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Crisis, Policing And Militarism After Boston: Why We Need To Establish Fire Lines

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(This is part four in a series of posts on the Boston Marathon bombings, the government response, and Boston unique historical perspective on militarism and civil liberties. You can read the introduction here, part two here, part three here, and part four here.)

By April 19th, about 9,000 cops, SWAT teams and National Guardsmen had descended on Boston to find the remaining suspect in the marathon bombing. In the Watertown neighborhood, they went door to door, in some cases forcing innocent people out of their homes at gunpoint. In at least one instance documented in a photo posted online, they pointed their guns at someone for merely looking out of a window while standing in his own home. And all of this was an effort to find Dhokar Tsarnaev, a single 19-year-old man who was unarmed when he was finally apprehended.

Tsarnaev wasn't found during one of those door-to-door searches, or even during the "stay-in" order. Rather, he was found after the order was lifted and after a homeowner noticed something suspicious in his own yard and called the police to investigate. For all the extraordinary measures taken in Boston that week, the crisis was resolved after a fairly ordinary series of events.

There isn't much of the Second Amendment left in Massachusetts, and the actions of local, state and federal authorities almost certainly violated the spirit and sentiment of the Third. In entering homes without permission, they essentially suspended the Fourth. But they did find their man. And he was arrested without any further loss of life. Bostonians cheered police after the arrest, and the city still overwhelmingly supports the police response. One poll showed 86 percent of the city in support of how police handled the incident, and journalist Garrett Quinn recently reported that he couldn't find a single person in the city who believed the police overreacted.

But of course there are some rights that can't be voted away. If tomorrow 86 percent of Boston voted to permanently suspend the Fourth Amendment for the other 14 percent of the city's residents, few serious people would argue that those poll results are an argument for doing so. (The hypothetical isn't all that farfetched. A number of polls over the years have shown that the much of the Bill of Rights would lose if put to a popular vote.)

Police actions like those in Boston also tend to have a self-reinforcing effect on public opinion. A heavy police presence to many implies a serious threat, whether or not such a threat actually exists. That tends to sow fear, which in turn makes the public grateful for the police presence. None of which speaks to the legitimacy of the police action itself. That Tsarnaev was arrested in Boston with no further loss of life is certainly a mark in favor of the police and public officials. But it says little about the legitimacy of the police actions leading up to his arrest. It tells us only that the local, state and federal governments used enough force to apprehend him. It doesn't speak to whether they used too much.

This debate matters because, as the historian Robert Higgs has fastidiously documented over the years, in times of crisis the government tends to cite the urgency of the situation and the need to preserve public safety to justify the suspension and erosion of civil liberties, the ever-increasing use of more and more force, and the need to shield itself from transparency and accountability. The problem is that when the crisis is over, things rarely go back to the way they were before it began. If we don't ask questions, demand accountability and require public officials to explain their actions, this "ratchet effect" will continue to expand the scope and reach of the use of force, with an ever-increasing suppression of civil liberties.

There's also a strong argument to be made that if the aim of the Tsarnaev brothers was to propagate terror, shutting down the city of Boston and subjecting portions of the city to what was effectively martial law played right into their hands. At the very least, it showed a potential future terrorist that with a few pressure cookers and some gunpowder, he can shut down an entire city and inflict an aggregate loss of of hundreds of millions of dollars.

As others have pointed out, numerous western cities have dealt with situations in recent history that were similar to those in Boston without shutting down the city or bringing in small armies to patrol the streets. The Washington, D.C. area continued to function for weeks during the Beltway sniper attacks in 2002. London continued to operate after the 2005 subway attacks. Dozens of cities have waited out suspected serial killers. Atlanta didn't go into lockdown after the 1996 Olympic Park bombing. San Diego didn't overreact after a series of pipe bombs went off in a federal courthouse in 2008. In fact, The Atlantic reports that Boston represents the largest lockdown of an urban area in America since the 1965 Watts riots in Los Angeles.

The Watts riots also provide a good example of how an extraordinary crisis can inspire an extraordinary government reaction that eventually becomes routine. The LAPD official in charge of the city's response to the riots was a young inspector named Daryl Gates. The experience so rattled him that he came up with an idea of assembling an elite, paramilitary police team for the sole purpose of reacting to and putting down such uprising. The concept behind Gates' "SWAT team" was that the best way to defuse a riot, active shooter or other violent incident was to deploy precise, specialized and overwhelming force.

In fact, the first nationally-televised SWAT raid -- on the Symbionese Liberation Army holdout in 1973 -- bore quite a bit of resemblance to the situation last month in Boston. The SLA was a domestic terror group. They had already shot up a sporting goods store, robbed a few banks, killed a high school principal and had plans for more shootings, bombings and general mayhem. They were also on the run in Los Angeles. But it wasn't until the FBI and LAPD could pinpoint the SLA members in a single home that police then evacuated the block, set up a perimeter and eventually deployed the SWAT team.

But that raid also popularized the SWAT team. The idea quickly proliferated, and by the end of the 1970s, nearly every city in the country had at least one. But by the mid-1980s, these teams were used much more frequently. Driven by political rhetoric that described the threat posed by illicit drugs as everything from a plague to a threat to national security, the violent tactics once reserved for hostage-takers and domestic terrorists were being used to break into the homes of suspected drug offenders. Today, SWAT teams are deployed 100-150 times per day in America, and the overwhelming majority of those raids are to serve search warrants on people suspected of consensual drug crimes. (They're also used to raid poker games and medical marijuana dispensaries, as well as for regulatory inspections.)

Imagine you're a public official reacting to what happened in Boston. The marathon bombing has been all over the news. The city is terrified. Everyone is watching. At one time, waiting until you could isolate your suspect to a single house, or even a few blocks, before sending in a paramilitary police team was seen as an appropriate way to handle this sort of situation -- a way of using enough force to confront the threat while doing the minimum amount of damage to civil liberties. But that sort of force is now used routinely and against people who commit unspectacular, not-at-all unusual crimes. It may be effective. It may be proven. But it's a now-unspectacular response to an unquestionably spectacular event, and thus risks appearing inadequate. For a politician, there's no worse popular perception of a crisis-performance than one that is seen as inadequate. Sending nine thousand law enforcement officers and National Guardsmen in pursuit of a single suspect -- no would would dare call that inadequate.

But for the sake of argument, let's assume that there was nothing untoward, unconstitutional or heavy-handed about the police response in Boston, or in Watertown specifically. Perhaps this was an exceptional event, one worthy of one of the largest police responses in American history. If that is indeed the case, we need to establish some fire lines, or else risk allowing the exceptional to become routine. If Boston is going to become a precedent, it needs to be a precedent for future Bostons and only for future Bostons, so we aren't locking down entire towns or cities every time a high school kid uses a glass jar and some Draino to blow up a few mailboxes. (For an example of how the "shut it down" reaction is catching on, see New York City this week, where city officials shut down the subway for an hour to catch a man suspected of stealing necklaces.)

So what exactly made Boston different from the D.C. sniper attacks or the bombing in Olympic Park? It wasn't the body count. It wasn't that the suspects were especially well-armed. They appear to have had one gun between them and made bombs from supplies that can all be obtained legally. It doesn't appear that they were any more vicious, indiscriminate or bloodthirsty than prior fugitive bombers or mass shooters. (Which isn't to say they weren't all of those things -- only that there's little evidence they were worse than killers other cities have dealt with differently.)

Were the heavy-handed door-to-door searches and lockdown in Watertown justified by the belief that Tsarnaev was holed up in that particular neighborhood? Are we okay with the tactics because they were geographically limited and only lasted for about a day? What if Tsanaev hadn't been found for another week? How large a section of a city are we comfortable locking down in such a manner, and for how long a period of time?

It seems that the primary reason for the heavy-handed response was heightened fear and outrage, much of which was driven by the high-profile nature of the attacks. We're of course more likely than ever to be carrying portable cameras and video recorders on our cell phones, but the bombing was staged at a time when bystanders were particularly likely to have those cameras running -- as friends and relatives were crossing the finishing line of the country's most prestigious marathon. That means the entire country saw photos of the bombs going off seconds after their detonation. Within minutes we had video. Within hours we saw images of limbless bodies, blood-soaked sidewalks and heroic cops, firemen and bystanders. We were angry and heart-broken, and I'd imagine for those living in Boston, wary and fearful of what could be coming next.

If the lockdown and police presence was a reaction to the high-profile nature of the attacks and nationwide revulsion, it means the police response was the product of fear -- fear from the attacks and fear of the unknown. We can then draw two conclusions here. First, it means the police response was not the result of a careful evaluation of the threat, balanced with a healthy respect for civil liberties. Second, it's now a road map for would-be terrorists: If you want to instill the maximum amount of fear and terror, if you want to attack the heart of what makes a free society free, stage your attacks on high-profile events and at a time and place when people are most likely to be filming one another.

The common response to critics of the response in Boston is that it's all hindsight -- Monday morning quarterbacking that fails to take into consideration the difficult position police and public officials faced in the hours and days after the bombing. On the first point they're right -- of course it's hindsight. That's really the only way we can evaluate any response to an event like this one.

There are a couple ways to address the second point. First, if a law enforcement officer or public official egregiously violated someone's civil rights, they should be held accountable. The volatile circumstances at the time can perhaps, in some cases, be an ameliorating factor, but it can't be an excuse for recklessness or extreme negligence. Because, again, if it's allowed as an excuse, we risk it becoming a precedent. It's unfathomable, for example, that there has been no real discipline for the police officers in Los Angeles who shot up a newspaper delivery truck -- and the two women inside -- because they mistook it for the truck alleged cop-killer Christopher Dorner was reported to have been driving.

The volatility and danger of a fugitive on the loose doesn't excuse spraying bullets at a truck occupied by two innocent women (and, apparently, at the houses, trees and neighborhood around them). In Boston, Dhokar Tsarnaev was initially reported to have fired at police officers from inside the boat where he had taken refuge. That brought a barrage of gunfire from police in response. But we now know that Tsarnaev was unarmed. You needn't have any sympathy for Tsarnaev to be concerned and to want answers for why the police mistakenly opened fire an unarmed man. What if it hadn't been Tsarnaev?

But it's also worth noting that a more general critique of the police and political reaction to Boston isn't necessarily a condemnation of the people in charge, even if we conclude that they made some mistakes. The public officials in Boston were operating under unimaginably stressful conditions. To revisit those decisions after the fact isn't a judgment on any particular official's character, it's an attempt to learn from the experience. We could, for example, determine that the "stay-in" order was an overreaction to be avoided in the future while still understanding the thinking behind the decision to issue it.

But that those decisions made in Boston were made under duress is precisely why we need to revisit them. To say the decisions made in Boston should be off-limits for criticism because of the urgency and fear of the moment is to let urgency and fear drive our reaction to these events -- and therefore drive our policy going forward. If Boston should be a precedent, it should be a narrowly-defined precedent that addresses what made Boston an exceptional situation. But it seems probable that not every decision made that awful week in April was the correct one -- that from the executive level down to the cops going door to door, at least a few decisions made by some people amount to an excessive or unnecessary use of force. It's important that those decisions be identified, too, so that cops and political leaders in the future have better guidelines as to what is and isn't appropriate.

When terrorists attack free societies in an effort to destroy them, the very freedom and openness those societies afford -- and that the terrorists are trying to destroy -- can often be an ally in their efforts. That's certainly what happened here. This was a soft target. It's of course important that we apprehend and punish such people. But in our efforts to prevent them from destroying our freedom and openness, we need to be just as vigilant in making sure we aren't doing their work for them.

Radley Balko is author of the forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Departments.

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Filed by Radley Balko