Law & the Courts

Unable to Run Its Own Agencies, Washington Dictates to America’s Police

The Capitol Building in Washington, D.C., May 14, 2020 (Erin Scott/Reuters)
The federal government cannot even run its own limited law-enforcement missions properly. Where does it get off micro-managing policing on a nationwide scale?

Here’s a laugh: Washington intends to tell New York how to do policing.

The federal government has one premier law-enforcement agency, the FBI, and a sprawl of more specialized police forces — DEA, ATF, IRS’s criminal-investigation division, etc. These bureaucracies are dwarfed in size and scope by big-city municipal police departments, such as the NYPD. They are also, to be blunt about it, reeling at the moment because they don’t do their jobs very well: long on politicized arm-twisting, short on due process.

The FISA court recently found federal intelligence agencies guilty of an “institutional lack of candor” in dealing with the tribunal. That conclusion has only been bolstered by Justice Department reports outlining stunning abuses of power by the FBI, serial lying and leaking by top officials, fabrication of evidence, and investigations launched on a dearth of predication and furthered by entrapment tactics and perjury traps. We never did get to the bottom of the Justice Department’s “Fast and Furious” scandal, in which the ATF allowed illegal firearms transfers into Mexico — evidently hoping to fuel a political narrative against the Second Amendment but succeeding only in fueling violent Mexican gang crime that claimed the life of a border-patrol agent. A federal appeals court echoed a district judge in New Orleans, who was appalled when Obama Justice Department lawyers anonymously led a race-baiting press campaign to undermine the trial rights of indicted police officers and then misled and stonewalled investigators who tried to find out what happened. And speaking of misleading and stonewalling, they explain why we never got accountability for the bare-knuckles tactics the IRS used to harass conservative groups.

That’s just a thumbnail sketch. We could go on. I’d rather not go on, because these incidents sully the reputations of thousands of agents who go about their work honorably, day in and day out. But these incidents represent management failures, misfeasance and malfeasance at the high echelons of federal law enforcement. It is thus doubly important to highlight them because, in the wake of the George Floyd killing and the uproar that followed, the federal government is now presuming to dictate how state and local police forces must do their jobs.

The federal government cannot even run its own limited law-enforcement missions properly. Where does it get off micromanaging policing on a nationwide scale, which deals with community-safety issues that are outside the federal ken? As Heather Mac Donald points out, the NYPD has driven homicide in the nation’s biggest city down by 86 percent since 1990, saving tens of thousands of lives, mostly in minority communities previously plagued by violent crime. Can any federal police force boast of such an achievement?

Don’t be drawn in too much by the “Defund the Police” gambit now being pushed by the hard Democratic Left and its allied Black Lives Matter demagogues. To be sure, this is going to be a long-term problem because, while broadly acknowledged as lunacy (at least when the cameras aren’t rolling), it is becoming — like the inane Green New Deal — a litmus test for political viability in the Democratic Party. This is what happens when a party’s mainstream decides it needs the tiger it has by the tail . . . pretty soon, it’s not the mainstream anymore. In just a cycle or two, Bernie Sanders and AOC go from fringe socialists to elder statesman and policy guru.

The Left’s plan is not to defund the police. It is to denude the police — to strip them of their capacity to act and their legitimacy as keepers of the peace.

The plan is not new. I outlined it many times during the Obama presidency, during which the Justice Department made it a priority to supplant the intelligence-based, broken-windows approach to policing — the approach that gave America an unprecedented generation of record-low crime and safe urban streets.

Intelligence-based policing scrutinizes dynamic ranges of data points to deploy the police where the crime is. It is driven by offense behavior. In stark contrast, progressive-fantasy policing pretends that the police encounter minority suspects, particularly black men, because the police are institutionally racist, not because these suspects are responsible for a high percentage of crime — much higher than their demographics’ proportions of the total population.

Consequently, progressives theorize that police should back off from investigative activity in criminal hot spots, which is distorted into “racial profiling.” Instead, cops are told to rely on community leaders — typically allied with big-city Democrats — to be their eyes and ears. In this, Democrats can always rely on a mass of Republicans, who echo their tropes about our “carceral state” and the desperate need for “criminal-justice reform” — as if the prisons were teeming with non-violent marijuana tokers rather than hardened criminals with long records (reflecting the system’s practice of pleading serious offenses down to petty ones, the better to get criminals back on the street more rapidly).

The “defunding” rhetoric aside, the idea is not to make municipal police departments disappear. It is to bludgeon them with federal dollars collected from the taxpayers who most need competent policing. As I’ve detailed, a big part of the strategy is Justice Department civil-rights litigation. The Justice Department uses controversial police incidents as a pretext to open “pattern or practice” investigations and sue municipalities or their police departments under a pernicious Clinton-era civil-rights law. Since municipalities cannot afford to go toe-to-toe with the Justice Department’s $30 billion annual budget, they are pressured into consent decrees, often with federal monitors, in which they agree to adopt the Left’s approved police practices.

This had momentum during the Obama years, but it is a gradual process that can be slowed by the election of a more law-and-order-oriented administration (which tends to happen when the public has had its fill of what progressive policies yield on the streets). The more sweeping approach is percolating in Congress now: Washington-prescribed transformation of the nation’s police departments, using the threat that federal funds will be withheld if the Left’s preferred “reforms” are not made. (“Wait,” you are saying to yourself, “isn’t that what Democrats were calling ‘extortion’ five minutes ago when President Trump was threatening sanctuary cities?” You’re not wrong.)

It is not just that the federal law-enforcement agencies for which Washington is actually responsible are mired in scandal right now. We must remember that the revolution in policing practices that ushered in an era of low crime, domestic tranquility, and economic prosperity was driven by city and state police departments, not Washington.

Policing is a human endeavor. There are always going to be instances of abuse, whether at the federal, state, or municipal level. There will inevitably be occasional abuses, such as George Floyd’s senseless killing, that shock the nation. On the whole, though, the federal glass house should keep its stones to itself. The United States is a vast, variegated country. The best policing is sensitive to the different concerns of the diverse communities it reflects, protects, and serves. There is nothing prudent about forcing one-size-fits-all federal standards on it.


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