Rise of the Warrior Cop (9 page)

Patton and MacArthur rose through the ranks during the first Red Scare of 1919 to 1921, when the entire country crouched in a panicked fear of radicalism. This was the era of Woodrow Wilson’s Sedition Act, the 1919 anarchist bombings, and the responding raids, arrests, and deportations of thousands by Attorney General A. Mitchell Palmer. Every violent labor clash heightened fears that America was on the brink of Bolshevism. Like a number of US political
and civic leaders, many military leaders had soured on the notion of affording civil liberties to groups they believed were determined to overthrow the government. At a news conference after the Bonus March fiasco, for example, MacArthur showed no regret. He called the protesters a “mob” that was “animated by the essence of revolution.” He said their aim was to take over the government and that “a reign of terror was being started” that, without military intervention, would have caused “insurgency and insurrection.”
¹³

It was not an uncommon sentiment in the military at the time. When the US Army made its
Basic Field Manual
available to the public for the first time in 1935, it included a section on strategies for handling domestic disturbances.
¹⁴
The recommendations were unsettling. The guide suggested firing
into
crowds instead of firing warning shots over their heads, and it included instructions on the use of chemical warfare, artillery, machine guns, mortars, grenades, tanks, and planes against American citizens.
¹⁵
Another military manual defined
democracy
as “a government of the masses. . . . Results in mobocracy . . . demagogism, license, agitation, discontent, anarchy.” Newspaper editorials and political advocacy groups lashed out, arguing that the US Army had essentially published a how-to guide for waging war on its own people. The military responded, with some justification, that the manuals made no mention of when or under what circumstances these tactics—which were tactics of last resort—should be used in domestic disturbances.
¹⁶

The backlash showed that there was still an ample reserve of public support for the broader principles behind the Third Amendment. The outrage grew loud enough that in early 1936, Army chief of staff general Malin Craig retracted the manual and ordered it removed from circulation. By 1941 much of the offending language had been either removed or replaced with instructions emphasizing the use of nonlethal force.
¹⁷
The military had overstepped, and when it was held to account, it retreated: the instructions were revised to strike a more appropriate tone, one more in line with its proper relationship with the American citizenry.

World War II put an end to concerns about Communists and anarchists. Protests died down, and with them the need to send troops to dispel those that got out of hand. But the period wasn’t entirely calm. Racial tension mounted in some cities as black servicemen returned from the war to the same segregation, poverty, and limited opportunity they had experienced before they left. In Los Angeles, clashes between stationed Navy and Marine servicemen and the city’s Latinos boiled over into the Zoot Suit Riots of 1943. Riots also broke out in Detroit, Chicago, and Harlem, but only the Detroit riots required federal intervention.

The first decade after the war was even quieter, as the economy boomed and veterans settled down with good jobs to start families. But things were about to change. Civil rights victories would inspire revolt in the South, and the counterculture and antiwar protesters were coming.

T
HE NEW ERA BEGAN IN
L
ITTLE
R
OCK IN
1957. T
HE
S
UPREME
Court’s 1954 decision in
Brown v. Board of Education
animated civil rights groups and angered segregationists. When nine black students attempted to attend classes at Central High School on September 4, Gov. Orval Faubus sent Arkansas National Guard troops to prevent them from entering the building.

There had been a number of incidents leading up to Little Rock in which efforts to integrate public facilities had also been met with violence. Until Little Rock, President Dwight Eisenhower had opposed sending federal troops to force integration, and he initially resisted sending soldiers to Arkansas as well.
¹⁸
Instead, he first held a face-to-face meeting with Faubus, thinking he could convince the governor to stand down. Faubus responded by pulling the tr

oops entirely, allowing an angry mob to force the black students to withdraw from class on September 23.
¹⁹
Two days later, Eisenhower ordered troops from the 101st Airborne Division to escort the students to school. The soldiers were soon replaced by troops from the
Arkansas National Guard, which Eisenhower had federalized. Those units stayed until the end of the school year. Beginning the following year, federal courts supervised the Little Rock school system’s compliance with
Brown v. Board of Education
until 2007.
²⁰

Eisenhower’s initial reluctance to send troops to Little Rock is often seen as a stain on his record, perhaps justifiably so. But Eisenhower had ridden alongside MacArthur at the Bonus March. In fact, he had advised MacArthur that there was something unseemly about the military’s highest-ranking officer leading a charge against a citizen protest. It’s possible that Eisenhower was reluctant to send troops south in 1957 because of what he saw in 1932 and the resulting public backlash. Eisenhower eventually did send troops into Little Rock because, he said, federal law was being “flouted with impunity” and he feared that the South could slip into anarchy if something wasn’t done. He waited until he felt that sending in troops was his only option. Though an argument could be made that he waited too long, his actions also kept with the protections built into the Insurrection Act.
²¹

By the 1960s, the civil rights, counterculture, and antiwar movements would be in full swing, leading the government to call repeatedly on the National Guard and occasionally on US troops to keep order in urban areas. Still, the principle of keeping the US military out of law enforcement remained largely intact. Despite the best efforts of too many politicians, the public still tended to recoil at the idea of putting soldiers on city streets, even for a brief time, much less for day-to-day law enforcement.

That’s the good news. The bad news fills most of the rest of this book. While as a nation we have mostly done a good job of keeping the military out of law enforcement, we’ve done a poor job, to borrow a bit of martial rhetoric, of guarding our flanks. The biggest threat to the Symbolic Third Amendment today comes from indirect militarization. Instead of allowing our soldiers to serve as cops, we’re turning our cops into soldiers. It’s a threat that the Founders didn’t anticipate, that nearly all politicians support,
and that much of the public either seems to support or just hasn’t given much attention.

No one made a decision to militarize the police in America. The change has come slowly, the result of a generation of politicians and public officials fanning and exploiting public fears by declaring war on abstractions like crime, drug use, and terrorism. The resulting policies have made those war metaphors increasingly real.

CHAPTER 4

THE 1960S—FROM ROOT CAUSES TO BRUTE FORCE

Democracy means that if the doorbell rings in the early hours, it is likely to be the milkman.

—ATTRIBUTED TO WINSTON CHURCHILL

E
arly in the morning of March 25, 1955, narcotics agents in Washington, DC, arrested Clifford Reed on suspicion of distributing narcotics. Reed told a federal agent that he had purchased one hundred capsules of heroin from Arthur Shepherd, who was working for a drug dealer named William Miller. The agents recognized that they might be able to parlay a low-level arrest into a much larger bust.

Reed agreed to cooperate in a controlled drug buy, and at around 3:00 AM he and a federal agent posing as a buyer gave Shepherd $100 in marked bills to buy another one hundred heroin capsules. Shepherd then took a cab to the home of Miller, with the agents following. But the agent tracking Shepherd lost him when he exited the cab and entered Miller’s building. Afterward, DC city police stopped the cab that Shepherd was in and found the heroin
he had just purchased—but the federal agents had failed to observe the actual drug buy.

In an attempt to salvage the bust, the federal agents returned to Miller’s apartment and knocked on the door.

Miller said, “Who’s there?”

The agents responded, “Police.”

Miller opened the door and asked what the police wanted. But before they answered, he shut the door in front of them. The police then ripped the chain off the door and entered the apartment. They found the $100 in marked bills, along with around one thousand heroin capsules. Miller and Bessie Byrd, who lived with him, were arrested and convicted on narcotics charges.

The police had never obtained a search warrant. Miller appealed his conviction, arguing that the entry into his home was illegal.
¹
In 1958 the US Supreme Court agreed with him.

Justice William Brennan’s opinion in
Miller v. California
was a spirited defense of the Castle Doctrine. “The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage,” Brennan wrote. “[It] should not be given grudging application.”
²

Regrettably
Miller
was effectively the last stand in defense of the home as a place of sanctuary. In the coming years, the Court would uphold searches far more egregiously violative than the search performed on Miller’s apartment.

The first blow came five years later, in
Ker v. California
. A sergeant with the Los Angeles County Sheriff’s Department had purchased a pound of marijuana from a man named Terrhagen in the parking lot of a bowling alley. Terrhagen told the sergeant that his “connection” was Roland Murphy, who at that time was out of prison on bail pending charges for distributing marijuana. The police put Murphy under surveillance. The next day, in the parking lot of the same bowling alley, they saw Murphy park behind a new car with a single occupant. From one thousand feet away, at night, they saw Murphy get out of his car and converse with the driver of the new car. The officers couldn’t see if anything exchanged hands between
the two men. The police tried to follow the new car, but lost it when the driver made a U-turn. They checked the license plate with the state Department of Motor Vehicles and found that it belonged to George Douglas Ker. The police claimed that informants had told them in the past that Ker was known to sell marijuana.

The police then went to Ker’s address and found the car in the parking lot of an apartment building. They secured a passkey from the building manager and, without a warrant, simply walked into Ker’s apartment with no knock or announcement. Inside, they found a little over two pounds of marijuana. Ker and his wife were arrested.

The
Ker v. California
decision was complex. By an 8–1 vote, the Court concluded that the Fourth Amendment requirement that searches be reasonable applies to the states as well as the federal government, and that evidence obtained in unlawful searches is inadmissible. But the Court also found by a 5–4 split that the search of Ker’s apartment was lawful.

Writing for the majority, Justice Tom Clark found that the police had probable cause to arrest Ker, to search his home without a warrant, and to enter his home without first knocking and announcing themselves. Clark wrote that there are common-law exceptions to the knock-and-announce rule known as an “exigent circumstances.” One such exception is if police believe that a knock and announcement would result in the suspect destroying evidence. “In addition to the officers’ belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker’s furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police,” Clark wrote. Clark cited additional exigent circumstances as well. Police need not announce themselves if doing so would jeopardize their safety, if they are in the midst of an emergency, or if knocking would be a futile gesture, such as during the hot pursuit of a fugitive.