Since his swearing in, President Donald Trump has issued a flurry of controversial Executive Orders. One frequently overlooked yet dramatically important issue that has yet to be addressed by Trump concerns the militarization of the police and the fate of Obama’s Executive Order No. 13688.
In response to the deployment of militarized police forces in Ferguson, Mo., and elsewhere, Obama’s order restricted the federal government’s provision of military equipment to U.S. police departments and established oversight mechanisms for its use. Yet, following the shootings in San Bernardino in 2015 and in Dallas in 2016, Republicans in the House of Representatives and some police sheriffs criticized the mandate, claiming it was detrimental to the security of law enforcement. On the campaign trail, Trump pledged to remove the barriers to police procurement of military equipment. Unsurprisingly, the National Fraternal Order of the Police –the largest police union in the US – expects him to deliver: They listed rescinding the order as the first “potential action” during Trump’s first 100 days in office.
Police militarization began in the US in the 1960s, with the establishment of the first SWAT unit in Los Angeles, and has increased exponentially in the decades since, from the “War on Drugs” to the “War on Terror.” It reflects a global trend — part and parcel of the general erosion of boundaries – between war and peace, the external and the internal, and armed conflict and law enforcement. Equipment and police units, which were originally intended to cope with exceptional situations, are nowadays deployed for any number of reasons, from serving warrants to maintaining public order. Paramilitary police units have mushroomed in cities and towns, large and small. Police are “acquiring” (free of charge from the U.S. Defense Department) armored personnel carriers, assault rifles, and armored vehicles, among a wide array of military equipment. Not surprisingly, the deployment of militarized police is more frequent in minority communities, who encounter militarized police on a regular basis.
Historically, the development of police in the United Kingdom and the US was accompanied by the constant fear that they would resemble the military. Thus, for example, early British protesters against the establishment of police resisted what they believed would be standing armies in their streets and neighborhoods. And indeed, in the United Kingdom, the reluctance to equip police officers with weapons has persisted to this very day. In America, police officers in New York City, for instance, initially refused to wear uniforms, arguing that only soldiers (and servants) wear them. Over time, however, these fears declined, perhaps because the line dividing police and the military was distinct and kept relatively stable. Yet in recent decades, police militarization has been normalized through the use of the “war” metaphor in different contexts.
When problems such as crime, drugs and isolated terrorist attacks are referred to as “war,” we should not be surprised that police militarization follows. Thus, in the United States, militarized policing proceeded uninterrupted starting in the 1960s, with the help of an elaborate federal bureaucracy. While policing in the United States is mostly a local affair, the federal government funnels billions of dollars to cater to state and local police units who want to militarize. Indeed, the federal government incentivizes militarized police, for example, by encouraging the hiring of military veterans, and by giving away surplus military equipment, through a federal program known as Program 1033. The police only have to transport and maintain the equipment, also made possible with the help of grants from the Department of Homeland Security. Such equipment transfers have become even more available now that US troop deployments to Iraq and Afghanistan have wound down.
But, in 2014 police militarization was brought to the forefront as the American public became increasingly aware of what had been happening to local law enforcement. The deployment of militarized police in Ferguson, essentially converting the small town into what might have appeared to be a war zone – with camouflaged police training sniper rifles on protesters – raised concerns from both the right and the left that militarization had gone too far. A backlash against militarization followed, gaining some support from the Obama administration, which sought to curtail the transfer of military equipment to the police. With the election of Trump, however, the United States is set to reverse course yet again, reverting to its pro-militarization stance.
But what is wrong with police militarization? In a new draft article, we try to provide a principled answer to this question, which goes beyond the usual consequentialist arguments (for instance, the claim that militarized police leads to excessive force). If the problem with militarization were only that, then presumably it could be easily resolved by training and discipline. However, even in such a (hypothetical) case, militarization would still be problematic, as we would still be met by police that look like soldiers when walking down the street. There is something, then, that outcomes-based arguments do not capture.
Instead, we argue that the core problem with police militarization is that it establishes a presumption of threat, meaning it normalizes the presumption that those being policed are threatening to an extent which justifies the deployment of combat-ready forces. Crucially, however, a liberal order must assume the exact opposite: Citizens cannot be presumed to be a threat, neither to one another nor to the state, if the state is to be any different from the nasty and brutish reality of the Hobbesian state of nature. The threat/non-threat dialectic is, to us, a key difference between liberal democracies and totalitarian states.
In our view, police militarization implies a presumption of threat because it exhibits two salient characteristics. First, it is primarily preventive rather than strictly reactive. The deployment of militarized police reflects the anticipation of extreme violence, of the type that could require a forcible response. Second, it is collective. Since it is not (always) aimed at specific individuals, it tends to rely on collective assumptions about violent potential. When militarization becomes normalized, the presumption of threat becomes normalized as well. And when it is the police that becomes militarized, normalization of the presumption of threat is enhanced, precisely because the police – contra the military – are elements of the normal, rather than exceptional, legal order.
The double nature of police militarization as preventive and collective closely resembles the presumption of threat found in the basis of the law of armed conflict. The enemy is presumed threatening and thus targetable. Furthermore, status-based targeting is based on collective, rather than an individual threat. These presumptions are channeled to the policed community through the perceptible symbolism of militarization: uniforms, weapons, and vehicles. This results in the distinction of the policed community as the enemy, which amounts, as Carl Schmitt famously argued, to de facto exclusion from the body politic. To be sure, it is not necessary for militarized forces to actually fight the civilian population, like militaries fight. Rather, the essential effect of the presumption of threat – manifested in militarization – is symbolic or expressive. Actual combat is not needed: The mere deployment of militarized police carries the symbolic power to exclude the policed community from the political collective.
Of course, proponents of militarization would respond with a set of instrumental objections, which would supposedly eclipse our principled stance. Namely, they would argue, militarization protects police officers. However, it is fair to ask whether this is indeed so, or rather, militarized police only creates militarized criminals. Furthermore, a valid question concerns the limits of legitimate police risk aversion. We seem to expect police to take personal risks to protect the values we believe in. Indeed, democracy, and due process cannot exist with zero risk to police. The reason police can use deadly force only as a last resort acknowledges that police work involves risk-taking.
Proponents might argue further that militarization deters criminals. Even if this were true (which we doubt), a major question concerns the type of deterrence invoked here. We should ask those who invoke deterrence, what is the “or what?” that underlies deterrence through militarization? In the context of war, it is clear that the “or what” is death and destruction. However, in the context of law enforcement, the stick of deterrence must be understood as consisting of justice through due process. Deterrence by militarized police conflates law enforcement deterrence with war deterrence, and as such is illegitimate in a liberal democracy.
As we come to grips with the Trump administration and the global trend that it reflects, we need to discuss the limits of state power on a principled level – precisely since it seems that those principles might be giving way to “alternative facts” and an “anything goes” form of instrumentalism. This is true in general, and much more so in the context of the limits on policing, as the ultimate instrument of state coercion. Law and order should not be conflated with a presumption of threat and the construction of policed communities as domestic enemies.