Draw pistol, aim at foot.

I grew up in a police-friendly household. My father was a lawyer, an assistant attorney general, and then a judge. He was the only judge in the area who would sign search warrants after hours, so we would have state and local cops in our house in the middle of the night. My dad knew them all. Cops were just part of the landscape. I write this to give you perspective on where my attitude towards law enforcement started out. 

I’ve been watching the police my entire life. I have experienced a slow evolution from support to suspicion. Over the past couple of decades I have come to the conclusion that they aren’t paying attention to their own best interests. 

It’s counterintuitive. They seem like the most self-interested profession in the country. They have powerful unions and the blue wall of silence. They pressure politicians for more funding and less oversight. It’s gotten to the point where they can outright murder people on camera and walk away free. 

Lately it has gotten bolder, if that’s possible. People of color, religious minorities, and LGBT folks have always known that they are vulnerable, but police are taking it to the privileged. Recently a riot cop in LA, knowing he was on camera, casually shot an Australian journalist in the back with a non-lethal round as she was speaking to the camera. ICE agents, without provocation, manhandled and handcuffed a New York City mayoral candidate, again, on camera. Members of Congress aren’t safe from pointless arrest. 

The problem for police concerns their sources of power. They have one tiny power and one giant power. Their tiny power is on their belt. The gun, the nightstick, the taser, the pepper spray, may seem like their big power  because their effect is immediate and dramatic. Likewise their power of arrest and legal monopoly on violence. Not so. 

Their giant power is the idea in the minds of the people that they are a source of justice and safety. That they are the good guys. That they are definitely a better option than their absence. With that power they walk among people who support them, who will obey their orders without reluctance, and who will warn them of danger and assist them. Also a population that will pay their salaries and maintain their numbers. Without that power they are just another bunch of guys with guns. In America that doesn’t make them special. 

The police have been hacking away at the base of that giant power forever, but lately with more fervor. According to a 2024 Gallup poll, confidence in the police is around 51%. It hasn’t gone over 64% in the past 30 years. Broken down by demographics, the police are only above 50% with people over 55, white adults, and Republicans. Even Republicans only go as high as 62% approval. That’s a miserable rating for an institution that is supposedly the instrument of the law and order that Republicans tout. My guess is that even conservatives don’t really trust the police as a force of justice. They just believe that the police are brutal and lawless towards the types of people they fear and hate. 

In this disapproving environment it makes no sense in terms of self interest for ICE agents to show up everywhere in face masks with their badges covered. Wearing street clothes and driving unmarked vans, for that matter. It broadcasts a message of “We are doing something illegal and shameful.” Which, or course, they are. They are openly violating federal immigration laws and the Constitution every day. There is some evidence that ICE is hiring professional bounty hunters at $1,000 per arrest and deputizing unemployed prison guards. It’s red meat for a racist voting base, but not for the majority of Americans. 

That’s bad enough, but videos are now surfacing of random groups of white men in eBay tactical gear impersonating ICE and harassing Hispanic people. Every self-interested law enforcement officer in the U.S. should be alarmed and outraged by this. It’s a direct threat to their safety. In mid-June a man dressed as a police officer murdered a Democratic Minnesota lawmaker and her husband and shot another lawmaker and his wife, critically injuring them. This was a political assassination and an act of terrorism. It was also a blow to the legitimacy of law enforcement. The Minnesota police had to tell people that they would be searching for the suspect in pairs, and not to open their doors to a single police officer. 

There is rising resistance to the unidentified gangs snatching people, ICE or not. Unarmed groups of people are facing down the masked pseudo-cops. There is an ongoing resistance to police brutality and overreach. Every week there is another video online of some out of control cop either shooting, beating, intimidating, or humiliating somebody. For every cop that does this there are ten cops knowing that it happened and at best doing nothing, at worst obstructing justice. If police keep acting like criminals and can’t be visually distinguished from criminals, then what? 

At some point a sufficient mass of people will decide to act. The question is what form that action will take. With luck this will be a reform movement. ICE will be disbanded. After all, we made it from 1776 to 2003 without it, and it has become completely lawless. Police departments will get citizen oversight with real teeth. Qualified immunity will be weakened. Federal, state, and local  law enforcement will raise recruitment standards and improve training. And so on. Police will hate this and fight it. They will cling to their obvious, yet feeble version of power. 

Without luck, well, I don’t want to think about what will happen without luck. 

Law enforcement officers of every kind need to stop and think about their relationship with the people they supposedly serve. All of the people; not just the wealthy and the white and the likeminded. It’s on them to change that relationship from adversarial to cooperative. They need to think about their tiny power and their giant power. It’s not just the moral thing to do, it’s the self-interested thing to do.

Rule of Law

A couple of legal issues are on my mind right now, one at the law enforcement level, and one at the legislative level.

I have been seeing a series of photos and videos from around the country of unprovoked assaults by police against unarmed and entirely peaceful demonstrators. An 84 year old woman got maced out in Oakland and students at U.C. Davis, seated and passive, were maced in a calculating, unhurried manner by a campus police officer. Unresisting protesters have been beaten with clubs and teargassed. An officer in Oakland fired a tear gas canister into the head of a man at point blank range, fracturing his skull. When other people clustered around the fallen man to administer first aid, an officer tossed a tear gas grenade into the center of the group, scattering them.

This bothers me, of course, because of the unnecessary violence and sheer sadism of it. It also bothers me because of the damage it does to the idea of rule of law.

We should expect laws to be enforced fairly, evenly, and with techniques proportional to the seriousness of the crime. We should expect law enforcement personnel to do their jobs with the minimum force required for their own safety and the safety of those around them. But we can’t. It seems that peaceably assembling in order to petition the government for redress of grievances, while admittedly becoming a public nuisance, is grounds for violent assault.

What the police themselves fail to realize is the two types of power they wield, and the relationship between the two. Their most obvious type of power is that of the gun, the mace, and the club. This is their small power. With all that weaponry and armor, an individual police officer is no more powerful than any other person so armed and armored. A police officer’s great power is the power of respect, both for the rule of law and for the officer as a just enforcer of that law. When the general populace has that respect for law enforcement, a single officer can walk safely among a thousand people. The people will assist that officer, obey all reasonable commands, warn of danger, and offer useful information. When the police arbitrarily use violence, they lose that respect. Without that respect, the officer is merely the member of a uniformed gang.

As a positive example, consider the Vermont State Police. They are one of the best trained and most thoroughly professional police forces in the country. They patrol the highways and back roads of Vermont alone. They rely on respect. They have a solid reputation. In my few interactions with them they have been uniformly polite, helpful, and professional, even when my personal appearance was not such as inspires the affection of a police officer. They are not perfect as individuals or professionals, but I can easily see 98% of Vermonters on their side. Can the police officers of New York City or Oakland expect the same from their citizens?

The police forces that are using violence against peaceful protesters are weakening themselves. And yet, this is a common theme in history. As a government loses legitimacy in the minds of its people it resorts to force, which hastens the decline. The relative immunity of millionaire bankers to arrest and prosecution is an aggravating factor. Apparently trespassing on Wall Street is a more pressing concern to the authorities than defrauding investors of billions of dollars on Wall Street.

As if the militarization of the police wasn’t bad enough, now Congress is turning the military into the police, prosecutor, judge, jury, and jail. The Senate just passed the National Defense Authorization Act, S.1867. Stuck in there is a nightmare provision, Subtitle D – Detainee Matters. It authorizes the U.S. military to detain any terrorism suspect indefinitely, without trial. That includes U.S. citizens detained on U.S. soil, as in you, on your street. A false accusation or a case of mistaken identity is as good as a life sentence. There is a feeble and vague insertion about not affecting existing law or authorities. That means that after the military whisks you away into secret indefinite detention you can hope that the courts work it out before something even more unpleasant happens to you.

Specifically (as highlighted below):

Under Section 1031 c (1), you can be detained until the end of the “War on Terror,” whenever that might be.

Under Section 1031 c (2), you can be tried in a military tribunal, lacking basic rights or rules of evidence, and including the use of confessions obtained under torture.

Under Section 1031 c (4), you can be shipped off to a foreign country of the government’s choice.

Well, there go all the good parts of the Constitution.

President Obama says he wants to veto it, albeit for all the wrong reasons. The House of Representatives still has to work it over. Apparently even the top military brass and the various branches of the intelligence services don’t want it to pass. It’s time to write the White House and your members of Congress. And call them. And raise hell in general.

Subtitle D—Detainee Matters

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED

FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

 (a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military

Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition

under the law of war.

 (b) COVERED PERSONS.—A covered person under this section is any person as follows:

 (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

 (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly

supported such hostilities in aid of such enemy forces.

 (c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

 (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

 (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–25 84)).

 (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

 (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

 (d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

 (e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

 (f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—

The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).