They Can Do That?! 10 Outrageous Tactics Cops Get Away With
Talk to someone who has never dealt with the cops about police behaving badly, and he or she will inevitably say, “But they can't do that! Can they?” The question of what the cops can or can't do is natural enough for someone who never deals with cops, especially if their inexperience is due to class and/or race privilege. But a public defender would describe that question as naïve. In short, the cops can do almost anything they want, and often the most maddening tactics are actually completely legal.
There are many reasons for this, but three historical developments stand out: the war on drugs provided the template for social control based on race; 9/11 gave federal and local officials the opportunity to ensnare Muslims (and activists) in the ever-increasing surveillance and incarceration state; and a lack of concern from the public at large means these tactics can be applied, often controversy-free, to anyone who resists them.
What follows are 10 of the innumerable tactics the police can use against a population often incapable of constraining their behavior.
1. Infiltration, informants and monitoring. The NYPD's Demographics Unit has engaged in a massive surveillance program directed at Muslims throughout the entire Northeast region, ignoring any jurisdictional limitations and acting as a secret police and intelligence gathering agency – a regional FBI of sorts. The AP's award-winning reports on the Demographics Unit helped bring some information about the program to light, including the revelation that its efforts have resulted in exactly zero terrorism leads.
Although a lawsuit from 1971, the Handschu case, "resulted in federal guidelines that prohibit the NYPD from collecting information about political speech unless it is related to potential terrorism,” legal experts worry that privacy rights have been so diminished that Muslims who are spied on may not be able to seek recourse. The AP quoted Donna Lieberman in November 2011, who said, "It's really not clear that people can do anything if they've been subjected to unlawful surveillance anymore."
Muslims are not the only group that has been targeted. The AP reported that the NYPD has also infiltrated liberal groups and protest organizers. Other cases of entrapment of activists, such as the NATO 5 and the Cleveland 5, are also troubling.
2. Warrantless home surveillance. Just in case you still think there must be some limit on how the authorities can surveil you, there's this -- a federal agency, not the police, but the larger point stands. The Ninth Circuit Court of Appeals recently ruled that it is legal for a law enforcement agent to enter your house and videotape you without your consent. The case, United States v. Wahchumwah, revolved around a U.S. Fish and Wildlife undercover agent who recorded Wahchumwah without a warrant. The Ninth Circuit found the search to be “voluntary,” which led the EFF to write on its Web site: "The sad truth is that as technology continues to advance, surveillance becomes 'voluntary' only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive.”
The Ninth Circuit isn't the only one who thinks warrantless video surveillance is perfectly OK.
“CNET has learned that U.S. District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission -- and without a warrant -- to install multiple 'covert digital surveillance cameras' in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown.”
During the Bush years, Congress had to grant retroactive immunity to giant telecoms that engaged in warrantless wiretapping. It seems, the judicial branch wants to save Congress the trouble.
3. Preemptive visits and harassment. One of the favorite tactics of police departments is targeting activists a day before a large event. We saw this on May Day in New York City, as cops descended on several activists' apartments before the day of action, and in Chicago before the massive No NATO protests. The Cleveland 5 were also arrested before May Day, and back in 2008 the RNC8 were also preemptively arrested.
4. Creating call logs from stolen phones.If you lose your phone in NYC and report it to the police, they'll help you find it. So far, so good. Where the agreement turns pear-shaped, however, is what they do with your call logs. The NYPD subpoenas your call log from the day it was stolen onward, under the logic that the records could help find your phone.
But -- and here's the kicker -- they get info for the calls you made on the day it was swiped, and possibly even info from your new cell phone if you keep your number. The information is added to a database called the Enterprise Case Management System, and the numbers are hyperlinked for cross-referencing. The call logs, all obtained without a court order and often without the victim's permission or knowledge, could “conceivably be used for any investigative purpose,” according to the New York Times.
5. Consent searches. Sometimes a cop gives you a command, but phrases it as a question, like, “Would you open your bag so I can look inside?” If you're anything like the vast majority of people in the United States, you have no idea that you're under no lawful obligation to answer in the affirmative. You can, legally speaking, ask if you are being detained, and if the answer is no, you are free to walk away. Or at the very least, not open your bag.
Cops are aware that they can intimidate someone they decide to search, and once they obtain “consent” – e.g. “Yes, man with a gun who is towering over me, you can look in my bag” – any evidence of criminality they find can be used in court. This method of searching people was developed, like several other tactics on this list, during the early 1980s when the Reagan administration ramped up the so-called war on drugs.
Many critics argue that the very idea of a “consensual” interaction between police and the public is impossible, if the police initiate contact. As Justin Peterswrites, “[Police] know the average person doesn’t feel they’re in a position to decline a conversation with a cop.” A common tactic is for officers to say they'll let someone off with a warning, then proceed to ask a bunch of questions, even though the person is technically free to go.
6. Stop and frisk. You've probably heard about stop and frisk by now, but for years this odious tactic – and close cousin to consent searches – went woefully underreported in establishment media. The NYCLU released staggering statistics for the year 2011 detailing the massive size of the program in New York City. One particularly memorable figure was that the NYPD stopped more young men of color than there are men of color in NYC. (More information at stopmassincarceration.org.)
7. Pretext stops (Operation Pipeline). The Supreme Court has repeatedly ruled that cops are free to use minor traffic violations as a pretext to pull over people they suspect of committing drug crimes. Once pulled over, the police obtain “consent” – “Would you get out of the car and empty your pockets?” – and can go on fishing expeditions.
In the Supreme Court's ruling in Ohio v. Robinette, “The Court made clear to all lower courts that, from now on, the Fourth Amendment should place no meaningful constraints on the police in the War on Drugs,” writes Michelle Alexander in The New Jim Crow. The Court determined that cops don't have to tell motorists they're free to leave before getting “permission” to search their car.
In the mid-1980s, the DEA rolled out Operation Pipeline, a federal program that trained city cops in the shady art of leveraging pretext stops into consent searches. The discretionary nature of many of these searches resulted in massive amounts of racial profiling, so much so that some officials say “the reason racial profiling is a national problem is that it was initiated, and in many ways encouraged, by the federal government's war on drugs.”
8. Police dogs. Don't consent to cops searching your bag? If you're in a car or an airport, police can bring in the dogs to smell your stuff, and if the dog responds, they have probable cause to search you without your consent. “The Supreme Court has ruled that walking a drug-sniffing dog around someone's vehicle (or someone's luggage) does not constitute a 'search,' and therefore does not trigger Fourth Amendment scrutiny,” Michelle Alexander writes.
But if a dog barks or sits, shouldn't we be comfortable with that triggering probable cause? Radley Balko has reported on the phenomenon of drug dogs giving false positives after reading cues from their handlers:
The problem isn't that the dogs aren't capable of picking up the scent; it's that dogs have been bred to please and interact with humans. A dog can easily be manipulated to alert whenever needed. But even with conscientious cops, a dog without the proper training may pick up on its handler's body language and alert whenever it detects its handler is suspicious.
This is called the “Clever Hans effect,” named after the horse who could do arithmetic by tapping his hoof. In reality, the horse could recognize the shift in his owner's body language when he had arrived at the right number.
9. Surveillance drones. The drones are coming, and the few illusions of privacy we cling to will soon disappear. The domestic market for drones in the next decade is estimated in the billions, and police departments are chomping at the bit to implement this new technology. Drones already patrol the US-Mexico border, and cities such as Seattle are moving toward using surveillance drones. In August, a North Dakota court ruled that the first-ever drone-assisted arrest was perfectly legal.
In our ever more authoritarian society, expect politicians and the lobbyists who fund their campaigns to justify increased incursions into privacy in the name of security. The short-term incentives to value privacy have been all but forgotten, as “if you're not doing anything wrong you've got nothing to fear” has gone from self-evidently absurd cliché to national motto.
10. Enlist the private sector. The comedian Chris Laker says of privatization: “You can't privatize everything. Learned that from RoboCop.” But it seems police departments haven't learned that lesson. In Arizona, police enlisted the help of the Corrections Corporation of America, a private, for-profit prison corporation, in a drug sweep of a public school. PRWatch reports:
"To invite for-profit prison guards to conduct law enforcement actions in a high school is perhaps the most direct expression of the 'schools-to-prison pipeline' I've ever seen," said Caroline Isaacs, program director of the Tucson office of the American Friends Service Committee (AFSC), a Quaker social justice organization that advocates for criminal justice reform.
The privatization of nearly all aspects of public life, from education to law enforcement, is a trend we should all find disturbing, not least of all when a company that profits from locking humans in cages is directly involved in the arrest process.
The larger point here is obvious. In the last decade, the Bill of Rights has been shredded at the federal level and the local level. There are few constraints on police, FBI, NSA, and private intelligence companies when it comes to surveillance of the public. That many of these programs and tactics are discretionary exacerbates and magnifies conscious and subconscious racist and classist attitudes among those who carry them out.
Editor's note: a formatting error which has since been corrected erased a block quote from the text of this article, leading to inadvertently incorrect attribution of a quote.