WASHINGTON — Here’s how you convince a legislature full of law-and-order Republicans to back efforts to rein in militarized police tactics:
Take a law passed by the Democratic legislature of Maryland, get the local chapter of the ACLU (and a group of libertarians) to rework it slightly, put it on the floor, watch it pass basically unanimously.
That was the unlikely recipe used — successfully — by activists in Utah.
And after the startling images of police deployments in Ferguson, Missouri, the same group of Utah activists is pretty confident it’ll be able to achieve even greater success in the next legislative session. This time, the activists are setting out to make Utah one of the first states to voluntarily limit the way its local police forces can accept and use surplus military equipment distributed by the Department of Defense.
“It’s definitely another catalytic event,” said Connor Boyack, president of Libertas, the libertarian group that lead the effort with the Utah ACLU. “Some lawmakers who have been shocked at the images coming out of Ferguson … [and] have expressed skepticism that those scenes could ever be on the streets of Utah are nevertheless interested in looking at this because of the images coming out of Ferguson.”
“It just feels very timely for us,” agreed Marina Lowe, legislative and policy counsel for the ACLU in Utah. “Having a real national incident helped make this very real for everyone.”
With the U.S. Congress set to return to Capitol Hill for its first legislative work days since Ferguson, activists in Washington are scrambling to push some kind of police demilitarization legislation through Congress before lawmakers scatter again for the final 2014 campaign push.
The White House, currently in the beginning stages of an executive branch review of programs that send military equipment to local police forces, isn’t ready to sign on to any of the legislative solutions.
“The review has to be conducted first to determine if the program needs adjusting. It’s way too early to talk about changing legislation when we don’t know what the findings will tell us,” a White House official involved with the review said Friday. “It could be the case that the program needs no adjustments or needs adjustments that do not require a change in legislation.”
There is also the reality that any bipartisan action on any topic in Washington right now faces a deeply divided Congress and rapidly-approaching election. Mainstream Republicans have been more cautious about changes to the criminal justice system than Democrats have, and even with momentum building among the conservative activist wing of the party, convincing the Republican House to take on police tactics seems like a tall order.
But Utah shows bipartisan demilitarization bills are possible, even in an environment where law-and-order Republicans have a lot of control, as is the case in Washington.
In January 2012, a SWAT raid on the home of low-level marijuana suspect went terribly wrong, leaving one officer dead and several others wounded. The suspect was an Army vet with no criminal record — he who claimed the police did not announced themselves and he shot at them believing them to be burglars. He hanged himself in jail after he lost a legal challenge to the warrant that authorized the raid. The case quickly became a poster child for the police demilitarization movement, and led to soul-searching among Utahans about the tactics and equipment used by their police.
Activists sprang into action, Boyack said, grabbing a copy of an existing law passed in the blue state of Maryland that requires police to keep and provide data about how and when SWAT teams are used. Data on military-like policy activity is notoriously hard to gather; there’s no central repository for it and police are generally not thrilled about giving up details of controversial SWAT activities. The ACLU has called on the Obama administration to create national data collection requirements for local police who use surplus Department of Defense equipment.
The activists also proposed legislation that made it harder for police to use SWAT teams to serve warrants without crossing high evidence standards. That puts a tighter civilian oversight on police tactics similar to options proposed on the national level by activists.
In Utah, police opposed the bills. Boyack said he reached out to the ACLU to help craft a legislative strategy that could overcome the police lobby and the natural tendency of many politicians to steer clear of laws not seen as “tough on crime.” The goal was to take politics out of the equation entirely.
“Early on, we reached out to ACLU to bring them on as sort of a coalition,” Boyack said. “They readily agreed with the ideas we were working on, to show the legislators that this was a transpartisan issue or nonpartisan issue.”
Lowe said the partnership was an easy, if unlikely, one.
“We don’t agree on a lot of issues,” she said. “But we found when it comes to the Fourth Amendment we tend to get along.”
Lawmakers were initially skeptical, he said, but the unified front and arguments that new transparency stemming from the data collection requirements and the regulations on warrants protect both citizens and police helped both bills sail through the legislature.
After the 2012 SWAT incident, “even the tough-on-crime types recognized that was a heavy-handed response to such a low-level crime,” Boyack said.
After Ferguson, Utah members of the left-right coalition that has been driving criminal justice policy change in recent years think they can tackle the surplus equipment program at the state level. Talks are in their early stages, but Boyack said future legislative proposals could make impose restrictions on Utah cops trying to get their hands on military tech and require stringent reporting after that tech is used.
Could the Utah model work in Washington? Ferguson has put a lot of momentum behind the libertarian wing of the GOP’s take on police militarization in Washington. Bills have been filed focusing on militarization of local cops as well as federal regulatory agencies. The Senate will hold hearings soon on the use of military equipment by police. As in Utah, the ACLU and the prominent libertarian activists in Washington are in general agreement about what needs to be done.
But Boyack is not bullish on Washington and its large caucus of law-and-order Republicans.
“My opinion is that there’s too much inertia at the federal level,” he said. “The proper way to get reform done is at the state level.”