Jake Monaghan

Federal law enforcement officers in various agencies in the Department of Homeland Security have been deployed to police protestors in Portland, OR. This development in the protests against police, and the police responses to them, highlight two different kinds of problems: those that come from the decentralization of local agencies and those that come from the centralization of federal agencies.

The federal officers, dressed in camouflage, have been detaining people in unmarked minivans. At least some of them are not wearing badges that identity their agency. The badges other officers are wearing are small and difficult to read, especially when a group of officers grab you and toss you into a van before speeding off. Federal agents are also using chemical irritants to disperse protests. In at least one incident, they attacked two people who appear to be medics providing care to someone laying on a sidewalk. It is hard to discern any legitimate police goal that was achieved from shoving them to the ground and threatening to strike them with batons. In another particularly awful incident, a protestor is shot in the face with an “impact” or “non-lethal” munition. In yet another, federal police repeatedly strike a protestor, who seemingly posing no threat, with a baton and then spray teargas into his face.

When asked what justifies the use of federal forces in Portland, the DHS has pointed to destruction of federal property. The list includes a broken window and many instances of graffiti, which is of course a far cry from their claim that the city has been “under siege for 47 straight days by a violent mob.” Acting Homeland Security Deputy Secretary Ken Cuccinelli complains that Portland Mayor Ted Wheeler is “holding back” local law enforcement by not letting them “certain nonlethal tactics.” Meanwhile, the Portland police commissioner has said the federal officers should go home and that their presence is escalating the situation.

This is an unusual situation. Federal force is typically used to respond to protests only when local officials request it. The governor has called this political theatre. It looks worse than that to me. It looks more like the Trump administration probably violating the law to punish political enemies and to rile up his base. The administration has threatened to use similar tactics in other cities. And of course, since they are cities, they are Trump’s political enemies.

The situation demonstrates the importance of clearly marked law enforcement officers. One of the problems with “secret police” is the lack of accountability. If they violate your rights, who would you object to? Another is that it undermines one of the major justifications of a public police force, which is that a publicly accountable police force is supposed to give you reasons to comply and let the courts adjudicate the issue. But if you’re not sure who is tossing you into the back of a minivan, it is far from clear that you have a reason to comply. It is a different manifestation of the problem we see with no-knock SWAT raids in which people, fearing that their home is being invaded by criminals, use defensive force against unidentified officers. But this is probably not the main problem, which would remain even if the federal agents were more clearly identified.

The main problem is that the federal agents have little in the way of democratic authorization or other justification for their uses of force. The tactics to disperse protestors are clearly excessive. Further, the Trump administration is overriding the authority of local officials and police. The authority to deploy federal law enforcement to Portland apparently comes from regulations allowing CBP officers to operate with fewer constitutional restrictions in the “border zone” that extends 100 miles from the border. Though even that is unclear; the Trump administration has not explained the legal basis for these deployments. Like the Portland police commissioner, state and local officials have also requested that the DHS withdraw their officers.

A common complaint in criminal justice reforms circles is that the extreme decentralization of policing makes reform nearly impossible. With 18,000 police agencies, most reform efforts will need to occur independently all over the country. Another problem is that when officers are fired from one department, they often can find work at another nearby department. These are real problems, and they have contributed to the protests federal officers have been deployed to police.

But they are probably less significant than if the president was the head of a national police force in the way that the president is the head of the military. The Trump administration makes that clear. It’s true that local departments already have a less than stellar track record when it comes to policing protests. But police chiefs and commissioners don’t usually appear to be motivated to punish political opponents, in part because they’re not directly elected. And if they do punish political opponents, at least the voters in Portland or Chicago don’t have to worry about suburbanites who aren’t on the receiving end of the bad policing voting for a presidential candidate who promises to use the police to violate their civil liberties.

Another related problem is one of selection effects. People have long worried that eliminating residency requirements in local police departments will result in communities being policed by outsiders who lack local knowledge or sympathy with residents. When the agency doing the law enforcement is widely loathed, and staffed by people across the nation who simply accept that they are widely loathed, we can expect even less local knowledge and sympathy with residents. Using federal agents for local policing causes some of the same problems that having the military engage in domestic policing does.

These two problems undermine the democratic authorization of centralized police forces. Of course, there are few proponents of a national police force. If this is right, though, it informs normative questions about consolidating police forces. Elinor Ostrom researched this question and found that people are more satisfied with more local police power. Using federal police to respond to protests is probably illegitimate because it gives non-locals too much say over local issues. Similarly, a police agency that has a jurisdiction much larger than a city is likely to suffer the same problem. People who live in the city and are likely to be heavily policed, for example, probably have very different views about what good policing looks like than those who live in the suburbs and enter the city just to work.

Theorizing about justice in real political systems is a game of picking our problems. Decentralization surely leads to problems of its own, ones that have partially caused recent protests. But they also look less serious than ones we could expect if the Trump administration had more control over local policing.

One of the (many) moral problems of policing in the US is that law enforcement strategies often fail a proportionality requirement. The principle of proportionality is often invoked in discussions of the morality of the use of force, whether it is force used to achieve military or police goals, or for individual self-defense. It is impermissible to use force that causes significantly more harm than the benefit caused by achieving one’s goal. Police are not permitted to shoot fleeing robbery suspects, for example. Proportionality also informs distributional concerns. Justice requires not just that we minimize errors in criminal trials, but that we achieve a particular distribution of errors. We tend to accept an increase in false findings of innocence as a cost of reducing false findings of guilt. A legal system that imposes costs on the innocent too frequently in the course of punishing the guilty will be disproportionate because the harm required to punish the guilty would be too great. Here I’ll argue that proportionality constrains not just use of force policies, but also the selection of strategies for enforcing law.

I’ve argued elsewhere that a proportionality principle constrains the tactics police officers are permitted to use when responding to protests and demonstrations. But there are some police strategies that fail a proportionality requirement even if officers rarely resort to physical force. Most strategies that rely on “filtering” are unlikely to meet the requirement.

Consider the stop and frisk strategy employed by the NYPD during the 2000s and early 2010s. This practice became intensely controversial because a majority of the New Yorkers stopped, questioned, and frisked where Black or Hispanic. At the time, Mayor Bloomberg insisted that officers stopped people based on their behavior, not their appearance. At the peak of stop and frisk, the NYPD averaged around 1200 stops per day which resulted in around 70 arrests, and only 2 on illegal gun possession charges. In other words, with a success rate of around 6 percent, the NYPD did not appear to have a great sense of which behaviors indicated criminal activity. Even putting aside the threat of force required in each stop, police stops are not trivial incursions into a person’s life. Around 94 percent of the people the NYPD stopped in a day who had to bear those costs were innocent. This means that the strategy, even granting that it reduced crime and successfully enforced legitimate laws (both of which are controversial), has a significant number of false “findings of guilt.” Given the huge number of innocent people stopped as part of the strategy, it is not proportional.

Similarly, consider the use of traffic stops for criminal law enforcement. The LAPD, like most police departments, uses traffic stops to find illegal guns and drugs. Even if this is a common way for officers to make arrests and remove illegal guns from the streets, it is unlikely that one can make accurate judgements about who is breaking the law simply by looking at the exterior of one’s vehicle. This leads to officers pulling motorists over for violating traffic laws just to examine the driver and the inside of the vehicle. There are serious concerns about racist police activity in this context too. Black drivers are less likely to be pulled over at night when the driver’s race is “masked.” Even if there weren’t concerns about racist enforcement, however, the concern about proportionality remains. The ultimate reason for the traffic stop is to investigate criminal activity, but most of the people stopped are innocent. Filtering strategies that rely on stopping large numbers of people, most of whom are innocent, to find a small number of guilty people, fail a proportionality requirement.

Evaluating these strategies in terms of proportionality is useful because it lets us avoid arguing about the presumption of innocence. You might think that these strategies undermine the presumption of innocence (I do), but that objection is less useful against strategies that rely on pretextual stops. Traffic laws, or anti-loitering laws, are tools for enabling more invasive police interactions. The goal is rarely to enforce the law that an officer witnesses one violating, but rather to look for criminal activity.

If this is right, then proportionality is also a tool for evaluating law enforcement strategies. This is useful because determining the just administration of law is separate from the question of which laws are just. Though the former has gotten less attention, it is still important. This kind of argument about proportionality plays a role in some of the work on policing I’m doing now.