The Genesis of Increasing Incidents of Police Brutality: The War on Drugs

What is the cause of the spiraling increase in police assaults on people whom they should help to protect — not brutalize or kill? In just the month of March, 2015, American police killed 111 people — more people than the police in the United Kingdom have killed since the year 1900.[1] This article will present the view that the war on drugs has created the new Jim Crow, filling our prisons with black citizens[2]; and the view that the federal government, aided by the United States Supreme Court, has transformed the police of this nation into a military force, financed and trained to use excessive force against anyone suspected of using drugs. Abusive conduct by police has spread like a plague since initiation of the War on Drugs, resulting in an “us versus them” police culture in which certain citizen groups and communities are targeted as the enemy. These groups have developed a justifiable distrust and total lack of respect for what they have come to see as authoritarian tormentors.

The suspected users of drugs, real or imagined, are too often innocent victims of law enforcement personnel who violate the constitutional rights of suspects, without fear of reprisal or punishment.[3] The United States Supreme Court has essentially created a “drug exception” to the Bill of Rights by eviscerating Fourth Amendment protections against unreasonable searches and seizures by the police where narcotics are involved. In short, the Supreme Court has seized every opportunity to facilitate the drug war, and “has made the roundup of millions of Americans for nonviolent drug offenses relatively easy.”[4]

And who are the Americans’ being rounded up and how are they being treated? Since 1982, the war on drugs has become a more generalized war against citizens who are poor, black or brown. As a result, these citizens are too often the innocent victims of unrestrained police brutality.

This article will also provide the resources and information that TLC trial lawyers may find useful in more fully exploring and discovering the client’s story, the motivations underlying police misconduct, and the political process and policies that form the foundation for the use of excessive force. In short, the story that jurors should hear in order to motivate them to render a verdict that they believe will help to protect them and their community from police discrimination and brutality.

So, how did the war on drugs spawn the increase in the use of excessive force and police brutality that exists today? How did the war on drugs result in a well-financed, militarized, police state consisting of law enforcement officers trained to make war on a civilian population primarily consisting of black and brown citizens? How did law enforcement training help create a police mentality that supports the use of excessive force? To help answer these questions, we must start with the advent of the war on drugs and the escalating events that followed.

President Reagan’s War on Drugs

The events giving rise to President Reagan’s official announcement in October, 1982, of his administration’s War on Drugs is best summarized with supporting authoritative sources by Michelle Alexander. In his campaign for the presidency, Reagan’s major themes were crime and welfare, accompanied by vehement promises to be tougher on crime and on those he described as “welfare queens.” Once he was elected, the Justice Department immediately announced its intention to cut in half the number of specialists assigned to prosecute white-collar criminals and to shift its attention to street crime, especially drug enforcement. This in turn was followed by now-President Reagan’s official announcement in October 1982 of his administration’s War on Drugs.[5]

However, Reagan’s promise made during his election campaign to enhance the federal government’s role in fighting crime, created significant problems for his administration. The sale and use of drugs involved street crimes that had traditionally been the responsibility of state and local law enforcement, not the FBI, and Reagan had no control over local law enforcement. Nor did local law enforcement have the manpower or resources to engage in a widespread war on the use of drugs. In addition, the media and the public did not consider the use of drugs to be a major law enforcement problem. In fact, less than 2 percent of the American public considered drugs as the most important issue facing the nation.[6]

So, facing these hurdles, what did Reagan do to implement his declared war? As a start, he pushed to increase FBI’s antidrug funding between 1980 and 1984 from $8 million to $95 million. [7] He successfully increased Department of Defense antidrug spending from $33 million in 1981 to $1,042 million in 1991, and during that same period he approved increasing the Drug Enforcement Administration (DEA)’s antidrug spending from $86 million to $181 million.[8]

That did not solve the problems that Reagan faced in creating a national war on drugs at the state and local level. So the Reagan administration launched a media offensive to justify a nationwide War on Drugs. The media campaign focused on sensationalizing the emergence of crack cocaine in inner-city neighborhoods which had been devastated by deindustrialization and skyrocketing unemployment.[9]

Cash and Military Equipment as a Bribe

Even the media blitz was not sufficient to persuade state and local law enforcement officials that drug enforcement should now be a top priority. Most communities still did not regard drug use as a pressing concern. So, to make Reagan’s drug war a top priority at the state and local level, huge cash grants were offered to any law enforcement agencies that were willing to make drug-law enforcement a top priority.[10] Those not willing would not receive federal aid, so most state and local law enforcement agencies welcomed this additional funding conditioned on joining the war on drugs. Ninety percent of this funding was then used to organize and train specialized narcotic task forces nationwide.[11] It was this training (by the DEA) and the competition for continued federal funding that led to a culture of violating constitutional rights and the use of excessive force.

In addition to providing local law enforcement with huge cash grants as a bribe to join the war on drugs, in 1997 the Pentagon provided more than 1.2 million pieces of military equipment to local police departments.[12] Between January 1997 and October 1999, 3.4 million orders of Pentagon military equipment were placed by over 11,000 domestic police agencies in all 50 states. This included “253 aircraft (including six- and seven-passenger airplanes, UH-60 Blackhawk and UH-1 Huey helicopters), 7,856 M-16 rifles, 181 grenade launchers, 8,132 bulletproof helmets, and 1.161 pairs of night-vision goggles.”[13] Providing military equipment transformed state and local law enforcement from “community policing” to “military policing.” The paramilitary units that were then formed could more easily frighten and intimidate the citizens who became casualties and victims of the War On Drugs.

Training to Violate Constitutional Rights

Not only did state and local law enforcement agencies have the cash and military equipment to join the war on drugs, but it was apparent that police would now have to be trained to round up and arrest drug offenders. So, in 1994 DEA launched Operation Pipeline to train state and local law enforcement officers how to use minor traffic stops as a pretext to search vehicles for drugs, and how to obtain consent to a search from a reluctant motorist. [14] By 2000, DEA had trained more than 25,000 officers in 48 states in Pipeline tactics and in a profile that was developed that would allow each officer to use his or her limited experience and biases to detect suspicious behavior. The profile was so expansive “that it potentially justifies stopping anybody and everybody.” [15]

The United States Supreme Court then empowered the police making these traffic stops to stop, interrogate, and search anyone, without reason to believe criminal activity is involved. The only contingency the Supreme Court required was that police must obtain “consent,” though the Court invited law enforcement to imply consent from the circumstances.[16] The Supreme Court essentially created an exception for the War on Drugs to the search and seizure protections of the Fourth Amendment.

Police departments and officers quickly learned that they could “legally” violate the constitutional rights of Americans, and were encouraged to do so in the popular war on drugs. With police departments suddenly flush with cash and military equipment earmarked for the drug war, paramilitary units (called Special Weapons and Tactics, or SWAT teams) were quickly formed in virtually every major city to fight the drug war. [17] SWAT teams were used to serve narcotic warrants with forced, unannounced entry into homes. These are generally unnecessary violent encounters to arrest someone or conduct a search in the middle of the night, throwing flash grenades, shouting, and pointing guns at anyone inside, including children and grandchildren. Many innocent people have been killed in botched raids.[18] Innocent victims have been severely traumatized.

In the early 1980s, there were 3000 annual SWAT deployments. By 1996 there were 30,000; and by 2001 SWAT teams had been deployed 40,000 times.[19] At least 780 cases of flawed SWAT raids reached the appellate level between 1989 and 2001. By way of comparison, in the 1980s such cases were rare; before the 1980s, they were non-existent.[20]

This massive change from “community policing” to “military policing” began in 1981 when President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the military to give local, state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction. This was followed by Reagan’s National Security Decision Directive, which declared drugs a threat to U.S. national security, and provided for even more cooperation between local, state, and federal law enforcement. In the years that followed, Presidents Bush and Clinton enthusiastically embraced the drug war and increased the transfer of military equipment contingent on local agencies prioritizing drug-law enforcement and concentrating on arrests for illegal drugs.[21]

President Clinton Jumps on the Bandwagon

The drug war was further accelerated when, in 1992, presidential candidate Bill Clinton vowed that he would never allow a Republican to be perceived as tougher on crime than he. To demonstrate this, just weeks before the New Hampshire primary, he flew to Arkansas to observe the execution of Ricky Ray Rector, a mentally impaired black man. After the execution, Clinton said, “I can be nicked a lot, but no one can say I’m soft on crime.”[22]

Once elected, Clinton endorsed a federal “three strikes and you’re out” law in 1994, and approved the $30 billion crime bill that year.[23]The bill created dozens of new federal capital crimes, mandated life sentences for some three-time offenders, and authorized more than $16 billion for state prison grants and expansion of state and local police forces. Michelle Alexander states that, “Clinton escalated the drug war beyond what conservatives had imagined possible a decade earlier.”[24] As the Justice Policy Institute observed, “the Clinton Administration’s ‘tough on crime’ policies resulted in the largest increases in federal and state prison inmates of any president in American history.”[25]

Excessive Police Force Becomes the Norm

The combination of huge cash grants and military weapons to law enforcement agencies with those agencies’ willingness to make drug-law enforcement a top priority succeeded beyond all expectations. Drug arrests skyrocketed as highway patrol units organized drug profile interdiction on the highways, SWAT teams swept through housing projects. Stop-and-frisk programs were initiated on the streets.

There were profits to be made by state and local police agencies that were permitted, and encouraged to keep for their own use, the vast majority of cash and assets that they seize when waging the war on drugs. Allowing state and local agencies to keep up to 80% of all proceeds from asset seizures, authorized by Congress in 1984, provided further incentive to blink at constitutional rights violations. As stated by Michelle Alexander, “Property or cash could be seized based on mere suspicion of illegal drug activity, and seizure could occur without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property had somehow been ‘involved’ in a crime.”[26]

Archetypical examples of how cash grants and military weapons in combination with cash seizures has resulted in police corruption and violence toward innocent citizens is found in United States v. Reese,[27] The 9th Circuit court describes the outrageous and criminal conduct of SWAT teams who were under tremendous pressure from commanders to increase their drug related arrest records in order to continue to receive federal grants. Team members were told that it would be OK for officers to keep some of the drug money for their personal use. A task force would be sent out on a shift with comments by the commander like, “Let’s go out and kick ass,” and “Everybody goes to jail tonight for everything, right?”[28] The Court then describes the several incidents of brutality inflicted on innocent victims by members of the task force who were on a rampage to find drugs and satisfy their commanders.[29]

Journalists and investigators have documented other evidence of the widespread corruption and use of excessive force. Reporters in Florida reviewed nearly 1000 videotapes of highway traffic stops and discovered that police were using alleged traffic violations as a pretext to confiscate “tens of thousands of dollars from motorists, against whom there was no evidence of wrongdoing, frequently taking the money without filing any criminal charge.”[30] In similar fashion, Louisiana journalists reported that police were engaged in massive pretextual stops of motorists in an effort to seize cash, with the money diverted to police department ski trips and other unauthorized uses.[31] In yet another example, an employee in the Los Angeles Sheriff’s office reported that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures. [32]

The Drug War Becomes a Racial War

There is overwhelming evidence that black and brown citizens have been targeted in the drug war. Studies have shown that far more white citizens use and sell drugs than do black and brown citizens[33]; yet 80 to 90 percent of all drug offenders sent to prison in seven states are black. In at least 15 states, African-Americans are sent to prison on drug charges at a rate of 20 to 57 times greater than white people.[34] So, no wonder that of the 2.3 million people now incarcerated in our prisons and jails, 50% are black and 16% brown.[35]

Of the increase in our prison/jail populations from 300,000 in 1980 to the present 2.3 million, drug offenses alone account for 2/3rds of the federal inmate population and more than ½ of the states’ population.[36] Drug arrests have tripled since 1980 resulting in 31 million people being arrested for drug offenses since the war began.[37] Eighty percent of the arrests in the 1990s were for marijuana possession, and not dangerous drugs.[38]

Statistics, studies, and all reliable available information show that black citizens have been the most targeted group of American citizens in the war on drugs – a war that has degenerated into a racial war with accelerating violence and brutality directed primarily toward black citizens. As stated by Michelle Alexander in her well documented book,[39] “In every state across our nation, African Americans — particularly in the poorest neighborhoods — are subjected to tactics and practices that would result in public outrage and scandal if committed in middle-class white neighborhoods. In the drug war, the enemy is racially defined.”[40]

Excessive Police Force is Now Common-Place and Engrained in the Police Culture

Excessive force, if not outright brutality, has become the norm in enforcing the war on drugs. Once that culture developed in specially trained groups of law enforcement personnel, it spread like a plague through law enforcement generally. So now we see videotapes of excessive force being used almost weekly on the internet, and the media is full of stories of deaths resulting from police shooting unarmed men and boys, mostly black.

The war on drugs became an excuse to wage war on African-Americans. So the Justice Department investigation results of the police department in Ferguson, Missouri, should have come as no surprise. The Justice Department report found a pattern or practice of the Ferguson police using “unreasonable force” against its citizens, with 88% of the unreasonable force incidents involving African-Americans.[41] Further, the Justice Department concluded that 85% of all people stopped by Ferguson police officers were black, and that African-Americans received 90% of all citations issued. Black citizens were also targeted for petty offenses and from 2011 to 2013 they accounted for 95% of all “manner of walking in roadway charges”, 94% of all “failure to comply” charges, and 92 % of all “peace disturbance” charges.[42]

Some might argue that Ferguson, Missouri is the exception and is not emblematic of a national problem that has infested law enforcement. But the media in nearly every state have reported multiple incidents of abusive law enforcement tactics and the use of excessive force, often resulting in death. A recent example is the expose of the Oxnard, California police department by Daily Kos staff writer, Shaun King, who describes the March 2015 death of “a 26-year old African-American mother of three, shot and killed by an Oxnard police officer after he arrived at her home to check out a reported domestic dispute.” This death, reports Shaun King, must “be viewed in context of the sordid history of” this police department.[43] The history includes the shooting of an innocent man, Alfonso Limon, who was shot 16 to 21 times when walking home from a high school gym. The police said he was mistakenly thought to be a suspect in another crime. The City paid $6.7 million for the “mistake” less than a year ago.[44] In 2001, the Los Angeles Times detailed how police in Oxnard, a city of just 170,000 people, had killed more citizens that year than cities 22 times its size, including the depressed son of a mother who thought her son might harm himself and called the police. The son was found cowering in a closet when the police shot and killed him. The city later paid the family $1.5 million for the “mistake.”[45]

But perhaps the most shocking Oxnard police revelation comes from a former Oxnard police officer who recently revealed the sick practice of officers who proudly display tattoos that are “earned” every time they shoot someone while on duty. The tattoo is a gun and if smoke is added to the tattoo coming out of the barrel, the shooting was fatal. The former Oxnard officer who recently left the department names seven Oxnard officers and two retired officers who had the tattoos. King states that “the nine names also included two officers who are currently commanders at the department”, and “one is a watch commander.”[46]

Numerous studies demonstrate that excessive force has become engrained in the police culture.[47] Once engrained it became acceptable to “sometimes use more force than permitted by the laws that govern” police conduct, and the “Code of Silence” prevents fellow-officers from reporting police brutality or testifying against a fellow officer.[48] In a nationwide survey of police officers by the Justice Department, 25% of responding officers stated that “whistleblowing on a fellow officer is not worth it, two-thirds reporting that police officers who report misconduct are likely to receive a ‘cold shoulder’ from fellow officers, and more than one-half reporting that it is not unusual to turn a ‘blind eye’ to improper conduct by other officers.”[49]

So why do so many law enforcement officers now use excessive force, seemingly without fear of being caught or punished? Perhaps because they have historically seldom been caught or punished as the use of excessive force became accepted within the law enforcement community. Time after time, the public has been informed that an officer “acted in self-defense”, or in “fear for his life”, or the citizen was “resisting arrest”, or similar excuses placing blame on the citizen.

A recent classic example is the white North Charleston, South Carolina police officer who, on April 4, 2015, pulled over a 50 year old black man, Walter Scott, because of a broken taillight. When Scott, who was unarmed, began to run away, he was shot in the back eight times as he ran. The officer claimed that Scott grabbed his stun gun and he shot Scott in self defense. However, a witness videotaped the entire incident which demonstrated the officer running up to the dying man and dropping his stun gun next to him to support his false claim of self defense. The officer was charged with murder on April 7 because the video tape conclusively established that Scott was, in fact, murdered.[50]

The widespread availability and use of cell-phone cameras has captured literally hundreds of incidents of excessive police force or abuse in recent years, and exposed the false claims of arresting officers. Another recent example occurred when white Minneapolis police stopped a vehicle with three black teenagers who had left a food market and made a U-turn in a church parking lot. With drawn guns the police ordered the youngsters out of the car and while placing them in handcuffs one officer was caught on tape stating that “I’m gonna break your leg before you get a chance to run”. The police then spent 45 minutes searching the car and doing background checks, before releasing the youngsters with no charges brought. The “officers said they were suspected of grand auto theft.”[51] Were the police simply adhering to the Operation Pipeline training on how to use minor traffic stops as a pretense to search for drugs, in combination with profiling blacks?

Discovering The Story of an Excessive Force Case

Knowing the background and history of the war on drugs, and how that relates to the arrests of 31 million people since 1980, accompanied by increasing incidents of law enforcement’s violence toward American citizens, can be helpful to the trial lawyer who represents one of those citizens — whether in a civil rights law suit for damages, or in defending a brutalized client against false criminal charges. How is it helpful? As we know, it is critically important to discover the “story of the case”, whether civil or criminal. Discovering what the client personally experienced is only a piece of the client’s whole story. A client doesn’t know what training an arresting officer(s) received in the use of force, or the officer’s subjective motives for using excessive force. He/she doesn’t know whether the department or agency is under pressure to increase the monthly arrest record in order to continue to receive federal funds or munitions. A black citizen doesn’t know if the department has developed a profile that emphasizes the search and arrests of black citizens, or if there is a history within the department of profiling young black men for arrest.

So, discovering the “entire” story of the case through depositions, documents, reenactments with role reversals, surplus reality and the use of doubling and other TLC techniques, becomes critically important. For example:

• It has become common practice for the police to justify the shooting of an unarmed person by explaining that he was just reacting in self defense to a justified fear that the person might be armed, or might attack him, and the officer will often be protected by the testimony of fellow officers adhering to the “code of silence.”
• An officer using excessive force might do so just to impress the other officers who respond or are on “the team”, or to frighten and intimidate bystanders, or to simply punish an arrestee for “talking back”.
• Such force might be used because of racial prejudice.
• An officer might be psychotic, intoxicated, or otherwise mentally impaired.
• An officer might have serious personal problems and is just “acting out.”
• An officer might have a history of using excessive force t