces commu- essentially representing the civilian po- and satisfaction of the citizens of a nity.25 Even without concrete statistics on lice, and the Gendarmerie Nationale, neighborhood. In general, community the effectiveness of Community Action essentially representing the military.30 policing has a basic idea: if the police Teams, it can be argued that even the When the attacks occurred, it was the
JFQ 85, 2nd Quarter 2017 Dowell 61 civilian police force that responded first, enforceable, and many military leaders agencies immediately after leaving the containing the terrorists across the city, and civilian police agencies would be hard military; however, this issue may be more namely at the Bataclan Concert Hall. pressed not to follow the law without appropriately addressed by a third course After the attacks, an aggressive search was legal consequences, as well as regular of action that DOD could implement initiated where “within 48 hours of the media coverage scrutinizing their deci- itself. attacks, 168 homes had been raided and sionmaking processes. DOD Oversight on Military 104 people had been placed under house Continuing with the Obama admin- Relations with Civilian Police. If arrest.”31 This was accomplished by both istration’s intent, prohibitions on military Americans trust their military, then per- the Police Nationale and Gendarmerie equipment procurement by civilian police haps our military can serve them directly Nationale—a logistical feat that could agencies would be maintained as well as by changing DOD’s relationship with not have been achieved without military elaborated on. This would require a com- civilian police themselves. Enforcing assistance. In this case, using the military prehensive review of what equipment has Posse Comitatus at the DOD level could as law enforcement swiftly aided in not already made its way into civilian markets, present the best of both worlds for both only ending the attacks but also bringing as well as what has been restricted but au- opponents of militarization and civilian to justice those who had escaped or aided thorized to sell only to law enforcement. police. the terrorists. However, any measures taken to cut Continuing with policies that prohibit In any case, a certain amount of trust the direct link between the military and equipment procurement, DOD would must be placed in the military that they civilian law enforcement would not stop not only adhere to the already published will not overstep their bounds. There the sale of military-style equipment from list set out by the White House but also will always be those who undoubtedly civilian companies that resource both the develop a required internal “trading conclude that we are allowing the Armed defense and law enforcement industries delay” for any other equipment sales Forces to gain too much freedom and separately.35 intended for combat—slightly similar that we should fear an eventual coup Besides equipment procurement, to trading delays as seen in the stock d’état. Ironically, this is exactly what hap- joint training between the military and market.36 But unlike stock market trading pened recently in Turkey. On July 15, civilian police would require closer delays, where the delay amounts to hours, 2016, a faction of the Turkish military scrutiny to ensure that military-specific the DOD trading delay would need to be opposed the president of Turkey, Recep tactics and techniques do not find their determined in years, or even decades, but Tayyip Erdogan, so strongly that it at- way into civilian police agencies without not so long that the sale would render tempted to topple the government and an approved need. Sadly, the control equipment obsolete by the time civilian impose martial law “in order to restore measure for such a restriction would police would require it. Hence, if DOD democracy.”32 Regarding the United generate a maelstrom of bureaucracy. sells combat equipment too soon, there States, there has never been an organized That supervisory oversight to ensure will be no difference between the military coup against our own government by the prohibitions are adhered to and training and police on American streets, and if military. A reminder: the Armed Forces regimens are screened for necessity in DOD sells combat equipment too late, swear oaths to defend the Constitution civilian law enforcement agencies would civilian police and similar commercial of the United States prior to swearing to add another time-sapping requirement industries will attempt to recreate their obey orders from anyone else. At home to DOD’s burden. Nonetheless, the own, potentially less-refined solutions. and abroad, the Armed Forces have time result would be intended to satisfy op- The solution of trading delays could and again proved to be most accountable ponents of militarization and, more allow DOD to influence, if not control, to the people they serve. Few countries importantly, eliminate future instances of this conundrum. in the world trust their militaries as much police misconduct that could be tied to Regarding training and mindsets, as America does theirs.33 In fact, the militarization. In any case, these changes joint training events could ultimately military is the most trusted institution in would likely take years to have any effect. be restricted to both disaster relief and American society today.34 This could not The military’s technologies and tactics counterterrorism operations. Disaster be in more contrast to much of the rest would need to evolve without substantial, relief is quite simple pertaining to lo- of world. routine interaction with civilian police, gistical, medical, search and recovery Maintaining Posse Comitatus. thus increasing the gap between the two support, and so on. Enforcing policies Maintaining the act would be more in entities. Expectedly, many within the against the transferring of counterterror- favor of advocates for social and police civilian police community would still ism operational knowledge, specifically reform. Ideally, no further drafting of embody the remnant mentalities gained knowledge involving combat techniques, the act would be required. While some in past joint training events or even those would require more scrutiny. While Members of Congress would undoubt- civilian police that recently served in the it would be easier to deny any and all edly lobby for continued leniency toward military. This points toward another issue combat-related techniques from being the act if new, stricter policies were of whether separated Servicemembers taught to civilian police, that course ever issued, the act would already be should be allowed to join civilian police of action unfortunately overlooks the
62 Features / Policing in America JFQ 85, 2nd Quarter 2017 Sailors and Federal law enforcement personnel conduct live-fire training during Navy Security Forces Training Course pilot program, training civilian and military police forces to work together, June 23, 2010, San Diego (U.S. Navy/AC Rainey) potential for DOD to improve civilian techniques to a higher security clearance the Defense Authorization Measures police survivability and service to their more strictly and lower those of less-than- of 2008 and 2009, coercing DOD to citizens if it were to impart at least de- lethal capability than it has in the past, enact a policy to prevent this.38 The escalation and less-than-lethal training to allowing civilian police to still benefit existing policy is applied to “very senior civilian police, which most civilian police from those techniques that are absolutely employees” of DOD concerning defense already receive. An example would be the “must share.”37 This again would con- contracting companies where they are U.S. Marine Corps Inter-Service Non- strain military personnel from imparting “subject to a two-year restriction” from Lethal Individual Weapons Instructor large amounts of knowledge to civilian being employed by those civilian contrac- Course, which for 2 weeks focuses on police, preventing further instances where tors.39 This policy has seen controversy the proper use and familiarization of police misconduct could occur due to and is alleged to have “done little to slow TASERs, batons, OC (pepper spray), militarization, especially when citizen en- the rush” of Servicemembers transition- ocular and acoustic hailing devices, and counters result in the use of lethal force. ing to civilian agencies involved with the verbal de-escalation techniques, among Finally, as retired Servicemembers defense industry.40 But the policy could other techniques. The course culminates leave the military, a control measure be more effective if first enforced by with an understanding by the police of- would need to be implemented to ensure DOD before the Servicemember sepa- ficer that the overarching theory behind that they do not accelerate the procure- rates from the Service and, subsequently, less-than-lethal capabilities is that, to ment of these techniques to civilian by the Department of Justice where waiv- avoid lethal situations, less-than-lethal police, essentially creating a loophole ers to that policy would be required by options should be used “early and often.” around both equipment and training the former Servicemember, and second if Accordingly, a more favorable action restriction policies. Congress has ad- the policy were implemented specifically for DOD would be to classify lethal dressed this type of loophole before in toward those in the military who wish to
JFQ 85, 2nd Quarter 2017 Dowell 63 Servicemembers, civilians, dependents, and retirees from Joint Base Charleston, South Carolina, and local community competed during Security Forces Shooting Competition, May 15, 2013, in honor of National Police Week (U.S. Air Force/Dennis Sloan) pursue civilian policing positions where a Yet while police continue to serve vast amount of influence it will continue 2-year restriction also applies. This could and protect, there are those who are to have on civilian police—and that it mitigate that rush and allow a period of turning policing into something it was will have a response when this question reflection for those Servicemembers post- not meant to be. DOD has invented is posed. JFQ retirement before joining the ranks of devastatingly effective means of elimi- civilian law enforcement. nating its enemies, but there must be a moral question of whether we should Notes As recent as 2016, a criminal justice allow civilian police to use those same 1 survey was taken where 54 percent of methods on U.S. citizens. Even in Emily Ekins, Policing in America: Under- standing Public Attitudes Toward the Police. Re- Americans stated that “police using ancient Rome, the natural progression sults from a National Survey (Washington, DC: military weapons and armored vehicles of policing evolved from simple fire Cato Institute, December 7, 2016), 50–51. is ‘going too far,’ while 46 percent brigades meant to remedy the spread 2 Richard R. Johnson, Dispelling the Myths [stated] these tools are ‘necessary for of a fire outbreak to an eventual strictly Surrounding Police Use of Lethal Force (Raleigh, 41 NC: Dolan Consulting Group, July 2016). law enforcement purposes.’” This military force that was not the intent of 3 42 The Daily Show with Trevor Noah, Comedy trend toward militarization cannot be its originator, Emperor Augustus. And Central, July 7, 2016. Specific excerpts from ignored; however, this could be the much like in ancient Rome, this change Noah were that “America has a problem within natural progression of any law enforce- in policing in the United States is some- its police force,” “and although it is a problem ment entity throughout a civilization’s thing that DOD can and should assist that disproportionately affects black people, it’s lifetime. To combat new weapons and in for the better while there is still time, not just a black problem. This is an American problem,” and that “with police shootings, it new threats and deter enemies of the and while it still has overwhelming favor shouldn’t have to work that way.” peace, police will need improved forms with the American people. Choosing to 4 The California Army National Guard was of deterrence and apprehension. Thus, maintain or eliminate Posse Comitatus activated on April 29, 1992, to assist civilian with ever-looming threats around the will be a question to be answered in the police with conducting law enforcement includ- world, the last thing we want to do is future. We should hope, though, that ing conducting patrols within the city. 5 Radley Balko, “The Militarization of lessen the abilities and effectiveness of DOD understands and accepts the role America’s Police Forces,” Cato’s Letter 11, no. uniformed civilian police officers. it has played in police development, the
64 Features / Policing in America JFQ 85, 2nd Quarter 2017 4 (Fall 2013), 1–5. “Leader Behavior in a Police Command Bu- available at
JFQ 85, 2nd Quarter 2017 Dowell 65