Police Abuse

These Police Tactics Are Threatening Your Civil Liberties

From militarization to asset forfeiture, cops across the country are dodging the Constitution


You can't blame police departments if they feel a trifle besieged these days. But police departments cannot blame anyone but themselves for that circumstance. They keep pushing the envelope—as a recent exposé of phone-data collection in southeastern Virginia demonstrates. (More on that momentarily.)

New York has largely abandoned its experiment with stop-and-frisk, in no small part because its results proved disastrous: Only 2 percent of stops uncovered contraband. That amounts to a 98 percent failure rate—even though officers ostensibly stopped only those who, based on their vast law-enforcement experience, looked suspicious.

The Ferguson, Missouri, police department's heavily armored response to riots in August provoked a national backlash against the militarization of domestic law-enforcement agencies. When they learned how many small-town police departments had been outfitted with mine-resistant armored personnel carriers, flashbang grenades, sniper rifles and other materiel of war, even many law-and-order conservatives decided things had gone too far.

Virginia's previous Attorney General, Ken Cuccinelli, certainly qualifies as a law-and-order conservative, perhaps more so than just about anyone. But last year Cuccinelli issued an opinion warning law-enforcement agencies not to stockpile data from license-plate readers, as many had been doing. Such data could be collected, he said, only if it were directly related to a criminal case.

Virginia legislator Mark Cole is another law-and-order conservative. But as noted in this column a week ago, he has introduced legislation to rein in the abuse of civil asset forfeiture, which allows authorities to confiscate houses, cars, and money from citizens without ever charging them with a crime. Cole says such policing for profit is "simply un-American."

And last year Virginia's conservative state legislature passed, and its conservative Republican governor Bob McDonnell (another former attorney general) signed, a two-year moratorium on the use of aerial drones by law enforcement.

Now comes news from the Center for Investigative Reporting that five police departments in Hampton Roads have been collecting and sharing cell-phone data. The information—shared by the departments in Hampton, Newport News, Norfolk, Chesapeake, and Suffolk—comes from subpoenas to service providers and from cell phones that have been seized in the course of an arrest.

The State Police had an opportunity to join the program, known as the Hampton Roads Telephone Analysis Sharing Network. It declined, according to the Norfolk Virginian-Pilot, "because of concerns about its legality." The State Police worried that the program was forbidden by the Government Data Collection and Dissemination Practices Act—the same law that formed the basis for Cuccinelli's warning against dragnet collection of license-plate data.

What's more, a unanimous Supreme Court ruled this summer that the police must obtain a warrant to download data from a suspect's cellphone. The Hamton Roads network participants aren't doing that. Moreover, the departments are sharing information from the database upon request. Kelvin Wright, the police chief in Chesapeake, stresses that the requests must have a specific investigative purpose. But that's not good enough. As a lawyer for the Virginia ACLU pointed out: Not only is a warrant necessary for the first look at the contents of a seized phone, a new warrant is needed if a second agency wants a look.

The five law-enforcement agencies are maintaining a cone of silence about the program, which is run by the Peninsula Narcotics Enforcement Task Force. (Chalk up another dubious victory for the War on Drugs.) A spokesman for the Hampton Police Department says providing details "could jeopardize ongoing and potential future investigations." Oh? Since we don't know what "potential future investigations" might investigate, it's hard to say what could "jeopardize"—whatever that means—those investigations. That amounts to an argument for never disclosing anything about almost any departmental policy—let alone eavesdropping.

Not that local elected officials seem very curious, mind you. The Hampton Roads Daily Press reports that neither the Hampton nor the Norfolk City Council even voted to join the data collection program. Both Newport News and Chesapeake included participation on their consent agendas—which are meant for routine, pro forma items—and approved it unanimously.

But localities in Virginia are nothing more than ministerial agents of the state, to which they must answer. So state legislators should demand a full accounting of the dragnet data program to clear up unanswered questions such as (1) whether it ever collects the content of text messages, Internet searches, and other cellphone features, or the metadata only; (2) how many citizens' data has been collected; (3) who else the data has been shared with, such as federal authorities or so-called fusion centers; (4) what legal authority the localities claim for collecting and sharing the data; (5) how long the data are kept; and (6) which specific crimes have been solved as a direct result of the data collection.

Too often, law-enforcement agencies claim sweeping powers and then justify them with vague assurances about their effectiveness that turn out to be false (see: frisk, stop-and). If you don't support a specific program, is the not-so-subtle implication, then you're aiding and abetting crime.

Bunk. People should not have to surrender either privacy or due process as the price of safe streets. Constitutionally guaranteed liberties might sometimes incommode the police. But law enforcement, as the term implies, is obliged to enforce the laws that protect civil liberties too.

NEXT: FBI Admits It Created Fake AP News Story

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  1. You can’t blame police departments if they feel a trifle besieged these days.

    This sentence is heavily laced with the virus of milquetoast.

    1. Cone of silence? That’s a Magenta Alert.


  2. Why oh why does the bigorati hate our heroes so much?

  3. Dodging the constitution?

    More like wiping their arses with it on a daily basis.

  4. cops across the country are dodging the Constitution

    Don’t you mean using it as toilet paper?

  5. Since when does “trampling under jack-booted foot” equal ‘putting at risk’?
    The ‘risk’ is only visible in the rear-view mirror, receding rapidly.

  6. “Even conservative politicians oppose police abuse” has become Reason’s version of “even the liberal New Republic” – from back when the New Republic wasn’t always reliably liberal.

    1. There’s some truth to it though. As a milquetoast lower middle class middle aged dumpy white guy with teabagger tendencies, they’ve lost me as a constituency.

  7. Too often, law-enforcement agencies claim sweeping powers and then justify them with vague assurances about their effectiveness that turn out to be false (see: frisk, stop-and). If you don’t support a specific program, is the not-so-subtle implication, then you’re aiding and abetting crime.

    Like any sweeping accusation of being evil incarnate for resisting statism, the correct answer to hold your ground, ignore the accusation entirely, and restate your position as defending the rights of the American citizen. Then put the law-and-orders on the defensive by accusing them of being paranoid and tyrannical.

  8. Rand talks about asset forfeiture by the IRS. I would like him to also talk about asset forfeiture by the police with respect to the drug war.

    1. New here?

  9. These Police [s]Tactics[/s] Are Threatening Your Civil Liberties


    1. What sort of markup code does Reason use for the comments section? Never got the memo. I comment here roughly four or five times a year, since I usually just laugh my major organs out through my ears reading them.

      1. Html.

        was this what you were trying to achieve?

        1. Trying may be the correct word.

  10. The reason the cops found guns on the friskees only two percent of the time was because the hoods in these neighborhoods knew they might be stopped and frisked and therefore didn’t carry. If the cops frisked them now, after the policy’s been suspended for awhile, they’d find a much bigger percentage who’re armed. The law-abiding people in these neighborhoods want the frisking continued because it holds down crime.I suspect even libertarian residents of the neighborhood feel the same. All libertarian theories don’t play out well in real life.

    1. Fuck off slaver

    2. If law abiding people were allowed to conceal carry there would be no need for stop and frisk in the first place since thugs would know to not be there.

      1. Absolutely. Problem is, New Yorkers aren’t allowed to exercise that Constitutional right; and the peaceable folks in those targeted neighborhoods don’t want to face daily victimization by armed thugs until the day when they can legally defend themselves. Stop-and-frisk is, or was, an immediate stopgap that made their lives somewhat less dangerous, which is why so many of them want it to continue. My point is, this is one of life’s messy, inconvenient realities that many libertarians refuse to recognize, let alone sympathize with. That attitude, in my view, is why we’d have a hard time getting Santa Claus elected dog catcher despite the growing acceptance of our ideas. Americans are simply not going to adopt wholesale libertarianism overnight. In the meantime, they will opt for here-and-now relief in survival situations, whether it agrees with the libertarian ideal or not. If we condemn them for that?especially with one of those patented, smartass, libertarian smirks and some name-calling to boot?they will continue to reject our candidates as they have since 1971. The only way to political success is to start by accepting people and situations as they actually are, instead of as you wish they were, and work from there. If you don’t, you get the results that the LP has consistently gotten since its founding.

        1. Seems like you have a pretty self-defeating argument. Government fixing a problem caused by government? Swell, it’s working fine.

          I posit to you that there would very likely be a scarcity of “hoods” and crime if we were even remotely libertarian in the first place.

          /*patented* sarc

          1. Um,FYI, I didn’t present an argument of any kind except to agree with Ron about the benefits of an armed populace. What I did was comment on a trait of many libertarians that I think costs the LP votes.

        2. Holy Fuck! Libertarians don’t get votes because no body knows who our candidates are, ballot access hurdles eat all our campaign time and single member plurality districting.

          1. All true as well.

  11. Good point, Eggy, and a typical libertarian response. Cogent arguments like that are responsible for the LP’s resounding successes at the polls.

    1. Boring Mary returns. Good, now I can get some sleep.

    2. Bearing arms is a sign of a free person. Stop and frisk is the tactic of an occupying army.
      Short form: Fuck off, slaver.

      1. Free people are scary to Mary.

  12. Excellent article with the exception of the repeated canard that if it’s Terry does not discover contraband it is a bad Terry

    That is more stupid than saying that if a search warrant discovers evidence it must be a good search warrant

    NYPD stop and frisk program was bad because process analysis revealed it to be largely unconstitutional not because of results analysis revealed that it only rarely produced contraband especially considering most Terry’s should not even involve a frisk and the purpose of a frisk is NOT to produce contraband or evidence the purpose of a frisk is for safety

    A Frisk that does not produce evidence of any weapon legal or not or contraband can still be an excellent frisk if justified by process analysis and of course whether or not a weapon is discovered once the Frisk is completed it can help de escalate a stop which is a substantial goal of the Frisk

    When I was lawfully stopped and frisked based on reasonable suspicion for armed robbery the Frisk was most definitely a good frisk as justified by process analysis even though it did not discover a weapon and of course it allowed for a quicker de-escalation as well as a quicker release and releasing a person is a good thing

    If I am frisking multiple individuals at a Terry the goal is so that I can further investigate without having to worry about one of the persons shooting in the back well I am speaking to another person it has nothing to do with contraband

    1. Personally I’d estimate I frisk in about 20% of my Terry’s

      Anecdotally my best friend was shot and killed during a Terry by a scumbag BGD

    2. If your car failed to start 49 times out of 50, what would you think about that car? “CRAP.”
      The “analysis” is obvious crap. NYC’s stop and frisk weren’t legitimate Terry stops. Walking down a street isn’t “unusual conduct which leads him to reasonably suspect criminal activity may be occurring.”

    3. Technically correct, you are arguing that just because it failed to find anything doesn’t speak to whether or not it was good. That being said, unless we actually know all facts (including the state of mind of the frisker), statistical evidence is pretty much the only thing we have to go on; which is to say that 2% “success” rate is abysmally low. This means that all of those searches should be questioned.

      Perhaps there were a few “good” ones. The statistics heavilly show that the majority weren’t “good”.

  13. Much better, Eggy. Congratulations. Not so hard, was it? Lose the snark and you’re good to go.

  14. In the picture that accompanied this article on the main page, the second cop from the left looks a lot like a guy I went to college with. Dude was a total asshat, so I wouldn’t be that surprised if he became a cop.

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